JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join.
We are called upon in this case to determine whether a United States Postal Service regulation that prohibits
The respondents in this case, Marsha B. Kokinda and Kevin E. Pearl, were volunteers for the National Democratic Policy Committee, who set up a table on the sidewalk near the entrance of the Bowie, Maryland, Post Office to solicit contributions, sell books and subscriptions to the organization's newspaper, and distribute literature addressing a variety of political issues. The postal sidewalk provides the sole means by which customers of the post office may travel from the parking lot to the post office building and lies entirely on Postal Service property. The District Court for the District of Maryland described the layout of the post office as follows:
During the several hours that respondents were at the post office, postal employees received between 40 and 50 complaints regarding their presence. The record does not indicate the substance of the complaints with one exception. One individual complained "because she knew the Girl Scouts were not allowed to sell cookies on federal property." 866 F.2d 699, 705 (CA4 1989). The Bowie postmaster asked respondents to leave, which they refused to do. Postal inspectors
Respondents were tried before a United States Magistrate in the District of Maryland and convicted of violating 39 CFR § 232.1(h)(1) (1989), which provides in relevant part:
Respondent Kokinda was fined $50 and sentenced to 10 days' imprisonment; respondent Pearl was fined $100 and received a 30-day suspended sentence under that provision.
Respondents appealed their convictions to the District Court, asserting that application of § 232.1(h)(1) violated the First Amendment. The District Court affirmed their convictions, holding that the postal sidewalk was not a public forum and that the Postal Service's ban on solicitation is reasonable.
A divided panel of the United States Court of Appeals for the Fourth Circuit reversed. 866 F.2d 699 (1989). The Court of Appeals held that the postal sidewalk is a traditional public forum and analyzed the regulation as a time, place, and manner regulation. The court determined that the Government has no significant interest in banning solicitation and that the regulation is not narrowly tailored to accomplish the asserted governmental interest.
The United States' petition for rehearing and a suggestion for rehearing en banc were denied. Because the decision below conflicts with other decisions by the Courts of Appeals, see United States v. Belsky, 799 F.2d 1485 (CA11 1986); United States v. Bjerke, 796 F.2d 643 (CA3 1986), we granted certiorari. 493 U.S. 807 (1989).
Solicitation is a recognized form of speech protected by the First Amendment. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 629 (1980); Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 788-789, (1988). Under our First Amendment jurisprudence, we must determine the level of scrutiny that applies to the regulation of protected speech at issue.
The Government's ownership of property does not automatically open that property to the public. United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129 (1981). It is a long-settled principle that governmental actions are subject to a lower level of First Amendment scrutiny when "the governmental function operating. . . [is] not the power to regulate or license, as lawmaker, . . . but, rather, as proprietor, to manage [its] internal operation[s] . . . ." Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896 (1961). That distinction was reflected in the plurality opinion in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), which upheld a ban on political advertisements in city transit vehicles:
The Government, even when acting in its proprietary capacity, does not enjoy absolute freedom from First Amendment constraints, as does a private business, but its action
Since Lehman, "the Court has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum." Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 800 (1985). In Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983), the Court announced a tripartite framework for determining how First Amendment interests are to be analyzed with respect to Government property. Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny. Id., at 45. Regulation of speech on property that the Government has expressly dedicated to speech activity is also
Respondents contend that although the sidewalk is on Postal Service property, because it is not distinguishable from the municipal sidewalk across the parking lot from the post office's entrance, it must be a traditional public forum and therefore subject to strict scrutiny. This argument is unpersuasive. The mere physical characteristics of the property cannot dictate forum analysis. If they did, then Greer v. Spock, 424 U.S. 828 (1976), would have been decided differently. In that case, we held that even though a military base permitted free civilian access to certain unrestricted areas, the base was a nonpublic forum. The presence of sidewalks and streets within the base did not require a finding that it was a public forum. Id., at 835-837.
