Pocatello Education v. Heidman ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
POCATELLO EDUCATION 
ASSOCIATION; IDAHO EDUCATION
ASSOCIATION; PROFESSIONAL FIRE
FIGHTERS OF IDAHO, INC.; SERVICE
EMPLOYEES INTERNATIONAL UNION,
LOCAL 687; AFL-CIO,
Plaintiffs-Appellees,
v.
MARK HEIDEMAN, in his official No. 06-35004
capacity as Bannock County
Prosecuting Attorney,  D.C. No.
CV 03-0256 BLW
Defendant, OPINION
and
BEN YSURSA, in his official
capacity as Secretary of State for
the State of Idaho; LAWRENCE
WASDEN, in his official capacity as
Attorney General for the State of
Idaho,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
August 9, 2007—Seattle, Washington
Filed October 5, 2007
Before: William C. Canby, Jr., A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
13527
13528 POCATELLO EDUCATION ASS’N v. HEIDEMAN
Opinion by Judge Tashima
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13529
COUNSEL
Clay R. Smith, Idaho Deputy Attorney General, Boise, Idaho,
for the defendants-appellants.
13530 POCATELLO EDUCATION ASS’N v. HEIDEMAN
Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C.,
for the plaintiffs-appellees.
OPINION
TASHIMA, Circuit Judge:
Plaintiff labor organizations (“Plaintiffs”) sued officials of
the State of Idaho, claiming that the Voluntary Contributions
Act (“VCA”), Idaho Code §§ 44-2004(2) and -2601 to -2605,
violated Plaintiffs’ constitutional rights under the First
Amendment as well as other constitutional provisions. Before
the district court, the State officials conceded that all chal-
lenged provisions were unconstitutional, except Idaho Code
§ 44-2004(2), which prohibits any payroll deductions for “po-
litical activities.” The district court held the ban on payroll
deductions to be constitutional as applied to the state govern-
ment itself, but unconstitutional as applied to private and local
government employers. The State officials contend on appeal
that the payroll deduction ban may be constitutionally applied
to local government employers. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
We hold that Idaho Code § 44-2004(2), as applied to local
government employers, violates the First Amendment because
it is a content-based law for which the State officials assert no
compelling justification. Moreover, the State officials have
not demonstrated that the law should be reviewed under the
more relaxed standard applicable to speech restrictions in
nonpublic fora. In particular, they have not shown that the
State of Idaho may properly assert a proprietary interest in
controlling access to the payroll systems that constitute the
fora in this case. Caselaw suggests that the authority over
local governments the State possesses by operation of law is
not enough to associate the local workplaces or payroll deduc-
tion programs with the State of Idaho, and the State officials
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13531
have adduced no specific evidence that the State actually does
own, administer, or control the payroll deduction programs.
STANDARD OF REVIEW
We review de novo the district court’s decision on cross-
motions for summary judgment, Arakaki v. Hawaii, 314 F.3d
1091, 1094 (9th Cir. 2002), applying the same standard used
by the trial court under Federal Rule of Civil Procedure 56(c),
Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110,
1131 (9th Cir. 2003). We must decide whether the record,
when viewed in the light most favorable to the non-moving
party, shows that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Guebara v. Allstate Ins. Co.,
237 F.3d 987, 992 (9th Cir. 2001). Mixed questions of law
and fact and ultimate conclusions of law receive de novo
review. Hurley v. Irish-American Gay, Lesbian & Bisexual
Group of Boston, Inc., 515 U.S. 557, 567 (1995); Bose Corp.
v. Consumers Union of U.S., Inc., 466 U.S. 485, 501 (1984).
We may affirm the district court’s grant of summary judg-
ment on any ground supported by the record. Enlow v. Salem-
Keizer Yellow Cab Co., 371 F.3d 645, 649 (9th Cir. 2004).
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, the Idaho legislature enacted the VCA, a series of
amendments to Title 44 of the Idaho Code, including an
amendment to Chapter 20 (“Right to Work”). See 2003 Idaho
Sess. Laws Ch. 97, 340 (enacting H.B. 329 and S.B. 1176);
id. Ch. 340 (S.B. 1176). The Chapter 20 amendment states:
“Deductions for political activities as defined in chapter 26,
title 44, Idaho Code, shall not be deducted from the wages,
earnings or compensation of an employee.” Idaho Code § 44-
2004(2).1 “Political activities” are defined as “electoral activi-
1
The VCA also amended Idaho Code § 67-6605, allowing political
committees to “solicit or obtain contributions from individuals as provided
13532 POCATELLO EDUCATION ASS’N v. HEIDEMAN
ties, independent expenditures, or expenditures made to any
candidate, political party, political action committee or politi-
cal issues committee or in support of or against any ballot
measure.” Idaho Code § 44-2602(1)(e).
Plaintiffs filed suit challenging the constitutionality of the
VCA, naming as defendants Bannock County Prosecuting
Attorney Mark Heideman, Idaho Attorney General Lawrence
Wasden, and Secretary of State Ben Ysursa (collectively,
“Defendants”). Plaintiffs sought declaratory and injunctive
relief from enforcement of § 44-2004(2) as violative of their
rights to free speech and equal protection under the First and
Fourteenth Amendments.2
Defendants conceded that several provisions of the VCA
were unconstitutional because they restricted the ability of
labor organizations to solicit political contributions, namely,
Idaho Code §§ 44-2601 to -2605. On cross-motions for sum-
mary judgment with respect to the remaining substantive pro-
vision banning payroll deductions for political activities, the
district court held that the payroll deduction prohibition vio-
lated the First Amendment to the extent it applied to local
government employers and private employers. It also held,
however, that the payroll deduction ban could be applied con-
in chapter 26, title 44, Idaho Code, or as provided in section 44-2004,
Idaho Code.”
