Initiative & Referendum Institute v. United States Postal Service

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2011 Decided July 13, 2012
No. 10-5337
INITIATIVE AND REFERENDUM INSTITUTE, ET AL.,
APPELLANTS
v.
UNITED STATES POSTAL SERVICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:00-cv-01246)
David F. Klein argued the cause for appellants. With him
on the briefs were Mark S. Davies, Matthew G. Jeweler, and
Arthur B. Spitzer.
Alice Neff Lucan and René P. Milam were on the brief for
amici curiae Newspaper Association of America, et al. in
support of appellants.
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
2
Before: HENDERSON, BROWN, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Concurring opinion filed by Circuit Judge BROWN.
GRIFFITH, Circuit Judge: This appeal is the latest step in a
long-running controversy over the use of post office
sidewalks to gather signatures on petitions. Originally a
dispute over a ban on soliciting signatures on all post office
property, the issues in the case have changed in response to a
decision of ours and subsequent revisions to Postal Service
regulations. Before us now is a facial challenge to a ban on
collecting signatures on post office sidewalks that do not run
along public streets. We agree with the district court that the
ban does not violate the First Amendment.
I
In 1998, the Postal Service banned “soliciting signatures
on petitions” on “all real property under the charge and
control of the Postal Service.” 39 C.F.R. § 232.1(a), (h)(1)
(2002). Violations are punishable by a criminal fine and
imprisonment. Id. § 232.1(p)(2).
The appellants use sidewalks on postal property to
circulate petitions aimed at placing initiatives and referenda
on state and local election ballots. In 2000, they brought a
facial challenge to the 1998 ban, arguing it violated the First
Amendment. Following discovery, both parties moved for
summary judgment. At a hearing on those dueling motions,
the Postal Service announced that the ban would not extend to
sidewalks that form the perimeter of post office property and
3
are indistinguishable from adjacent public sidewalks, 1 and
that the regulation would be enforced only against the
collecting of signatures, not the mere asking for them. See
Mots. Hr’g Tr. 29, 32-34, Sept. 24, 2002. The Postal Service
also said it would “issue a bulletin to its postmasters directing
them to adhere to this changed position.” Initiative &
Referendum Inst. v. U.S. Postal Serv., No. 00-1246, Order at 1
(D.D.C. Sept. 26, 2002).
The district court granted summary judgment for the
Postal Service, holding that the regulation, as narrowed by the
newly announced enforcement policy, was a reasonable time,
place, or manner restriction that would pass constitutional
muster even on sidewalks that were public forums. Initiative
& Referendum Inst. v. U.S. Postal Serv., 297 F. Supp. 2d 143,
154 (D.D.C. 2003). Reaching that conclusion, the district
court did not need to decide if they were.
We reversed the district court, holding that the ban would
be an impermissible restriction on expressive activity if postal
sidewalks were public forums because it was not narrowly
tailored to target disruptive activity and did not allow for
petitioning anywhere on postal property. Initiative &
Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1306-07
(D.C. Cir. 2005). We remanded the case for the district court
to determine whether the ban reached “a substantial number”
1
We refer to these as Grace sidewalks. In United States v.
Grace, 461 U.S. 171 (1983), the Supreme Court held that the
“sidewalks forming the perimeter of the Supreme Court grounds”
are traditional public forums, places where expressive activity is
lightly regulated, because they are “indistinguishable from any
other sidewalks in Washington, D.C.” Id. at 179-80.
4
of public forums. 2 Id. at 1313. To guide the district court, we
noted that interior postal sidewalks “may be hard to
categorize” but that Grace sidewalks are surely public forums
where the regulation may not be enforced. Id. at 1313-14.
Contrary to the argument of the Postal Service that its new
enforcement policy corrected the regulation’s defect as to
Grace sidewalks, we held that placing them beyond its reach
was not a plausible construction of a regulation whose express
terms still applied to all postal property. Id. at 1317-18. We
also identified a different problem with the regulation: Even
in nonpublic forums restrictions must be reasonable, and a
ban on merely asking for signatures would not be. Id. at 1314-
16. The Postal Service’s new enforcement policy, however,
remedied that infirmity by plausibly construing the ban to bar
only the actual collection of signatures. Id. at 1317.