The postal sidewalk at issue does not have the characteristics of public sidewalks traditionally open to expressive activity. The municipal sidewalk that runs parallel to the road in this case is a public passageway. The Postal Service's sidewalk is not such a thoroughfare. Rather, it leads only from the parking area to the front door of the post office. Unlike the public street described in Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981), which was "continually open, often uncongested, and constitute[d] not only a necessary conduit in the daily affairs of a locality's citizens, but also a place where people [could] enjoy the open air or the company of friends and neighbors in a relaxed environment," id., at 651, the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business. The sidewalk leading to the entry of the post office is not the traditional public forum sidewalk referred to in Perry.
Nor is the right of access under consideration in this case the quintessential public sidewalk which we addressed in
Grace instructs that the dissent is simply incorrect in asserting that every public sidewalk is a public forum. Post, at 745. As we recognized in Grace, the location and purpose
The dissent's attempt to distinguish Greer is also unpersuasive. The dissent finds Greer "readily distinguishable" because the sidewalk in that case "was not truly `open' to the public." Post, at 748, n. 5. This assertion is surprising in light of JUSTICE BRENNAN'S description of the public access permitted in Greer:
In Greer we held that the power of the Fort's commanding officer summarily to exclude civilians from the area of his command demonstrated that "[t]he notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is . . . historically and constitutionally false." Id., at 838. It is the latter inquiry that has animated our traditional public forum analysis, and that we apply today. Postal entryways, like the walkways at issue in Greer, may be open to the public, but that fact alone does not establish that such areas must be treated as traditional public fora under the First Amendment.
Thus, the regulation at issue must be analyzed under the standards set forth for nonpublic fora: It must be reasonable and "not an effort to suppress expression merely because public officials oppose the speaker's view." Perry, supra, at 46. Indeed, "[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius, supra, at 806. "The Government's decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation." 473 U. S., at 808.
The history of regulation of solicitation in post offices demonstrates the reasonableness of the provision here at issue. The Postal Service has been regulating solicitation at least since 1958. Before enactment of the 1970 Postal Reorganization Act, Pub. L. 91-375, 84 Stat. 720, 39 U. S. C. § 201 et seq., the Post Office Department's internal guidelines "strictly prohibited" the "[s]oliciting [of] subscriptions, canvassing for the sale of any article, or making collections . . . in buildings operated by the Post Office Department, or on the grounds or sidewalks within the lot lines" of postal premises. Postal Service Manual, Facilities Transmittal Letter 8, Buildings Operation: Buildings Operated by the Post Office Department § 622.8 (July 1958). The Department prohibited all forms of solicitation until 1963, at which time it created an exception to its categorical ban on solicitation to enable certain "established national health, welfare, and veterans' organizations" to conduct fund drives "at or within" postal premises with the local postmaster's permission, and at his discretion. See Facilities Transmittal Letter 53, Buildings Operation: Buildings Operated by the Post Office Department § 622.8 (July 1963). The general prohibition on solicitation was enlarged in 1972 to include "[s]oliciting alms and contributions or collecting private debts on postal premises." 37 Fed. Reg. 24347 (1972), codified at 39 CFR § 232.6(h)(1) (1973).
Soon after the 1972 amendment to the regulation, the Service expanded the exemption to encompass "[n]ational organizations which are wholly nonprofit in nature and which are devoted to charitable or philanthropic purposes" and "[l]ocal charitable and other nonprofit organizations," 39 CFR §§ 232.6(h)(2), (3) (1974), and to permit these organizations to "request use of lobby space for annual or special fund raising campaigns, providing they do not interfere with the transaction of postal business or require expenditures by the Postal Service or the use of its employees or equipment."
"[C]onsideration of a forum's special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved." Heffron, 452 U. S., at 650-651. The purpose of the forum in this case is to accomplish the most efficient and effective postal delivery system. See 39 U. S. C. §§ 403(a), 403(b)(1); H. R. Rep. No. 91-1104, pp. 1, 5, 11-12, 17, 19 (1970). Congress has made clear that "it wished the Postal Service to be run more like a business than had its predecessor, the Post Office Department." Franchise Tax Board of California v. United States Postal Service, 467 U.S. 512, 519-520, and n. 13 (1984). Congress has directed the Service to become a self-sustaining service industry and to "seek out the needs and desires of its present and potential customers —the American public" and to provide services in a manner "responsive" to the "needs of the American people." H. R. Rep. No. 91-1104, supra, at 19-20. The Postal Service has been entrusted with this mission at a time when the mail service market is becoming much more competitive. It is with this mission in mind that we must examine the regulation at issue.