Finally, the VCA added the following subsection to Idaho Code § 44-
2004:
(3) Nothing in this chapter shall prohibit an employee from per-
sonally paying contributions for political activities as defined in
chapter 26, title 44, Idaho Code, to a labor organization unless
such payment is prohibited by law.
See 2003 Idaho Sess. Laws ch. 97 (enacting H.B. 329).
2
The district court denied Eleventh Amendment immunity to Wasden
and Ysursa and that denial was affirmed on appeal. Pocatello Educ. Ass’n
v. Heideman, 123 F. App’x 765 (9th Cir. 2005).
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13533
stitutionally to the State’s own payroll system, i.e., to employ-
ees of the State of Idaho. Accordingly, the court granted in
part and denied in part both motions. Pocatello Educ. Ass’n
v. Heideman, 2005 WL 3241745 (D. Idaho 2005). Ysursa and
Wasden (“Appellants”) now appeal the district court’s ruling
that § 44-2004(2) is unconstitutional with respect to local
government employers and school district employers.3
ANALYSIS
Idaho Code § 44-2004(2) burdens speech by diminishing
Plaintiffs’ ability to conduct any of the activities defined by
the Idaho Code as “political.” The term “political activities”
is broadly defined to include virtually all types of electioneer-
ing, including “electoral activities” as well as spending on
behalf of or against candidates, ballot measures, political
action or issue committees, or parties. See Idaho Code § 44-
2602(1)(e).
The First Amendment provides that “Congress shall make
3
School districts are but one category of local governmental entities in
Idaho. The Idaho Constitution specifically recognizes cities and counties.
Idaho Const. art. XII, § 1 (providing for incorporation of cities and towns),
Code § 50-201; Idaho Const. art. XVIII, §§ 1-12 (county organization);
see also Idaho Code § 50-201. In addition, the state legislature has created
“[a] wide variety of special districts,” including school districts. See
Michael C. Moore, The Idaho Constitution & Local Governments —
Selected Topics, 31 Idaho L. Rev. 417, 422 & n.29 (1995) (discussing the
creation by statute of local government units such as regional airport
authorities, cemetery maintenance districts, fire protection districts, ambu-
lance districts, regional solid waste disposal districts, recreation districts,
school districts, library districts, hospital districts, mosquito abatement
districts, highway districts, water and sewer districts, irrigation districts,
and auditorium districts). Although Appellants’ briefs and the district
court’s order sometimes refer to school districts as distinct from local gov-
ernment, the First Amendment analysis undertaken here applies to all local
governmental entities. Therefore, except where relevant under Idaho law,
we do not separate or separately discuss school district employers from
other local government employers.
13534 POCATELLO EDUCATION ASS’N v. HEIDEMAN
no law . . . abridging the freedom of speech, or of the press;
or the right of people peaceably to assemble, and to petition
the Government for a redress of grievances.” The Fourteenth
Amendment renders that prohibition applicable to the States.
See, e.g., Thornhill v. Alabama, 310 U.S. 88, 95 (1940)
(explaining that freedom of speech is one of the fundamental
personal rights and liberties secured against state abridgment
by the Fourteenth Amendment).
This restriction on voluntary political contributions burdens
political speech, which is protected by the First Amendment;
indeed, political speech is a “central concern” of First Amend-
ment jurisprudence. See Burson v. Freeman, 504 U.S. 191,
196 (1992) (plurality opinion); accord, Fed. Election Comm’n
v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2664 (2007); Aus-
tin v. Mich. Chamber of Commerce, 494 U.S. 652, 657
(1990); Ariz. Right to Life Political Action Comm. v. Bayless,
320 F.3d 1002, 1008 (9th Cir. 2003). “[T]here is practically
universal agreement that a major purpose of that Amendment
was to protect the free discussion of governmental affairs.”
Mills v. Alabama, 384 U.S. 214, 218 (1966).
The law does not prohibit Plaintiffs from participating in
political activities, but it hampers their ability to do so by
making the collection of funds for that purpose more difficult.
The district court found that unions face substantial difficul-
ties in collecting funds for political speech without using pay-
roll deductions because of their members’ concerns over
identity theft associated with other electronic transactions, as
well as the time-consuming nature of face-to-face solicitation.
The district court found that the payroll deduction ban would
decrease the revenues available to Plaintiffs to use for politi-
cal speech. Restricted funding will, therefore, diminish Plain-
tiffs’ ability to engage in political speech, and § 44-2004(2) is
properly viewed as a regulation of protected speech. Cf.
Meyer v. Grant, 486 U.S. 414, 420-23 (1988) (holding that a
Colorado law prohibiting the payment of circulators of initia-
tive petitions is properly viewed as a burden on political
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13535
speech because its effect was to limit the number of voices
who would convey a petition’s message, limit the size of the
audience who would receive the message, and make it less
likely the petition would gain enough signatures to earn place-
ment on the state ballot).