While the matter was before the district court on remand,
the Postal Service amended its regulations to account for our
discussion of the new enforcement policy. The 2010
regulations prohibit “collecting” signatures, but not
“soliciting” them, on all postal property other than Grace
sidewalks. 39 C.F.R. § 232.1(a), (h)(1) (2010) (prohibiting
“collecting signatures on petitions” on all postal property
except “sidewalks along the street frontage of postal
property . . . that are not physically distinguishable from
adjacent municipal or other public sidewalks”).
Which brings us to the present controversy: The
appellants argue that § 232.1(h)(1) is still unconstitutional on
2
We explained that the appellants could sustain their facial
challenge to the regulation by showing that it restricts “a substantial
amount of protected free speech, judged in relation to [its] plainly
legitimate sweep.” Initiative & Referendum Inst., 417 F.3d at 1312
(quoting Virginia v. Hicks, 539 U.S. 113, 118-19 (2003) (citation
and internal quotation marks omitted)).
5
its face because the sidewalks to which it applies are public
forums. In response to the district court’s request for a more
complete factual record, the parties sent a questionnaire to
selected postmasters asking about the nature and frequency of
expressive activity on various types of postal sidewalks. The
appellants argued that the survey results showed that many
interior sidewalks at post offices are public forums and moved
for summary judgment on that ground. And even if they were
not, the appellants claim the regulation still violates the First
Amendment because it is unreasonable. The appellants also
asked the district court to enjoin enforcement of the regulation
on Grace sidewalks. The Postal Service countered with its
own motion for summary judgment, arguing that the regulated
sidewalks are not public forums and the regulation is
reasonable. The district court sided with the Postal Service
and also held that the express exemption of Grace sidewalks
from the regulation mooted the request for injunctive relief.
Initiative & Referendum Inst. v. U.S. Postal Serv., 741 F.
Supp. 2d 27, 35, 41 (D.D.C. 2010). This appeal followed. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291.
II
The first question we must decide is whether interior
postal sidewalks are public forums. It is hard to imagine many
activities more central to the purpose of the First Amendment
than collecting signatures on a petition with the goal of
placing an issue before the electorate. Yet even such a
worthwhile endeavor is not altogether free of government
regulation when it takes place on government property
dedicated to other types of public business.
We analyze restrictions on expressive activity on
government property for compliance with the First
Amendment under the public forum doctrine. This approach
6
divides government property into three categories, and the
category determines what types of restrictions will be
permissible. The “traditional public forum” category consists
of property that has “by long tradition or by government
fiat . . . been devoted to assembly and debate.” Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45
(1983). Quintessential examples are streets and parks, 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.” Id. (quoting Hague v. CIO, 307
U.S. 496, 515 (1939)) (internal quotation marks omitted). In
such a forum we subject content-based restrictions on speech
to strict scrutiny, but use the less demanding time, place, or
manner test to assess content-neutral restrictions. Id. A
“designated public forum” is property that “the State has
opened for use by the public as a place for expressive
activity.” Id. Expressive activity there may be restricted to
particular groups or subjects. Id. at 46 n.7. A “nonpublic
forum” is “not by tradition or designation a forum for public
communication.” Id. at 46. In these places the government
may “reserve the forum for its intended purposes,
communicative or otherwise, as long as the regulation on
speech is reasonable and not an effort to suppress expression
merely because public officials oppose the speaker’s view.”
Id.
In United States v. Kokinda, 497 U.S. 720 (1990), the
Supreme Court addressed but did not resolve the question
before us: whether interior sidewalks at post offices are public
forums. At issue was a Postal Service regulation that
prohibited “[s]oliciting alms and contributions” on a sidewalk
that led from the parking lot to the front door of the post
office building. Id. at 722-23 (plurality opinion). Writing for a
plurality, Justice O’Connor explained that the forum analysis
7
turns on more than whether the government property is a
sidewalk: “the location and purpose of a publicly owned
sidewalk” are key. Id. at 727-29. The plurality concluded that
this sidewalk was not a public forum because “it [led] only
from the parking area to the front door of the post office” and
“was constructed solely to provide for the passage of
individuals engaged in postal business.” Id. at 727. Unlike
other sidewalks, it was not a “public passageway” meant “to
facilitate the daily commerce and life of the neighborhood or
city.” Id. at 727-28. Justice Kennedy concurred in the
judgment upholding the regulation but would not join the
plurality’s conclusion that the sidewalk was not a public
forum. Noting there was “a powerful argument” that the
sidewalk was “more than a nonpublic forum,” he nevertheless
found no need to reach that issue because the regulation was
in his view a valid time, place, or manner restriction. Id. at
737-38 (Kennedy, J., concurring in the judgment).