The Government asserts that it is reasonable to restrict access of postal premises to solicitation, because solicitation is inherently disruptive of the Postal Service's business. We
The dissent avoids determining whether the sidewalk is a public forum because it believes the regulation, 39 CFR § 232.1(h) (1989), does not pass muster even under the reasonableness standard applicable to nonpublic fora. In concluding that § 232.1(h) is unreasonable, the dissent relies heavily on the fact that the Service permits other types of potentially disruptive speech on a case-by-case basis. The dissent's criticism in this regard seems to be that solicitation is not receiving the same treatment by the Postal Service that other forms of speech receive. See post, at 760 (criticizing "inconsistent treatment"). That claim, however, is more properly addressed under the equal protection component of the Fifth Amendment. In any event, it is anomalous that the Service's allowance of some avenues of speech would be relied upon as evidence that it is impermissibly suppressing other speech. If anything, the Service's generous accommodation of some types of speech testifies to its willingness to provide as broad a forum as possible, consistent with its postal mission. The dissent would create, in the name of the First Amendment, a disincentive for the Government to dedicate its property to any speech activities at all. In the end, its approach permits it to sidestep the single issue before us: Is the Government's prohibition of solicitation on postal sidewalks unreasonable?
Whether or not the Service permits other forms of speech, which may or may not be disruptive, it is not unreasonable to prohibit solicitation on the ground that it is unquestionably a particular form of speech that is disruptive of business. Solicitation
This description of the disruption and delay caused by solicitation rings of "common-sense," ibid., which is sufficient
The Postal Service's judgment is based on its long experience with solicitation. It has learned from this experience that because of a continual demand from a wide range of groups for permission to conduct fundraising or vending on postal premises, postal facility managers were distracted from their primary jobs by the need to expend considerable time and energy fielding competing demands for space and administering a program of permits and approvals. See Tr. of Oral Arg. 9 ("The Postal Service concluded after an experience with limited solicitation that there wasn't enough room for everybody who wanted to solicit on postal property and further concluded that allowing limited solicitation carried with it more problems than it was worth"). Thus, the Service found that "even the limited activities permitted by [its] program . . . produced highly unsatisfactory results." 42 Fed. Reg. 63911 (1977). It is on the basis of this real-world experience that the Postal Service enacted the regulation at issue in this case. The Service also enacted regulations barring deposit or display of written materials except on authorized bulletin boards "to regain space for the effective display of postal materials and the efficient transaction of postal business, eliminate safety hazards, reduce maintenance costs, and improve the appearance of exterior and public-use areas on postal premises." 43 Fed. Reg. 38824 (1978); see 39 CFR § 232.1(o) (1989). In short, the Postal Service has prohibited the use of its property and resources where the intrusion creates siguificant interference with Congress' mandate to ensure the most effective and efficient distribution of the mails. This is hardly unreasonable.
The dissent concludes that the Service's administrative concerns are unreasonable, largely because of the existence of less restrictive alternatives to the regulations at issue. See post, at 761-763. Even if more narrowly tailored regulations could be promulgated, however, the Postal Service is
The dissent also would strike the regulation on the ground that the Postal Service enacted it because solicitation "would be likely to produce hostile reactions and to cause people to avoid post offices." 43 Fed. Reg. 38824 (1978). The dissent reads into the Postal Service's realistic concern with losing postal business because of the uncomfortable atmosphere created by aggressive solicitation an intent to suppress certain views. See post, at 754. But the Postal Service has never intimated that it intends to suppress the views of any "disfavored or unpopular political advocacy group." Ibid. It is the inherent nature of solicitation itself, a content-neutral ground, that the Service justifiably relies upon when it concludes that solicitation is disruptive of its business. The regulation is premised on the Service's long experience, on the fact that solicitation is inherently more disruptive than the other speech activities it permits, and on the Service's empirically based conclusion that a case-by-case approach to regulation of solicitation is unworkable.