The law on its face prohibits payroll deductions only for
political activities. This is subject-matter discrimination,
which is a form of content discrimination. Consol. Edison Co.
v. Pub. Serv. Comm’n, 447 U.S. 530, 537-38 (1980); see also
Burson, 504 U.S. at 197 (holding a Tennessee law prohibiting
speech related to a political campaign near polling places to
be a content-based restriction); Bayless, 320 F.3d at 1009
(holding a state statute restricting only expenditures which
expressly advocate election or defeat of a candidate to be a
content-based restriction).
Ordinarily, because we are dealing with content-based
restriction of political speech, we would evaluate its validity
under strict scrutiny. Fed. Election Comm’n, 127 S. Ct. at
2664. Indeed, content-based regulations of speech are gener-
ally presumptively invalid, under the rationale “that content
discrimination ‘raises the specter that the Government may
effectively drive certain ideas or viewpoints from the market-
place.’ ” R.A.V. v. City of St. Paul, 505 U.S. 377, 387 (1992)
(quoting Simon & Schuster, Inc. v. Members of N.Y. State
Crime Victims Bd., 502 U.S. 105, 116 (1991)). To be constitu-
tional, § 44-2004(2) must be narrowly tailored to serve a com-
pelling interest. Fed. Election Comm’n, 127 S. Ct. at 2664. As
Appellants proffer no compelling interest in favor of the law,
both sides agree that it would easily fail strict scrutiny.4
Strict scrutiny, however, is not applied in all circumstances
4
The parties appear to agree that this is the proper outcome with respect
to the payroll deductions of private employers, as Appellants do not chal-
lenge on appeal the district court’s holding that § 44-2004(2) is unconsti-
tutional with respect to this group.
13536 POCATELLO EDUCATION ASS’N v. HEIDEMAN
involving content-based restrictions. See Davenport v. Wash.
Educ. Ass’n, 127 S. Ct. 2372, 2381 (2007). Appellants con-
tend that two excepted circumstances apply here, and it is to
that argument that we now turn.
I. Government-Subsidized Speech
[1] In general, government may refrain from paying for
speech with which it disagrees. See, e.g., Regan v. Taxation
With Representation, 461 U.S. 540, 544-46 (1983) (explain-
ing that Congress may make content-based distinctions when
it subsidizes speech, in that case by granting to qualifying
organizations the amount of income taxes they would other-
wise owe); Chamber of Commerce v. Lockyer, 463 F.3d 1076,
1080, 1096-97 (9th Cir. 2006) (en banc) (California law pro-
hibiting the use of state grant and program funds on activities
related to union organizing did not infringe affected employ-
ers’ First Amendment rights). The nonsubsidy doctrine is
premised on the rationale that the government is free to confer
no benefit at all and is therefore entitled to condition the
receipt of the benefit on speech or silence. See Regan, 461
U.S. at 549-50; but cf. Legal Aid Soc’y v. Legal Servs. Corp.,
145 F.3d 1017, 1024-29 (9th Cir. 1998) (discussing unconsti-
tutional restrictions upon which the government may not con-
dition receipt of a benefit).
[2] Applying this doctrine, the district court held that the
State of Idaho could properly forbid payroll deductions of its
own employees to be used for union activities, as the First
Amendment imposes no obligation to subsidize union and
employee speech by paying for the administration of the pay-
roll deductions. Pocatello Educ. Ass’n, 2005 WL 3241745, at
*2; cf. Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307,
319-20 (6th Cir. 1998); S.C. Educ. Ass’n v. Campbell, 883
F.2d 1251, 1257 (4th Cir. 1989). The parties appear to be in
agreement as to this point, and the holding is unchallenged on
appeal. As the district court noted, however, there is no sub-
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13537
sidy by the State of Idaho for the payroll deduction systems
of local governments.
II. Forum Analysis
In certain cases, regulation of speech on government prop-
erty is not subject to strict scrutiny. In particular, it is well
established “that, when the government permits speech on
government property that is a nonpublic forum, it can exclude
speakers on the basis of their subject matter, so long as the
distinctions drawn are viewpoint neutral and reasonable in
light of the purpose served by the forum.” Davenport, 127
S. Ct. at 2381; see also Ark. Educ. Television Comm’n v.
Forbes, 523 U.S. 666, 682-83 (1998) (approving exclusion of
independent political candidate from public television debate
because he had little popular support). Appellants invoke this
doctrine, arguing that the proper way to view the statute is to
look at the payroll deduction programs of local governments
as nonpublic fora belonging to the State.5 Appellants argue
that § 44-2004(2) is therefore valid because it is viewpoint
neutral, applying to all employers and to any type of political
contribution, and assert that the restriction “is plainly reason-
able given Idaho’s interest in its payroll system not assisting
or having the appearance of assisting with political matters.”
A.
[3] Government regulation of speech in public spaces has
historically been governed by the public forum doctrine. See
United States v. Kokinda, 497 U.S. 720, 725-27 (1990)
5
Appellants assert their First Amendment forum-analysis argument for
the first time on appeal. We usually consider such arguments to be waived.
See Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 n.4 (9th Cir. 2002);
United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978). It is within our
discretion, however, to consider pure questions of law raised for the first
time on appeal. See Janes, 279 F.3d at 888 n.4; Patrin, 575 F.2d at 712.