Five courts of appeals have addressed the status of
interior postal sidewalks under the public forum doctrine and
all have agreed with the plurality that they are not public
forums. See Del Gallo v. Parent, 557 F.3d 58 (1st Cir. 2009);
Paff v. Kaltenbach, 204 F.3d 425 (3d Cir. 2000); Jacobsen v.
U.S. Postal Serv., 993 F.2d 649 (9th Cir. 1992); Longo v. U.S.
Postal Serv., 983 F.2d 9 (2d Cir. 1992); United States v.
Belsky, 799 F.2d 1485 (11th Cir. 1986). We join their ranks.
No court of appeals has held otherwise, except the Fourth
Circuit which was reversed by the Supreme Court in Kokinda.
United States v. Kokinda, 866 F.2d 699 (4th Cir. 1989), rev’d,
497 U.S. 720.
Like the Kokinda plurality, we recognize that “[t]he
dispositive question is not what the forum is called, but what
purpose it serves, either by tradition or specific designation.”
Boardley v. U.S. Dep’t of Interior, 615 F.3d 508, 515 (D.C.
8
Cir. 2010). We agree with Justice O’Connor that it is not
enough to know that the regulated property is a sidewalk.
True, we start “at a very high level of generality” where there
is “a working presumption that sidewalks, streets and parks
are normally to be considered public forums.” Oberwetter v.
Hilliard, 639 F.3d 545, 552 (D.C. Cir. 2011) (quoting
Henderson v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir. 1992))
(internal quotation marks omitted). But then we must
“examine the history and characteristics of the particular
property at issue, mindful ‘that when government has
dedicated property to a use inconsistent with conventional
public assembly and debate . . . then the inconsistency
precludes classification as a public forum.’” Id. (quoting
Henderson, 964 F.2d at 1182). In this case, the location,
purpose, and history of interior postal sidewalks combine to
show that they are not public forums.
Their location distinguishes them from “ordinary
sidewalks used for the full gamut of urban walking.”
Henderson, 964 F.2d at 1182; see also Grace, 461 U.S. at
179. Most lead only to the front door of the post office
building, see Kokinda, 497 U.S. at 727 (plurality opinion),
and a person stepping onto one would generally be aware that
he was not on an ordinary sidewalk that runs along a public
street, see Del Gallo, 557 F.3d at 71. That physical separation
from ordinary sidewalks suggests they are subject to greater
regulation. See Int’l Soc’y for Krishna Consciousness, Inc. v.
Lee (ISKCON), 505 U.S. 672, 680 (1992) (explaining that
“separation from acknowledged public areas may serve to
indicate that the separated property is a special enclave,
subject to greater restriction”).
Interior postal sidewalks also have a different purpose
than ordinary sidewalks, which are generally open for “the
free exchange of ideas.” See Cornelius v. NAACP Legal Def.
9
& Educ. Fund, Inc., 473 U.S. 788, 800 (1985). Like streets,
ordinary sidewalks are “not only a necessary conduit in the
daily affairs of a locality’s citizens, but also a place where
people may enjoy the open air or the company of friends and
neighbors in a relaxed environment.” Heffron v. Int’l Soc’y
for Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981).
By contrast, interior postal sidewalks are not meant to serve
as forums for free expression. They are neither public
thoroughfares nor gathering places, see Kokinda, 497 U.S. at
727 (plurality opinion), but are typically used only by
customers and employees of the post office and are built
solely to provide efficient access to the post office, see id. at
728; Hintenach Decl. in Supp. of Def.’s Mot. for Summ. J.
¶ 12.
There is no venerable tradition of using these sidewalks
for expressive activities. It is no doubt true, as the appellants
explain, that in the early days of the Republic post offices
were “a favorite gathering place” among townsmen who
congregated to discuss the news of the day and gossip.
Appellants’ Br. 31-36 (quoting RICHARD R. JOHN, SPREADING
THE NEWS: THE AMERICAN POSTAL SYSTEM FROM FRANKLIN
TO MORSE 161 (1995)); see also John Dep. 36:20-37:10, Jan.