Clearly, the regulation does not discriminate on the basis of content or viewpoint. Indeed, "[n]othing suggests the Postal Service intended to discourage one viewpoint and advance another. . . . By excluding all . . . groups from engaging in [solicitation] the Postal Service is not granting to `one side of a debatable public question . . . a monopoly in expressing its views.'" Monterey County Democratic Central Committee v. United States Postal Service, 812 F.2d 1194, 1198-1199 (CA9 1987) (citation omitted). The Service's concern about losing customers because of the potentially unpleasant situation created by solicitation per se does not reveal "an effort to suppress expression merely because public officials oppose the speaker's view." Perry, 460 U. S., at 45-46.
The judgment of the Court of Appeals is
JUSTICE KENNEDY, concurring in the judgment.
I agree that the postal regulation reviewed here does not violate the First Amendment. Because my analysis differs in essential respects from that in JUSTICE O'CONNOR'S opinion, a separate statement of my views is required.
Many of those who use postal facilities do so from necessity, not choice. They must go to a post office to conduct their business and personal correspondence, carrying cash for stamps or money orders. While it is legitimate for the Postal Service to ensure convenient and unimpeded access for postal patrons, the public's use of postal property for communicative purposes means that the surrounding walkways may be an appropriate place for the exercise of vital rights of expression. As society becomes more insular in character, it becomes essential to protect public places where traditional modes of speech and forms of expression can take place. It is true that the uses of the adjacent public buildings and the needs of its patrons are an important part of a balance, but there remains a powerful argument that, because of the wide range of activities that the Government permits to take place on this postal sidewalk, it is more than a nonpublic forum.
This is so even though the Government may intend to impose some limitations on the forum's use. If our public forum jurisprudence is to retain vitality, we must recognize that certain objective characteristics of Government property and its customary use by the public may control the
It is not necessary, however, to make a precise determination whether this sidewalk and others like it are public or nonpublic forums; in my view, the postal regulation at issue meets the traditional standards we have applied to time, place, and manner restrictions of protected expression. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).
"[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions `are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'" Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark, supra, at 293). The regulation, in its only part challenged here, goes no further than to prohibit personal solicitations on postal property for the immediate payment of money. The regulation, as the United States concedes, expressly permits the respondents and all others to engage in
Just as the government has a significant interest in preventing "visual blight" in its cities, City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984), in "maintaining [public] parks . . . in an attractive and intact condition," Clark, supra, at 296, and in "avoiding congestion and maintaining the orderly movement" of persons using a public forum, Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 652 (1981), so the Government here has a significant interest in protecting the integrity of the purposes to which it has dedicated the property, that is, facilitating its customers' postal transactions. Given the Postal Service's past experience with expressive activity on its property, I cannot reject its judgment that in-person solicitation deserves different treatment from alternative forms of solicitation and expression. Cf. id., at 665 (BLACKMUN, J., concurring in part and dissenting in part). The same judgment has been made for the classic public forums in our Nation's capital. The solicitation of money is banned in the District of Columbia on the Mall and other parks under the control of the National Park Service. See 36 CFR § 7.96(h) (1989).
The Postal Service regulation, narrow in its purpose, design, and effect, does not discriminate on the basis of content or viewpoint, is narrowly drawn to serve an important governmental interest, and permits respondents to engage in a broad range of activity to express their views, including the solicitation of financial support. For these reasons, I agree with JUSTICE O'CONNOR that the Postal Service regulation is consistent with the protections of the First Amendment, and concur in the judgment of the Court.
Today the Court holds that a United States Postal Service regulation prohibiting persons from "[s]oliciting alms and contributions" on postal premises does not violate the First Amendment as applied to members of a political advocacy group who solicited contributions from a sidewalk outside the entrance to a post office. A plurality finds that the sidewalk is not a public forum and that the Postal Service regulation is valid because it is "reasonable." JUSTICE KENNEDY concludes that although the sidewalk might well be a public forum, the regulation is permissible as applied because it is a content-neutral time, place, or manner restriction on protected speech.
