Initiative & Referendum Institute v. United States Postal Service , 417 F.3d 1299 ( 2005 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 2005 Decided August 9, 2005
No. 04-5045
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. 00cv01246)
David F. Klein argued the cause for appellants. With him
on the briefs were John R. Ferguson and Arthur B. Spitzer.
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
Before: GINSBURG, Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: A United States Postal Service
regulation bans “soliciting signatures on petitions, polls, or
surveys” on “all real property under the charge and control of
the Postal Service.” The district court rejected the plaintiffs’
First Amendment challenge to this regulation, concluding that
even if all exterior postal properties are public forums, the
regulation is a valid restriction on the time, place, or manner of
speech. For the reasons set forth below, we reverse the
judgment of the district court and remand the case for further
proceedings.
I
The appellants are seven individuals and organizations that
attempt to place initiatives on state ballots by collecting
signatures on petitions. They contend that sidewalks and other
exterior areas of post offices are particularly fertile locations for
the procurement of such signatures.1 Until relatively recently,
Postal Service regulations were silent on the subject of soliciting
petition signatures on postal premises, while a 1992 postal
bulletin expressly permitted “issue-oriented petitioning [and]
campaigning for a referendum or ballot initiative.” See POSTAL
BULLETIN 21814 (Apr. 30, 1992). In 1998, however, the Postal
Service amended its regulation governing “[c]onduct on postal
property” to ban that activity. 39 C.F.R. § 232.1. The
regulation now provides as follows, with the relevant change
italicized:
Soliciting alms and contributions, campaigning for
election to any public office, collecting private debts,
soliciting and vending for commercial purposes . . . ,
1
The appellants do not claim a right to collect signatures inside
post offices, an activity that is also constrained by regulation. See 39
C.F.R. § 232.1(a), (h)(1).
3
displaying or distributing commercial advertising,
soliciting signatures on petitions, polls, or surveys
(except as otherwise authorized by Postal Service
regulations), and impeding ingress to or egress from
post offices are prohibited.
39 C.F.R. § 232.1(h)(1) (emphasis added). Section 232.1
applies “to all real property under the charge and control of the
Postal Service.” Id. § 232.1(a). The regulation stipulates that it
must be posted “at a conspicuous place on all such property,”
id., and subjects violators to criminal penalties, including fines
and imprisonment. See id. § 232.1(p).
In 2000, the appellants brought suit against the Postal
Service in the United States District Court for the District of
Columbia, contending that § 232.1(h)(1) violates the First
Amendment. They argued that the regulation is unconstitutional
on its face and as applied to their specific petitioning activities.
Both sides moved for summary judgment.
The district court initially denied the motions, on the ground
that there were insufficient facts in the record to entitle either
party to judgment as a matter of law. See Initiative &
Referendum Inst. v. U.S. Postal Serv., 116 F. Supp. 2d 65, 67
(D.D.C. 2000). The court recognized that the scope of the
plaintiffs’ First Amendment rights depends upon whether the
property at issue is “defined as a traditional public forum, a
designated public forum, or a nonpublic forum.” Id. at 69. That
determination, the court said, “turns on an analysis of the
specific nature and characteristics of the actual property in
question.” Id. at 71. The court added that, in order to hold the
regulation unconstitutional on its face, it “would have to decide
whether all post office exterior property should be deemed a
traditional public forum, a designated public forum or a
nonpublic forum.” Id. at 73. Lacking sufficient “facts about all
4
actual post offices,” the court concluded that it could not
determine whether the regulation was “unconstitutional on its
face or [even] as applied.” Id.The court did, however, find some issues resolvable on the
record before it. First, it decided that § 232.1(h)(1) was content
neutral “because it was not adopted based on a disagreement
with the content of speech.” Id. at 74. Second, the court stated
that it did not need to further investigate whether any postal
property was a designated public forum, because designated
public forums may be closed by viewpoint- and content-neutral
regulations. Id. Finally, the court decided that § 232.1(h)(1)
“would withstand the minimal level of scrutiny applicable to
regulations in a nonpublic forum.” Id. at 75.
Following the district court’s decision, the appellants filed
an amended complaint identifying twelve postal properties on
which they had sought “and in the future would seek to gather
signatures on petitions.” First Am. Compl. ¶ 52, at 14. The
parties then engaged in discovery, and eventually cross-moved
for summary judgment again. At a hearing on those motions,
the Postal Service “announced . . . in open court that it ha[d]
changed its articulated position from the one it took early in this
litigation to one more favorable to plaintiffs on whether certain
alternative channels of communication on exterior postal
properties would violate 39 C.F.R. § 232.1.” Initiative &
Referendum Inst. v. U.S. Postal Serv., No. 00-1246, Order at 1
(D.D.C. Sept. 26, 2002) (“Sept. 2002 Order”). The change in
position was twofold. The Postal Service said that: (1) it would
not apply § 232.1(h)(1) to public perimeter sidewalks that are
indistinguishable from their non-postal counterparts; and (2)
where the regulation’s ban on soliciting signatures remained
applicable, it would limit the ban to the actual collection of
signatures on postal property and not apply it where a petitioner
merely asks people to sign at off-premises locations. See
5
Motions Hr’g Tr. at 29, 32-34 (Sept. 24, 2002). The Postal
Service “also expressed willingness to issue a bulletin to its
postmasters directing them to adhere to this changed position.”