4, 2002. But post offices then were not quite the same as post
offices now. Historically, a post office consisted of a desk or
counter in a store, tavern, or coffeehouse. See John Dep. 42:6-
43:6; JAMES H. BRUNS, GREAT AMERICAN POST OFFICES 3
(1998); JOHN, supra, at 113. “[P]ost offices were rarely
located in a freestanding building,” and “[a]lmost none were
owned by the government outright.” JOHN, supra, at 113. The
history the appellants cite tells us little about interior postal
sidewalks, which are a comparatively recent development. Cf.
ISKCON, 505 U.S. at 680-81 (explaining that the lateness
with which the modern air terminal made its appearance
10
precludes a finding that it has been used for expressive
activity “time out of mind”).
The appellants argue that interior postal sidewalks are
public forums because they are widely used for expressive
activity. They contend that the results of the postmaster
survey show that much public discourse takes place on postal
sidewalks and there is no significant difference between what
takes place on Grace sidewalks and what takes place on
interior postal sidewalks. Appellants’ Br. 36-40; see also
Kadane Decl. 4-5, Mar. 28, 2008. In fact, the survey results
show that only about 7% of the postmasters who responded
had ever observed people using Grace or interior sidewalks
for expressive activity. Kadane Decl. Ex. 2 (358 postmasters
said that exterior spaces have been used for expressive
activities and 4,736 said they have not). Even if all the
observed activity occurred on interior sidewalks, we are hard
pressed to agree with the appellants that it is a substantial
amount. These results do not show that a substantial number
of these sidewalks have been used for political activity and
expression with “sufficient historical regularity” to make
them traditional public forums. Initiative & Referendum Inst.,
741 F. Supp. 2d at 37; see also Del Gallo, 557 F.3d at 71(finding that “the Pittsfield Post Office sidewalk has not
consistently, historically ‘been used for public assembly and
debate,’ nor was it intended to be used as such” (citation
omitted)). Further, “comparing the frequency of expressive
activity within the recent past on the two types of sidewalks
sheds little, if any, light on the forum status of [interior]
sidewalks.” Initiative & Referendum Inst., 741 F. Supp. 2d at
38. The relevant inquiry is whether these sidewalks have
historically been used for public discourse. Id. And Grace
sidewalks are public forums because they are
indistinguishable from ordinary sidewalks, not because of the
11
quantum of expression that happens on them. Grace, 461 U.S.
at 179.
Nor does the survey show that interior postal sidewalks
are designated public forums. That the Postal Service has
allowed certain expressive activities on them does not
transform them into designated public forums because “[t]he
government does not create a public forum by . . . permitting
limited discourse, but only by intentionally opening a
nontraditional forum for public discourse.” Kokinda, 497 U.S.
at 730 (plurality opinion) (quoting Cornelius, 473 U.S. at 802)
(internal quotation marks and emphasis omitted). There is no
evidence in this case that the Postal Service intended to make
sidewalks used primarily by customers and employees to get
into the post office “generally available” for expressive
activity. See Ark. Educ. Television Comm’n v. Forbes, 523
U.S. 666, 677 (1998). Because interior postal sidewalks are
neither traditional nor designated public forums, we review
the regulation’s application to them for its reasonableness.
Kokinda, 497 U.S. at 730 (plurality opinion).
III
The appellants argue that even if they are nonpublic
forums, banning the collection of signatures on interior postal
sidewalks is still unconstitutional because it is unreasonable.
Perry, 460 U.S. at 46 (holding that restrictions on speech in
nonpublic forums must be reasonable). A regulation is
reasonable if it is consistent with the government’s legitimate
interest in maintaining the property for its dedicated use. Id. at
50-51. And the restriction “need only be reasonable; it need
not be the most reasonable or the only reasonable limitation.”
Cornelius, 473 U.S. at 808. According to the Postal Service,
its customers and employees have complained that collecting
signatures on postal sidewalks blocks the flow of traffic into
12
and out of the post office building. The Postal Service also
seeks to avoid the appearance of endorsing the group
collecting signatures.
The appellants respond that there is no reasonable fit
between those interests and the regulation. They think the ban
unnecessary because “[d]isorderly conduct” and “imped[ing]
ingress . . . or egress” are already proscribed. See 39 C.F.R.