Because Appellants present their forum-analysis argument as a pure ques-
tion of law, we exercise our discretion to address it.
13538 POCATELLO EDUCATION ASS’N v. HEIDEMAN
(explaining development of doctrine); Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983)
(formally classifying public property into three groups). The
extent to which the government can control access depends on
the nature of the relevant forum. Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800 (1985). The
traditional public forum includes property characterized, “by
long tradition or by government fiat” as “devoted to assembly
and debate.” Perry Educ. Ass’n, 460 U.S. at 45 (noting that
streets and parks are the quintessential examples of public
fora). The government may exclude speakers from a tradi-
tional public forum “only when the exclusion is necessary to
serve a compelling state interest and the exclusion is narrowly
drawn to achieve that interest.” Cornelius, 473 U.S. at 800;
see also Hague v. Comm. for Indus. Org., 307 U.S. 496, 515-
16 (1939) (Opinion of Roberts, J.) (“The privilege . . . to use
the streets and parks for communication of views on national
questions may be regulated in the interest of all; . . . but it
must not, in the guise of regulation, be abridged or denied.”).
In comparison, “designated public fora” are created where
the government has opened public property for expressive
activity. Perry Educ. Ass’n, 460 U.S. at 45. If the government
has opened the property to a class of speakers, rather than
offering selective access to individual speakers, the property
is a designated public forum with respect to all speakers
within that class. Ark. Educ. Television Comm’n, 523 U.S. at
678; Flint v. Dennison, 488 F.3d 816, 831 (9th Cir. 2007);
Widmar v. Vincent, 454 U.S. 263, 267 (1981) (state university
created designated public forum for registered student groups
by implementing policy that expressly made its meeting facil-
ities “generally open” to such groups). The state may also
designate a public forum for discussion of certain subjects.
Perry Educ. Ass’n, 460 U.S. at 46 n.7, citing City of Madison
Joint Sch. Dist. v. Wis. Pub. Employment Relations Comm’n,
429 U.S. 167 (1976). In a designated public forum, content-
based prohibitions on speech, including the exclusion of par-
ticular speakers, “must be narrowly drawn to effectuate a
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13539
compelling state interest.” Perry Educ. Ass’n, 460 U.S. at 46;
see Ark. Educ. Television Comm’n, 523 U.S. at 678; Corne-
lius, 473 U.S. at 802.6 In other words, as long as the forum is
open, the state is bound by the same standards as apply to the
traditional public forum. Perry Educ. Ass’n, 460 U.S. at 46.
Finally, a nonpublic forum has been characterized as “[a]ny
public property that is not by tradition or designation a forum
for public communication.” Faith Ctr. Church Evangelistic
Ministries v. Glover, 480 F.3d 891, 907 (9th Cir. 2007). For
example, in International Society for Krishna Consciousness,
Inc. v. Lee, 505 U.S. 672 (1992) (“ISKCON”), the Court
declared airport terminals to be a nonpublic forum because,
although speech activity occurs in airport terminals, their tra-
dition and purpose is to facilitate passenger air travel and
serve as a commercial enterprise, not to promote expression.
Id. at 679, 682-83. The government may limit access to “a
nonpublic forum to activities compatible with the intended
purpose of the property.” Perry Educ. Ass’n, 460 U.S. at 49.7
6
On occasion, this circuit has referred to the “limited public forum” as
a subcategory of the designated public forum. See Flint, 488 F.3d at 830-
31; Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001). Other
decisions treat the terms interchangeably. See, e.g., Currier v. Potter, 379
F.3d 716, 728 n.8 (9th Cir. 2004) (citing, inter alia, Rosenberger v. Rector
& Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)).
7
Government property need not be any type of forum at all. For exam-
ple, the Supreme Court has held that, as a general rule, most public televi-
sion shows are not fora because broadcasters must retain considerable
programming discretion in order to fulfill their mandate of airing program-
ming that serves the public interest. Ark. Educ. Television Comm’n, 523
U.S. at 673-75. In those instances, the First Amendment does not guaran-
tee any right of access. See United States v. Am. Library Ass’n, Inc., 539
U.S. 194, 205 (2003) (noting that forum analysis is “incompatible” with
consideration of internet access in public libraries because library staff
must consider content in making decisions regarding the library collection,
including the library’s internet); Nat’l Endowment for the Arts v. Finley,
524 U.S. 569, 586 (1998) (declining to apply forum analysis because it
would conflict with the content-based nature of funding consideration).
13540 POCATELLO EDUCATION ASS’N v. HEIDEMAN
[4] A “forum” does not need to be a physical place. See
Rosenberger, 515 U.S. at 830 (endorsing use of forum analy-
sis in considering fora defined “more in a metaphysical than
in a spatial or geographic sense”). For example, in Cornelius,
the Supreme Court held that a charity drive within federal
workplaces constituted a forum. 473 U.S. at 801. The Court
reasoned that the relevant forum should be determined on the
basis of the type of access sought by the speaker to the rele-
vant property, and the NAACP did not claim any general right
of access to the federal workplace outside of the charity drive.
Id. at 801-02. Thus, the Court considered the relevant forum
to be the charity drive itself rather than the federal workplace.