Neither of these conclusions is justified. I think it clear that the sidewalk in question is a "public forum" and that the Postal Service regulation does not qualify as a content-neutral time, place, or manner restriction. Moreover, even if I did not regard the sidewalk in question as a public forum, I could not subscribe to the plurality's position that respondents can validly be excluded from the sidewalk, because I believe that the distinction drawn by the postal regulation between solicitation and virtually all other kinds of speech is not a reasonable one. For these reasons, I respectfully dissent.
The plurality begins its analysis with the determination that the sidewalk in question is not a "public forum." See ante, at 727-728. Our decisions in recent years have identified three categories of forums in which expression might take place on government property: (1) traditional, "quintessential public forums"—"places which by long tradition or by government fiat have been devoted to assembly and debate,"
The plurality maintains that the postal sidewalk is not a traditional public forum because it "was constructed solely to provide for the passage of individuals engaged in postal business" and "leads only from the parking area to the front door of the post office." Ante, at 727. This reasoning is flawed.
Quintessential examples of a "public forum" are those open spaces—streets, parks, and sidewalks—to which the public generally has unconditional access and which "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. Committee for Industrial Organizations, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.). Public parks, streets, and sidewalks are public forums because open access by all members of the public is integral to their function as central gathering places and arteries of transportation. Public access is not a matter of grace by government officials but rather is inherent in the open nature of the locations. As a result, expressive activity is compatible with the normal use of a public forum and can be accommodated simply by applying the communication-neutral rules used to regulate other, non-speech-related conduct on the premises. See Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) ("The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time"). For the most part, on streets and sidewalks, including the single-purpose sidewalk at issue here, communication between citizens can be permitted according to the principle that "one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional
The wooden distinctions drawn today by the plurality have no basis in our prior cases and, furthermore, are in apparent contradiction to the plurality's admission that "[t]he mere physical characteristics of the property cannot dictate forum analysis." Ante, at 727. It is irrelevant that the sidewalk at issue may have been constructed only to provide access to the Bowie Post Office. Public sidewalks, parks, and streets have been reserved for public use as forums for speech even though government has not constructed them for expressive purposes. Parks are usually constructed to beautify a city and to provide opportunities for recreation, rather than to afford a forum for soapbox orators or leafleteers; streets are built to facilitate transportation, not to enable protesters to conduct marches; and sidewalks are created with pedestrians in mind, not solicitors. Hence, why the sidewalk was built is not salient.
Nor is it important that the sidewalk runs only between the parking lot and post office entrance. The existence of a public forum does not turn on a particularized factual inquiry into whether a sidewalk serves one building or many or whether a street is a dead end or a major thoroughfare. In Boos v. Barry, 485 U.S. 312 (1988), for example, JUSTICE O'CONNOR concluded that the public sidewalks within 500
The architectural idiosyncrasies of the Bowie Post Office are thus not determinative of the question whether the public area around it constitutes a public forum. Rather, that the walkway at issue is a sidewalk open and accessible to the general public is alone sufficient to identify it as a public forum. As the Court of Appeals observed: "It ill behooves us to undertake too intricate a task of designation, holding this sidewalk public and that one not. . . . [S]uch labeling loses sight of the fact that most sidewalks are designed as outdoor public thoroughfares and that citizens should not be left to wonder at which ones they will be permitted to speak and which ones not." 866 F.2d 699, 702 (CA4 1989).
Whatever the proper application of public forum doctrine to novel situations like fundraising drives in the federal workplace, see Cornelius v. NAACP Legal Defense & Educational
Even if I did not believe that the postal sidewalk is a "traditional" public forum within the meaning of our cases, I would find that it is a "limited-purpose" forum from which respondents may not be excluded absent a showing of a compelling interest to which any exclusion is narrowly tailored. We have recognized that even where a forum would not exist but for the decision of government to create it, the government's power to enforce exclusions from the forum is narrowly circumscribed if the government permits a wide range of expression to occur. See Perry Education Assn., 460 U. S., at 45; see also Widmar v. Vincent, 454 U.S. 263, 267-268 (1981); Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175-176 (1976); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,
The plurality acknowledges both that "the forum here has been dedicated to some First Amendment uses and thus is not a purely nonpublic forum," ante, at 730 (emphasis added), and that "the Service's generous accommodation of some types of speech testifies to its willingness to provide as broad a forum as possible, consistent with its postal mission." Ante, at 733. These observations support a finding that the sidewalk is a limited-purpose forum, especially in light of the wide range of expressive activities that are permitted. The postal regulation forbids persons only from "[s]oliciting alms and contributions, campaigning for election to any public office, collecting private debts, commercial soliciting and vending, and displaying or distributing commercial advertising on postal premises." 39 CFR §232.1(h)(1) (1989). The Government thus invites labor picketing, soapbox oratory, distributing literature, holding political rallies, playing music, circulating petitions, or any other form of speech not specifically mentioned in the regulation.