§ 232.1(e). But certainly the Postal Service is free to adopt
multiple means to ensure that customers visiting the post
office can transact their business unimpeded. See Initiative &
Referendum Inst., 417 F.3d at 1309 (“Of course, the
availability of other means of accomplishing a governmental
objective does not foreclose the government’s ability to
pursue its chosen course.”). In a nonpublic forum the
government need not adopt the most narrowly tailored means
available. Cornelius, 473 U.S. at 809.
The appellants also argue that it is unreasonable to
distinguish between soliciting signatures and collecting them
because both are equally disruptive. But we previously made
that very distinction, looking askance at a ban on pure
solicitation, but concluding that a ban on collection would be
permissible. See Initiative & Referendum Inst., 417 F.3d at
1314-17. The Postal Service is simply following our lead.
Tracking the analysis of the plurality and Justice Kennedy in
Kokinda, we observed that different consequences are likely
to follow from merely asking postal customers for their
signatures and actually collecting them. Id. at 1317.
Collecting contributions involves the type of immediate
response the Kokinda plurality thought could be reasonably
banned because it would cause postal customers to stop,
transact the business requested, and thus disrupt the flow of
traffic at the post office. Kokinda, 497 U.S. at 733-34(plurality opinion). By contrast, the plurality thought that
13
distributing a leaflet that merely asked postal patrons for their
help posed no such risk and could not reasonably be banned.
Id. at 734. Justice Kennedy made a similar point when he
concluded it would be reasonable to ban a request that
naturally leads to an immediate response that would disrupt
customer traffic at the post office. Id. at 738-39 (Kennedy, J.,
concurring in the judgment). That distinction, we have already
determined, is meaningful, and while a ban on pure
solicitation is unreasonable, a ban on collection is not.
Initiative & Referendum Inst., 417 F.3d at 1317. That
discussion, which the Postal Service followed in crafting the
regulation before us, controls our disposition.
IV
We said before that § 232.1(h)(1) could not be enforced
on Grace sidewalks. They are public forums, and the ban on
collecting signatures there is not a reasonable time, place, or
manner restriction. Id. at 1313-14 (citing Grace, 461 U.S. at
180). Although it seemed likely that many post offices had
Grace sidewalks, making this restraint on protected speech
“substantial,” we remanded the case for the district court to
make that determination. Id. at 1314. We also noted that this
part of the appellants’ challenge “may be pretermitted if the
Postal Service amends the regulation to exclude [Grace]
sidewalks from the prohibition against solicitation.” Id. at
1318. Based on our decision, the appellants sought to enjoin
enforcement of § 232.1(h)(1) on Grace sidewalks, but the
Postal Service beat them to the punch by amending the
regulation to exempt Grace sidewalks. The district court
ruled, therefore, that the appellants’ request was moot.
Initiative & Referendum Inst., 741 F. Supp. 2d at 34-35. We
agree.
14
“Federal courts lack jurisdiction to decide moot cases
because their constitutional authority extends only to actual
cases or controversies.” Iron Arrow Honor Soc’y v. Heckler,
464 U.S. 67, 70 (1983). “Even where litigation poses a live
controversy when filed,” a federal court must “refrain from
deciding it if events have so transpired that the decision will
neither presently affect the parties’ rights nor have a more-
than-speculative chance of affecting them in the future.” Am.
Bar Ass’n v. FTC, 636 F.3d 641, 645 (D.C. Cir. 2011). The
intervening event here is of the Postal Service’s own doing.
“[G]enerally voluntary cessation of challenged activity does
not moot a case,” unless “the party urging mootness
demonstrates that (1) ‘there is no reasonable expectation that
the alleged violation will recur’ and (2) ‘interim relief or
events have completely or irrevocably eradicated the effects
of the alleged violation.’” Nat’l Black Police Ass’n v. District
of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (quoting
Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).
A challenge to a superseded law is rendered moot unless
“there [is] evidence indicating that the challenged law likely
will be reenacted.” Id. The case primarily relied upon by the
appellants had just such evidence. See City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.11 (1982) (noting
that the city had announced its intent to reenact the challenged
ordinance). There is no evidence in this case to suggest the
Postal Service has anything like that in mind. “[T]he mere
power to reenact a challenged law is not a sufficient basis on
which a court can conclude that a reasonable expectation of
recurrence exists.” Nat’l Black Police Ass’n, 108 F.3d at 349.