Sept. 2002 Order at 1. The district court directed the Postal
Service to submit the text of such a proposed bulletin, and said
that it “would be relying on that changed position in deciding
upon the pending summary judgment motions.” Id.
Thereafter, the Postal Service submitted a proposed bulletin,
styled as a reminder to postmasters about their obligations in
enforcing § 232.1(h)(1)’s regulation of “activities in support of
ballot initiatives and public referenda.” Def.’s Notice of Filing
of Proposed U.S. Postal Service Postal Bulletin, Ex. 1. The
postal bulletin in its published form -- which largely resembles
the version submitted to the district court -- states that §
232.1(h)(1) does
not apply to municipal or other public perimeter
sidewalks, even if the Postal Service’s property line
extends onto such a sidewalk . . . . The beginning of
Postal Service-controlled space must be easily
distinguishable to members of the public by means of
some physical feature. For example, a Postal Service
sidewalk that is perpendicular to the city sidewalk
would indicate to members of the public that they are
entering onto Postal Service property, as would stairs
leading up to the entrance of a Post Office.
POSTAL BULLETIN 22119, at 19 (Jan. 8, 2004). The bulletin
further confines the regulation’s application
to efforts to have members of the public provide
signatures on Postal Service premises, and not to
communications that promote the signing of petitions,
polls, and surveys somewhere other than on Postal
6
S[e]rvice premises. . . . Thus, if a petition circulator
wishes to collect signatures for a petition, poll, or
survey, he or she would not be prohibited from
standing on exterior parts of Postal Service property
that are open to the public and passing out
informational leaflets, holding up a sign, or both. The
leaflet or sign could provide relevant information about
the petition, poll, or survey, and direct Postal Service
customers to nearby non-Postal Service property, that
is, property not under the Postal Service’s charge and
control, where they can sign the petition, poll, or
survey, if they so desire.
Id.
On December 31, 2003, the district court granted the Postal
Service’s motion for summary judgment. The court stated that
it could not hold § 232.1(h)(1) unconstitutional on its face unless
the regulation was unconstitutional as to each of the
approximately 34,000 postal installations in the country.
Initiative & Referendum Inst. v. U.S. Postal Serv., 297 F. Supp.
2d 143, 148 (D.D.C. 2003). Because “proper forum analysis
require[s] an examination of aspects of each of those
properties,” and because the record still lacked information “that
would be essential to support an injunction applicable to all such
locations,” the court concluded that the only way it could
declare the regulation facially unconstitutional was if “all
exterior post office properties [were] traditional public
for[ums]” and the regulation failed to pass constitutional muster
under the exacting scrutiny that applies to such forums. Id.Assuming for purposes of analysis that all the exterior properties
were public forums, the court found that § 232.1(h)(1) was a
valid time, place, or manner restriction because “this content-
neutral regulation promotes a significant government interest
7
and will leave open ample alternative channels of
communication.” Id. at 147. This appeal followed.
II
The First Amendment to the Constitution provides that
“Congress shall make no law . . . abridging the freedom of
speech, . . . or the right of the people . . . to petition the
Government for a redress of grievances.” There is no question
that “the solicitation of signatures for a petition involves
protected speech.” Meyer v. Grant, 486 U.S. 414, 422 n.5
(1988). Indeed, this kind of speech “is at the core of our
electoral process and of the First Amendment freedoms -- an
area of public policy where protection of robust discussion is at
its zenith.” Id. at 425 (citation and internal quotation marks
omitted).
The fact that petitioning constitutes protected speech,
however, “merely begins [the] inquiry.” Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799 (1985). The
Supreme 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.” Id. at
800. Under that analysis, “the extent to which the Government
can control access depends on the nature of the relevant forum.”
Id.Three forum categories have emerged. The first is referred
to as the “traditional” public forum. The analysis applicable to
this category is as follows:
“[P]ublic places” historically associated with the free
exercise of expressive activities, such as streets,
sidewalks, and parks, are considered, without more, to
8
be “public forums.” In such places, the government’s
ability to permissibly restrict expressive conduct is
very limited: the government may enforce reasonable
time, place, and manner regulations as long as the
restrictions “are content-neutral, are narrowly tailored
to serve a significant government interest, and leave
open ample alternative channels of communication.”
Additional restrictions such as an absolute prohibition
on a particular type of expression will be upheld only
if narrowly drawn to accomplish a compelling
governmental interest.