The plurality concludes that the sidewalk is not a limited-purpose forum only by ignoring its earlier observations. The plurality maintains that "a practice of allowing some speech activities on postal property do[es] not add up to the dedication of postal property to speech activities," ante, at 730, and concludes that the Postal Service may close off postal premises to solicitors even though it has opened the forum to virtually every other type of speech. The plurality's conclusion is unsound.
The plurality has collapsed the distinction between exclusions that help define the contours of the forum and those that are imposed after the forum is defined. Because the plurality finds that the prohibition on solicitation is part of the definition of the forum, it does not view the regulation as
The plurality does not, and cannot, explain in the instant case why the postal regulation establishes a policy of "`[s]elective access,'" ante, at 730 (citation omitted), rather than constituting a separate restriction on speech in a limited public forum. Nor can the plurality explain how its reasoning is consistent with our past cases. In Carey v. Brown, 447 U.S. 455, 460 (1980), Grayned v. Rockford, 408 U. S., at 107, and Police Department of Chicago v. Mosley, 408 U. S.,
I would find that the postal sidewalk is a public forum, either of the "traditional" or "limited-purpose" variety.
Content-based restrictions on speech occurring in either a public forum or in a limited-purpose public forum are invalid unless they are narrowly drawn to serve a compelling interest. See Perry Education Assn., 460 U. S., at 45. Government "may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Ibid. I do not think the postal regulation can pass muster under either standard. Although I agree that the Government
I agree with the Court of Appeals that the postal regulation is invalid as applied in this case because it "prohibits all solicitation anywhere on postal service property. It sweeps an entire category of expressive activity off a public forum solely in the interest of administrative convenience. It does not attempt to limit nondisruptive solicitation to a time, place, and manner consistent with post office operations; and it does not require that evidence of disruption be shown." Id., at 705-706.
JUSTICE KENNEDY contends that the postal regulation may be upheld as a content-neutral time, place, or manner regulation. But the regulation is not content neutral; indeed, it is tied explicitly to the content of speech. If a person on postal premises says to members of the public, "Please support my political advocacy group," he cannot be punished. If he says, "Please contribute $10," he is subject to criminal prosecution. His punishment depends entirely on what he says.
The plurality suggests that the regulation is not based on the content of speech, regardless of the terms of the restriction,
In addition, the postal regulation is not a permissible time, place, or manner rule because its prohibition on solicitation is absolute and not "narrowly tailored," Perry Education Assn., 460 U. S., at 45, to the Government's interest in avoiding disruption. Rather, the regulation is based on the Postal Service's generalized judgment that solicitation is more likely to be disruptive than are other types of speech. The postal regulation is a "time, place, or manner" rule only in the novel sense that it permits no manner of solicitation at any time or at any place in the forum.
When government seeks to prohibit categorically an entire class of expression, it bears, at the very least, a heavy burden of justification. See Schad v. Mount Ephraim, 452 U.S. 61, 67, 72-74 (1981) (the "exclusion of a broad category
Indeed, a great irony of this case is that the Postal Service has already promulgated legitimate time, place, and manner regulations that fully protect its interests in preventing disruption of postal operations. The postal regulations governing conduct on postal premises are codified in Part 232 of the Code of Federal Regulations (Conduct on Postal Property). Postal Service rules prohibit individuals from obstructing post office entrances, disturbing postal employees in the performance of their duties, or impeding the public in the transaction of postal business. Section 232.1(e), for example, provides that:
Similarly, § 232.1(k)(2) forbids "[t]he blocking of entrances, driveways, walks, loading platforms, or fire hydrants in or on [postal] property." See also § 232.1(c) (prohibition on "creating any hazard to persons or things"). Thus, although the postal regulation at issue here—§ 232.1(h)(1)—bans solicitation altogether, postal regulations restrict other forms of expression only when they actually disrupt postal operations. There is no reason why the rules prohibiting disruptive conduct cannot be used to address the governmental interest in this case, and hence there is no need for a categorical exclusion of solicitation from sidewalks on postal property.