It is implausible that the Postal Service would have gone
through the cumbersome process of amending its regulation to
exempt Grace sidewalks only to re-amend the regulation after
this case is resolved to once again cover them, especially
15
when we have already said that it would be unconstitutional to
do so.
Because the challenged regulation no longer applies to
Grace sidewalks, the amendment “completely and irrevocably
eradicated the effects of the alleged violation.” Id. at 350. At
this point, “declaratory and injunctive relief would no longer
be appropriate.” Id.V
The judgment of the district court is
Affirmed.
BROWN, Circuit Judge, concurring: I join the Court’s
public forum analysis in full, and given our holding in
Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d
1299, 1314–17 (D.C. Cir. 2005), I join my colleagues in
acknowledging the Postal Service’s scheme of banning
signature-collection while permitting signature-solicitation is
one we previously approved. After all, as the Court explains,
the Postal Service is merely “following our lead” from that
case, Majority Op. at 12, since we suggested there that
banning only same-place signature-collecting would “cure the
problem” posed by an outright ban on solicitation of
signatures. 417 F.3d at 1317.
But this half-a-loaf solution seems more persnickety than
practical. The harms about which the Postal Service is
concerned—the impeding of traffic and the appearance of
Postal Service endorsement, Majority Op. at 11–12—and,
indeed, all of the harms I can imagine,1 accrue in the initial,
permitted phase of a signature-gathering encounter: the
solicitation.
As I imagine an encounter under the current set of
regulations, a postal patron will approach the door to a post
office. The patron will then be approached by a signature-
gatherer and asked to sign a petition, at which point, one of
two things will happen: the patron may ignore the signature-
1
For example, Frederick Hintenach, a Postal Service official
involved in writing the regulation, testified that “what drove the
intrusiveness was the fact that [postal patrons] were being
approached as they were trying to get in and out of the building.”
Hintenach Dep. at 85 (emphasis added). This remains permitted.
Hintenach went on to say, “I don’t think our customers or our
employees should be subjected to the opinions of someone else if
they don’t choose to do so. And referendum and signature
collection forces that interaction.” Id. at 94. The permitted
solicitation “forces” that same interaction.
2
gatherer, giving him the brush-off and walking right into the
post office, or seek to sign the petition. All of these
interactions are permitted. Once the patron expresses an
interest in signing the petition, however, the signature-
gatherer will have to explain that postal regulations prohibit
collecting signatures in this location, and invite the patron to
move to the nearest Grace sidewalk to affix his signature.2
From the perspective of the uninterested patron, the
disruption is the same, collection or no collection. But from
the perspective of the interested patron, the disruption is only
increased by the awkward two-step required by the
regulations—that patron must further deviate from her postal
business in order to complete her interaction with a signature-
gatherer. Whatever doorway impedance is alleviated by
moving signature-collection offsite is surely netted out by the
necessarily lengthier explanations of the convoluted rules.
Nor does this arrangement dissipate concern about the
Postal Service’s apparent endorsement of the message of
signature-gatherers. Postal patrons are unlikely to make any
useful distinction on this score between soliciting signatures
and collecting them.
When the Supreme Court has evaluated similar speech
restrictions, it has only encountered bans on solicitation, not
bans on collection where solicitation remains permitted.
Compare Int’l Soc’y for Krishna Consciousness, Inc. v. Lee,
2
Of the 24 states that allow citizen initiatives, 18 require petition
circulators to personally witness each signature and to sign an
affidavit to that effect. Nat’l Conf. of State Legis., Laws Governing
Petition Circulators, http://www.ncsl.org/legislatures-
elections/elections/laws-governing-petition-circulators.aspx (last
accessed June 25, 2012). Asking a supporter to mail in a signature
at a later date is thus out of the question for at least these efforts.
3
505 U.S. 672, 676, 683–85 (1992) (upholding ban on in-
person solicitation of money); United States v. Kokinda, 497
U.S. 720, 724, 733 (1990) (“[T]he single issue before us [is
whether] the Government’s prohibition of solicitation on
postal sidewalks [is] unreasonable?”). Thus, while we can
only commend the Postal Service for so assiduously following
our directions, the Service may conclude, on further
reflection, that the present compromise causes more confusion
and disruption than it abates. In that case, the Service may
decide to do what is sensible and permit the entire signature-
gathering encounter—for that would surely not be
unreasonable.