Id.; see also Rosenberger, 515 U.S. at 830 (forum is the uni-
versity’s student fund responsible for monetary reimburse-
ments to student groups); Perry Educ. Ass’n, 460 U.S. at 46
(forum is the public school mail facilities and delivery sys-
tem); Flint, 488 F.3d at 831 (forum is a student government
election); Child Evangelism Fellowship v. Anderson Sch. Dist.
Five, 470 F.3d 1062, 1069 (4th Cir. 2006) (forum is the
school’s policy of waiving fees for the after-hours use of
school facilities).
[5] Following Cornelius, the relevant forum in this case
would be the payroll deduction programs of the local govern-
ments, as Plaintiffs seek access to this part of local govern-
ment workplaces. Appellants assert that the payroll deduction
programs are nonpublic fora. The government may place
content-based limits on speech in a nonpublic forum, Perry
Educ. Ass’n, 460 U.S. at 49, “so long as the distinctions
drawn are reasonable in light of the purpose served by the
forum and are viewpoint neutral.” Cornelius, 473 U.S. at 806.
Appellants assert that § 44-2004(2) meets this test.8
Nevertheless, Plaintiffs argue strenuously that forum analy-
8
In Cornelius, a restriction similar to that at issue here passed muster as
a reasonable content-based restriction of speech in the context of a non-
public forum. 473 U.S. at 811.
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13541
sis does not apply at all because neither the payroll deduction
programs nor the local workplaces are “property” of the State
of Idaho in any sense, and the State of Idaho therefore cannot
assert an interest in protecting the fora. To resolve this ques-
tion, we consider first the required relationship between the
government entity seeking to impose a free speech restriction
and the forum in which it is imposed. We then examine the
relationship between the State of Idaho and the workplaces of
its local governments.
B.
[6] In ISKCON, the Court explained the rationale for forum
analysis as follows: “Where the government is acting as a pro-
prietor, managing its internal operations, rather than acting as
lawmaker with the power to regulate or license, its action will
not be subjected to the heightened review to which its actions
as a lawmaker may be subject.” 505 U.S. at 678. Thus, in
these situations, the role of the government has changed from
regulator to something akin to that of a private landowner,
with at least some of the associated exclusionary rights.9 See
Greer v. Spock, 424 U.S. 828, 836 (1976) (“The State, no less
than a private owner of property, has power to preserve the
property under its control for the use to which it is lawfully
dedicated.”); Davis v. Massachusetts, 167 U.S. 43, 47 (1897)
(analogizing the government’s control over public property to
that of “the owner of a private house”).
Forum analysis developed in battles over access to physical
spaces, such as streets, buses, and airports, where property
law provides a ready guide to the scope of the government’s
rights. Supreme Court precedent accordingly suggests that a
9
Of course, if the government opens property it owns to the general
public for expression, its regulations of content are subject to strict scru-
tiny. Cornelius, 473 U.S. at 800. Thus, proprietorship alone is not enough
to exclude selectively; the proprietor must confine its property to narrow
uses.
13542 POCATELLO EDUCATION ASS’N v. HEIDEMAN
forum may be subject to government control where the gov-
ernment entity maintains a proprietary relationship over the
relevant property. For example, in ISKCON, the Court noted
specifically that the Port Authority of New York and New Jer-
sey, the entity which had adopted the speech-restricting regu-
lation, owned and operated the airport terminals which
constituted the property subject to the challenged regulation.
505 U.S. at 675; see also Ark. Educ. Television Comm’n, 523
U.S. at 669, 678 (state agency owned and operated the televi-
sion station which held the political debate determined to be
a nonpublic forum); Kokinda, 497 U.S. at 723, 725 (federal
government acted in a proprietary capacity in restricting
access to postal service sidewalk owned by postal service);
Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974)
(content-based limits placed by city on access to municipal
transit system’s advertising space held to be “reasonable leg-
islative objectives advanced by the city in a proprietary capaci-
ty”).10
By contrast, the mere possession of legal authority to regu-
late an entity, without more, represents an insufficient level of
control over that property to claim the forum in the name of
the State. In Consolidated Edison, the Supreme Court rejected
an attempt by the State of New York, acting through the New
York Public Service Commission, to regulate Consolidated
10
As noted above, where a plaintiff seeks only selective access to the
property, such as a particular program administered on the property, then
the forum is the program rather than the property. See, e.g., Cornelius, 473
U.S. at 801. Nevertheless, in such cases, courts have continued to focus
on the proprietor of the property itself, evaluating the right of that party
to control access to the forum at issue. See, e.g., Currier, 379 F.3d at 729
(examining whether Postal Service “open[ed] up its property for use as a
public forum” even though the relevant forum was only the provision of
general delivery service); cf. Cornelius, 473 U.S. at 801-02 (noting that
the Court would not ignore the nature of the federal workplace itself even
though the forum was merely a type of access to that property). Here,
although the workplaces of the local governments constitute the larger
properties, the relevant fora are the payroll deduction programs to which
Plaintiffs seek access.
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13543
Edison’s monthly bill inserts. 447 U.S. at 532-33. The State
argued that it was entitled to treat the billing envelope as
“subject to the State’s plenary control” because of the State’s
regulatory interest in controlling operations of a public utility.
Id. at 540; see also id. at 534 n.1 (noting that Consolidated
Edison, although privately owned, was a government-
regulated monopoly). The Court held that the State’s legiti-
mate regulatory interest in controlling Consolidated Edison’s
activities did not alter the nature of the property as private;
therefore, caselaw governing rights of access to governmental
property did not apply. Id. at 539-40 & n.8.