Even if I did not believe that the sidewalk outside the Bowie Post Office was a public forum, I nevertheless could not agree with the plurality that the postal regulation at issue today is reasonable as applied to respondents. The Postal Service does not subject to the same categorical prohibition many other types of speech presenting the same risk of disruption as solicitation, such as soapbox oratory, pamphleteering, distributing literature for free, or even flag burning.
This inconsistent treatment renders the prohibition on solicitation unreasonable. The Postal Service undeniably has a legitimate interest in avoiding disruption of its postal facilities and ensuring that its buildings remain accessible to the public. But the Government interest in preventing disruption of post office business or harassment of postal patrons is addressed by the direct prohibitions on such conduct in existing postal rules, see supra, at 758-759, and the Service has not explained satisfactorily why these provisions are inadequate to deal with any disruption caused by solicitation.
The plurality suggests that the irksome nature of solicitation supports the reasonableness of the postal regulation. Even were the Postal Service's desire to prevent the annoyance of customers a legitimate basis for regulation,
The Government contends that any attempt to regulate solicitation on a case-by-case basis according to the general "disruption" regulation would be "unadministrable" because the Service "lacks the resources to enforce such regulation in the tens of thousands of post offices throughout the nation." 43 Fed. Reg. 38824 (1978). But the Government's interest in bright-line rules is hardly creditable, given that the Postal Service has chosen to adopt categorical restrictions on speech only with respect to solicitation. If such application of the general disturbance and obstruction rules contained in §§ 232.1(e) and 232.1(k)(2) is "administrable" with respect to other types of speech, I fail to understand how a case-by-case inquiry suddenly becomes impracticable in the context of solicitation.
Some postal patrons may thank the Court for sparing them the inconvenience of having to encounter solicitors with whose views they do not agree. And postal officials can rest assured in the knowledge that they can silence an entire category of expression without having to apply the existing postal regulations governing disruptive conduct or having to craft more narrow time, place, or manner rules. Perhaps only three groups of people will be saddened by today's decision. The first includes solicitors, who, in a farce of the public forum doctrine, will henceforth be permitted at postal locations to solicit the public only from such inhospitable locations as the busy four-lane highway that runs in front of the Bowie Post Office. The next to be disappointed will be those members of the public who would prefer not to be deprived of the views of solicitors at postal locations. The last group, unfortunately, includes all of us who are conscious of the importance of the First Amendment.
I respectfully dissent.
"If `the mere presence of a parking area between the street and a sidewalk limits our scrutiny of speech-related regulations to the standard for nonpublic fora, we issue an open invitation for government architects and landscapers to surround public buildings with modern-day moats.' The First Amendment is not consigned to the mercies of architectural chicanery, nor may a federal agency, simply by designating a sidewalk its own, spare itself the inconvenience of political protest and speech." 866 F. 2d, at 703 (citation omitted).
Furthermore, I would be wary of placing so much weight on the blurry concept of government qua "proprietor." See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 539-547 (1985); Owen v. City of Independence, 445 U.S. 622, 644-647 (1980). Certainly, the mere fact that postal operations are somehow implicated here cannot give the Government greater license to silence citizens in a public fornm. Cf. Rutan v. Republican Party of Illinois, ante, at 70-71, n. 4. The fact that the government is acting as an employer or as a proprietor does not exempt it from the distinct requirements of the Equal Protection Clause, see, e. g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-724 (1982); Sugarman v. Dougall, 413 U.S. 634, 641, 648-649 (1973); Turner v. City of Memphis, 369 U.S. 350, 353 (1962) (per curiam), or the Due Process Clause, Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 538-545 (1985); Perry v. Sindermann, 408 U.S. 593, 599-603 (1972), or the Commerce Clause, see South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 87 (1984), or the Privileges and Immunities Clause of Article IV. See United Building & Construction Trades Council of Camden County v. Mayor and Council of Camden, 465 U.S. 208, 214-218 (1984).
The plurality's reliance on Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (plurality opinion), is also misplaced. That a city may protect a captive audience in the small, enclosed space of a municipal bus says little about the type of regulations that the Government may adopt in the context of an outdoor public sidewalk. Justice Douglas, who provided the fifth vote in Lehman in his opinion concurring in the judgment, saw a clear distinction between the two situations. "One who hears disquieting or unpleasant programs in public places, such as restaurants, can get up and leave. But the man on the streetcar has no choice but to sit and listen, or perhaps to sit and to try not to listen." Public Utilities Comm'n of District of Columbia v. Pollak, 343 U.S. 451, 469 (1952) (Douglas, J., dissenting). Although the Government, within certain limits, may protect captive listeners against unwelcome intrusions, in public locations "we expect individuals simply to avoid speech they do not want to hear." Frisby v. Schultz, 487 U.S. 474, 484 (1988); cf. Erznoznik v. City of Jacksonville, 422 U.S. 205, 210-211 (1975); Cohen v. California, 403 U.S. 15, 21-22 (1971).
"Since the act of soliciting alms or contributions usually has as its objective an immediate act of charity, it has the potentiality for evoking highly personal and subjective reactions. Reflection usually is not encouraged, and the person solicited often must make a hasty decision whether to share his resources with an unfamiliar organization while under the eager gaze of the solicitor. Such confrontations, if occurring in the confines of a small post office lobby, at a post office writing desk or service window, or in a queue at a service window—places from which the individual cannot escape if he or she wishes to transact postal business—would be likely to produce hostile reactions and to cause people to avoid post offices." 43 Fed. Reg. 38824 (1978) (emphasis added).
The concern expressed was limited to solicitation inside postal lobbies. See ibid. ("The use of lobby space for such activity has been highly unsatisfactory") (emphasis added); see also United States v. Bjerke, 796 F.2d 643, 650 (CA3 1986). The fact that "most post office lobbies ... are too small to accommodate nonpostal public activities without disturbing postal employees in the performance of their duties and impeding the public in transacting postal business," 42 Fed. Reg. 63911 (1977); see also 43 Fed. Reg. 38824 (1978), says nothing about the sidewalks outside. The confined space of a lobby may well warrant measures that are not permissible elsewhere.
I do not think it appropriate to imagine for ourselves the possible ways in which solicitation on outside sidewalks might be disruptive. The Postal Service, the agency with "long experience" in this regard, ante, at 735, has been silent on the matter, except insofar as the Government has attempted to present post hoc rationalizations for the regulation long after its promulgation. See ibid. (citing Tr. of Oral Arg. 9). By analogy, were this a straightforward administrative law case, the failure of the Postal Service to document any danger of disruption from solicitation on outside sidewalks would be the end of the matter. See Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 653-654 (1990); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971); SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).
"The Postal Service has no intention to discontinue . . . that valuable service [of providing a place for the display of public notices and announcements] to local communities. The adopted regulation contains, as did the proposed rule, language insuring that the authority of postmasters to allow the placement in post offices of bulletin boards for the display of public notices and announcements, will continue as before. Thus, both [§ 232.1(h) (1)(ii) and § 232.1(o)(1)] contain language excepting from their coverage, `posting notices on bulletin boards as authorized in § 243.2(a) of this chapter.'
"The reference[d] section authorizes both public and employee bulletin boards. Postmasters are not required to provide bulletin board space for nongovernmental public announcements; but they are encouraged by postal policy to provide such space for the display of notices of public assemblies and judicial sales, official election notices issued by State or local government, and similar announcements so long as there is sufficient space for the effective display of scheduled postal materials and other Federal Government notices." 43 Fed. Reg. 38824-38825 (1978).