C.
Reviewing the relationship between the State of Idaho and
the workplaces of local governments, we conclude that
Appellants have failed to establish that the State of Idaho is
the proprietor of the local workplaces or of local government
payroll systems. The State’s relationship with the local gov-
ernments instead resembles that of a regulator who possesses
broad powers over them.
Appellants’ evidence of control over local governments is
similar to that presented by the State of New York in Consoli-
dated Edison. Appellants rely exclusively on the state legisla-
ture’s authority over Idaho’s political subdivisions, arguing
that the state’s power to regulate various aspects of local gov-
ernment necessarily gives it the right to control access to the
local governments’ payroll deduction programs. They point
out that the legislature may create, control, alter and abolish
local governments as it sees fit, subject only to the limits of
the Idaho Constitution, citing State ex rel. Hays v. Steunen-
berg, 45 P. 462, 463 (Idaho 1896). Appellants discuss the
doctrine of preemption of municipal law by State law, note
that local governments may levy taxes only to the extent they
are authorized to do so by the legislature, and note the limits
on the borrowing capabilities of counties, cities, and school
districts, citing Idaho Const. art. XII, § 6; id. art. XIII, § 4;
13544 POCATELLO EDUCATION ASS’N v. HEIDEMAN
Brewster v. City of Pocatello, 768 P.2d 765, 766 (Idaho
1988); Caesar v. State, 610 P.2d 517 (Idaho 1980); Idaho
Water Res. Bd. v. Kramer, 548 P.2d 35 (Idaho 1976); State v.
Robbins, 81 P.2d 1078, 1080 (Idaho 1938)).
Appellants note that school districts are supervised and
controlled by the State Board of Education, Idaho Code § 33-
116, which must approve the changing of school district
boundaries, the addition or subtraction of territory, and the
creation of new districts. Id. §§ 33-307, 33-308, 33-312.
Appellants also highlight Common School District No. 61 v.
Twin Falls Bank & Trust Co., 4 P.2d 342 (Idaho 1931), which
states that school districts are agencies of the state. Id. at 343;
but see Smith v. Meridian Joint Sch. Dist. No. 2, 918 P.2d
583, 591 (Idaho 1996) (calling this holding into doubt in light
of the subsequent passage of the Idaho Administrative Proce-
dures Act, which specifically defines the term “agency”).
Finally, school districts can only exercise implied powers
consistent with those expressly granted by the legislature.
Olmstead v. Carter, 200 P. 134, 135-36 (Idaho 1921).
[7] As illustrated by Consolidated Edison, however, the
generalized lawmaking power held by the legislature with
respect to a state’s political subdivisions does not establish
that the state is acting as a proprietor with respect to the prop-
erty of local governments. In Consolidated Edison, the New
York legislature had granted the Public Service Commission
broad regulatory powers over Consolidated Edison. See Con-
sol. Edison Co. v. Pub. Serv. Comm’n, 47 N.Y.2d 94, 102
(1979) (noting that the Public Service Commission was
granted “ ‘all powers necessary or proper to enable it to carry
out the purposes of’ the Public Service Law”) (quoting N.Y.
Pub. Serv. Law § 4(1)), rev’d, 447 U.S. 530 (1980). The
Court nevertheless found this broad grant of authority insuffi-
cient to render Consolidated Edison’s billing envelopes a
forum of the Public Service Commission. Here, nothing in the
Idaho Code suggests that Idaho is the proprietor of the local
government workplaces or their payroll deduction programs.
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13545
The statutes instead suggest the opposite — that the State has
granted units of local government the right to own and control
their own property, independent of the State’s control.
Many units of local government in Idaho are expressly
declared to be independent corporate bodies, suggesting inde-
pendent powers of management and governance as compared
with state agencies, which lack a similarly corporate status.
See, e.g., Idaho Code §§ 27-115 (cemetery maintenance dis-
tricts), 31-601 (counties), 31-4204 (housing authorities), 31-
4317 (recreation districts), 31-4903 (waste disposal districts),
33-301 (school districts), 33-2714 (library districts), 40-1301
(highway districts), 50-301 (cities); cf. id. §§ 20-201 (declar-
ing State Board of Corrections to be an agency of the State),
33-101 (State Board of Education belongs to the executive
department of state government), 36-101 (classifying Depart-
ment of Fish and Game as a branch of the executive depart-
ment of state government).
Caselaw has also recognized that local governments are
distinct entities from the State of Idaho. Cf. Idaho Sch. for
Equal Educ. Opportunity v. State, 97 P.3d 453, 457-58 (Idaho
2004) (affirming school districts’ right to sue the State despite
a statute purporting to limit this right); Smith, 918 P.2d at
590-91 (holding that school districts and their boards of trust-
ees are separate entities from the state); Union Pac. R.R. v.
Idaho, 654 F. Supp. 1236, 1241 (D. Idaho 1987) (denying
Eleventh Amendment immunity to county officials and hold-
ing that counties are independent political subdivisions of the
state).11
11
We note that the line of reasoning Appellants assert in this case has
also been considered and rejected with respect to the question of local
governments’ entitlement to Eleventh Amendment immunity. Various
local governments, arguing that they are creatures of their respective
states, have attempted to assert immunity from suit, but it is well-
established that local governments are not considered arms of the state for
such purposes. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 280-81 (1977); Workman v. City of New York, 179 U.S.
552, 563-66 (1900); Lincoln County v. Luning, 133 U.S. 529 (1890); see
also Regents of the Univ. v. Doe, 519 U.S. 425, 429-31 (1997).
13546 POCATELLO EDUCATION ASS’N v. HEIDEMAN
Of particular importance to forum analysis, the legislature
has granted many local governmental units various powers to
acquire, hold, and convey real and personal property. See,
e.g., Idaho Code §§ 27-118 (cemetery maintenance districts),
31-604 (counties), 31-1419 (fire protection districts), 31-4114
(television translator districts), 31-4204 (housing authorities),
31-4317 (recreation districts), 33-301 (school districts), 50-
301 (cities). These rights of ownership are clearly indepen-
dent of the State itself, as other portions of the Code discuss
the ability of the local government units to grant property to
the State or to other political subdivisions of the State. See,
e.g., Idaho Code §§ 31-1420(7). For example, school districts
have the same property transfer rights vis-à-vis the State as
they have vis-à-vis other government entities. Id. § 33-
601(4)(b). Appellants presented no evidence that local work-
places are treated differently than other types of property
owned by local government.
[8] In sum, the State’s broad powers of control over local
government entities are solely those of a regulator, analogous
to the New York Public Service Commission’s regulatory
powers over Consolidated Edison. Local governments are
independent corporations and many are explicitly granted the
right to own and control their own property. Lacking any evi-
dence of the State’s proprietary relationship with the local
government workplace, Appellants’ assertion that the payroll
deduction programs of local governments are nonpublic fora
belonging to the State must fail.
D.
When pressed at oral argument, Appellants conceded that
the State of Idaho is not the proprietor of local government
workplaces or their payroll deduction programs. Nevertheless,
Appellants suggest that Consolidated Edison, involving use of
private property, is fundamentally different from the situation
presented here, and that Plaintiffs’ focus on property owner-
ship and control is inapposite. They emphasize that, unlike
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13547
private corporations such as Consolidated Edison, local gov-
ernments are exclusively creatures of the State’s creation;
therefore, the instrumentalities of local governments are nec-
essarily the instrumentalities of the State of Idaho, regardless
of who “owns” them.
We do recognize that the forum doctrine’s stated roots in
property rights has been subject to some criticism. See, e.g.,
Kokinda, 497 U.S. at 747 n.4 (Brennan, J., dissenting); Timo-
thy Zick, Speech and Spatial Tactics, 84 Tex. L. Rev. 581
(2006) (arguing that First Amendment rights should depend
on the “place” of speech rather than the form of property);
Robert C. Post, Between Governance and Management: The
History and Theory of the Public Forum, 34 UCLA L. Rev.
1713, 1777 (1987) (“The Court’s present focus ‘on the char-
acter of the property at issue’ is a theoretical dead end,
because there is no satisfactory theory connecting the classifi-
cation of government property with the exercise of first
amendment rights.”) (quoting Perry Educ. Ass’n, 460 U.S. at
44). There is some support in the caselaw for an alternative
theory of forum analysis which evaluates the forum in light of
the degree of control exercised by the government entity.
Under this approach, the question is not one of ownership or
proprietorship but whether the government has exercised a
sufficient degree of control over the forum such that it should
be granted the right to make speech-restrictive rules in the
forum.
In United States Postal Service v. Council of Greenburgh
Civic Ass’ns, 453 U.S. 114 (1981), for example, the Court
applied forum analysis to privately-owned mailboxes. Id. at
123, 128. Clearly, no proprietary relationship exists between
the government and private mailboxes. Nevertheless, the
Court compared the government’s rights with respect to the
mailboxes to those of a private owner and declared that the
State had the ability to preserve “property under its control.”
Id. at 130. Cited laws controlling the use of mailboxes
included a federal regulation designating the boxes as “autho-
13548 POCATELLO EDUCATION ASS’N v. HEIDEMAN
rized depositor[ies]” of mail and federal criminal laws afford-
ing such boxes protection against damage and the destruction
of the mail contained therein. Id. at 123. Indeed, the boxes
only became “mailboxes” because of the government’s daily
use of the boxes for that purpose; in that sense, their essential
character was completely controlled by the government. See
also Perry, 460 U.S. at 46 (citing Greenburgh, 453 U.S. at
129, for the proposition that property owned or controlled by
the government calls for forum analysis); United Church of
Christ v. Gateway Econ. Div. Corp. of Greater Cleveland,
Inc., 383 F.3d 449, 454 (6th Cir. 2002) (recognizing that
whether a privately-owned sports Complex could be treated as
public property for purposes of forum analysis “turned on the
amount of control exercised over . . . the Complex by the
state”); Perez v. Hoblock, 368 F.3d 166, 169 n.2, 173 (2d Cir.
2004) (finding a private office in a privately-owned racetrack
to be a nonpublic forum where New York regulations exten-
sively controlled the sport of horse racing as well as the
track’s owner); Texas v. Knights of the Ku Klux Klan, 58 F.3d
1075, 1078-79 (5th Cir. 1995) (defining the adopt-a-highway
program as a nonpublic forum of the State of Texas, citing the
State’s detailed management of the program’s administra-
tion).
Under such circumstances, one can argue that the state has
a sufficient managerial interest in the resource to justify judi-
cial deference to its rules. See Post, supra, 34 UCLA L. Rev.
at 1775 (suggesting that the state is subject to greater First
Amendment restraints when it acts to govern the general pub-
lic than when it acts in a “managerial” capacity toward its
own institutions); see, e.g., Cornelius, 473 U.S. at 805 (run-
ning of charity drive involves the government’s “discretion
and control over the management of its personnel and internal
affairs”) (internal quotation marks and citation omitted);
Greer, 424 U.S. at 836-40 (granting deference to command-
ing officer to control access to public areas of military base
when candidates sought access in order to meet with military
personnel). Deference is appropriate where the government
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13549
needs to organize itself in an institutional manner. See Green-
burgh, 453 U.S. at 126, 128 (noting that mailboxes must be
“under the direction and control of the Postal Service” in
order to ensure its efficient operation and that they are “an
essential part of the Postal Service’s nationwide system for
the delivery and receipt of mail”). The regular exercise of
control over the administrative activities of a particular entity
demonstrates that the government is indeed the manager of
that entity. Such pervasive management also lessens the like-
lihood that a decision made in the course of managing an
entity, which results in the exclusion of expressive activity,
had as its purpose the suppression of expression.12 See Daven-
port, 127 S. Ct. at 2381-82 (noting situations involving
content-based restrictions of speech that are subject to relaxed
scrutiny because they raise no realistic concern over the sup-
pression of ideas).
But even if we were to approach forum analysis from the
vantage point Appellants urge, it would not alter our conclu-
sion. It is clear that the State of Idaho does not pervasively
manage local government workplaces or local government the
payroll deduction programs. Appellants cannot point to any
current or previous exercise of control over local govern-
ments’ administration of their payroll systems, except for the
subject statute, § 44-2004(2). Appellants could cite no other
situation in which Idaho has attempted to use its asserted
powers to manage the day-to-day operations of local govern-
ment personnel. The unique nature of the State’s intervention
therefore strongly suggests that the State’s purpose here is
exactly that against which the First Amendment protects —
the denial of payroll deductions for the purpose of stifling
political speech. Cf. R.A.V., 505 U.S. at 390. Appellants have
failed to establish that local governments’ payroll deduction
12
We emphasize, however, that this line of cases depends on pervasive
management. Mere governmental regulation of the property of others is
not enough to permit the government to control expressive content, as
Consolidated Edison shows, 447 U.S. at 539-40.
13550 POCATELLO EDUCATION ASS’N v. HEIDEMAN
programs involve Idaho’s discretion and control over the
management of its own internal affairs, see Cornelius, 473
U.S. at 805, such that the programs should be considered a
nonpublic forum of the State.
[9] Much of First Amendment analysis balances interests;
forum analysis attempts to balance the interests of the govern-
ment in controlling access to its property with the speech
interests of the parties who wish to gain access to the prop-
erty. See Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482
U.S. 569, 572 (1987); see Hill v. Colorado, 530 U.S. 703, 718
(2000); Kokinda, 497 U.S. at 737 (Kennedy, J., concurring);
Cornelius, 473 U.S. at 800. In this case, Appellants have
established generally that the State of Idaho has the ultimate
power of control over the units of government at issue but
have not established that the State actually operates or con-
trols the payroll deduction systems of local units of govern-
ment. This suggests that the State of Idaho did not establish
the forum and does not currently operate the forum. Conse-
quently, the State has a relatively weak interest in preventing
Plaintiffs from exercising their First Amendment rights as
compared to the actual controlling entities.13
13
The balancing process associated with forum analysis, a heavily fac-
tual inquiry, illustrates the logic of our conclusion. The classification of
payroll deduction programs as a particular type of forum, and the attendant
First Amendment rights of Plaintiffs with respect to the payroll deduction
programs, depend heavily upon the nature of the government’s interests in
operating the payroll deduction system (as evidenced by stated intent, pol-
icy, and practice) and whether the local government workplaces are com-
patible with the type of expressive activity embodied by politically-
oriented payroll deductions. See Cornelius, 473 U.S. at 802; cf. Perry, 460
U.S. at 47 (looking to facts regarding school district’s practice in operating
its mail system to determine what type of forum existed); Stewart v. D.C.
Armory Bd., 863 F.2d 1013, 1016-21 (D.C. Cir. 1988) (reversing dismissal
of complaint and directing district court to examine “objective indicia” of
government’s intent in operating football stadium). Nowhere has the State
shown that it is in a position to provide this information with respect to
local government workplaces. Nonpublic forum analysis simply cannot
occur here.
POCATELLO EDUCATION ASS’N v. HEIDEMAN 13551
[10] We therefore conclude that Appellants’ assertion that
local government payroll deduction systems are nonpublic
fora of the State of Idaho is unsupported by law or facts. The
public forum doctrine does not apply to Idaho’s decision to
prevent local government employers from granting an
employee’s request to make voluntary contributions to politi-
cal activities through a payroll deduction program. Accord-
ingly, we apply the strict scrutiny analysis described above,
and because § 44-2004(2) fails strict scrutiny, we hold the
statute unconstitutional as applied to local government
employers. The district court’s grant of summary judgment in
favor of Plaintiffs that Idaho Code § 44-2004(2) is unconstitu-
tional with respect to local units of government, including
school districts, is
AFFIRMED.