United States v. Grace, 461 U.S. 171, 177 (1983) (citations
omitted) (quoting Perry Education Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983)). The second category
is the “designated” public forum, “public property which the
state has opened for use by the public as a place for expressive
activity.” Perry Education Ass’n, 460 U.S. at 45. Restrictions
on expression in such forums are evaluated under the same
standard as that applicable to traditional public forums. Id. at
46. Finally, on government property that is not a public forum,
“the state 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.; see
generally Board of Airport Comm’rs v. Jews for Jesus, Inc., 482
U.S. 569, 573 (1987).
In considering the appellants’ facial challenge to the Postal
Service regulation, the district court made three key
determinations. First, it held that even if all postal properties
were public forums, the ban on soliciting signatures contained
in § 232.1(h)(1) would survive as a reasonable regulation of the
time, place, or manner of protected expression. In Part III, we
explain why in fact the ban fails scrutiny as a time, place, or
9
manner restriction in public forums. In Part IV.B, we explain
why one aspect of the ban is invalid (in the absence of a limiting
construction) even for postal properties that are not public
forums.
The court’s second key determination was that the
appellants’ facial challenge could succeed only by showing that
the regulation was unconstitutional in all of its applications. For
the reasons discussed in Part IV.A, we also disagree with that
determination.
Finally, the district court decided to conduct its inquiry as
though § 232.1(h)(1) had been modified by the then-draft postal
bulletin. For the reasons discussed in Part V, the bulletin
(subsequently issued as Postal Bulletin 22119) can play that role
only in part. We therefore initially analyze the constitutionality
of the regulation as it was published in the Federal Register and
codified in the Code of Federal Regulations.
III
The facial constitutionality of § 232.1(h)(1) depends in
large part on whether the postal properties at issue are public
forums. But we need not resolve the forum status of these
properties if the regulation would be a permissible restriction on
speech even in such forums. We therefore first ask (as the
district court did) whether § 232.1(h)(1) can be constitutionally
applied to public forums.
As noted above, “the government may enforce reasonable
time, place, and manner regulations” restricting expression in a
public forum “as long as the restrictions ‘are content-neutral, are
narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication.’”
Grace, 461 U.S. at 177 (citations omitted) (quoting Perry
10
Education Ass’n, 460 U.S. at 45). Although we conclude that §
232.1(h)(1) is content neutral and serves a significant
government interest, we find that it is not narrowly tailored and
does not preserve ample alternative channels of communication.
A
The Postal Service has advanced a significant, content-
neutral interest in support of its ban on the solicitation of
signatures on petitions. In explaining its rationale for amending
§ 232.1(h)(1), the Postal Service stated that it wanted “to
minimize the disruption of postal business and to provide
unimpeded ingress and egress of customers and employees to
and from post offices.” 62 Fed. Reg. 61,481, 61,481 (Nov. 18,
1997). The Supreme Court has repeatedly found this kind of
government interest sufficient to satisfy the significance and
content-neutrality elements of the time, place, or manner test.2
But while the government’s interest is sufficient, §
232.1(h)(1) is not narrowly tailored to effectuate it. To be
narrowly tailored, a regulation “need not be the least restrictive
or least intrusive means” of serving the government’s interests.
2
See Grace, 461 U.S. at 181-82 & n.10 (ban on picketing and
leafleting on the Supreme Court’s sidewalks “to protect persons and
property” and “to maintain proper order and decorum”); Heffron v.
Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 648-50
(1981) (ban on selling and distributing materials outside fixed
locations on state fairgrounds to “maintain the orderly movement of
the crowd”); Members of City Council v. Taxpayers for Vincent, 466
U.S. 789, 805-06 (1984) (ban on posting signs on public property to
“eliminat[e] clutter and visual blight”); see also Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) (“Government regulation of
expressive activity is content neutral so long as it is justified without
reference to the content of the regulated speech.” (internal quotation
marks omitted) (emphasis added)).
11
Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).
Nonetheless, it must not “burden substantially more speech than
is necessary to further the government’s legitimate interests.”
Id. at 799. A “statute is narrowly tailored if it targets and
eliminates no more than the exact source of the ‘evil’ it seeks to
remedy. A complete ban can be narrowly tailored, but only if
each activity within the proscription’s scope is an appropriately
targeted evil.” Frisby v. Schultz, 487 U.S. 474, 485 (1988).
The Postal Service “does not suggest that all signature-
gatherers engage in harassment of postal customers.”
Appellee’s Br. at 46. It contends only “that the potential exists
and, in fact, occasionally does occur.” Id. (emphasis added). As
the government explained in its memorandum to the district
court, the Postal Service argues that the “restrictions target
precisely the conduct that impinges on the significant
government interests sought to be advanced, i.e., signature-
gathering activities that interfere with customer satisfaction by
being, at times, disruptive, that occasionally give the appearance
of bias or partiality on the part of [the Postal Service], and that
at times require postal employees to spend too much of their
time on nonpostal business.” Def.’s Stmt. Mat. Facts at 36
(emphasis added). “There is no evidence,” the government
insists, that the “regulation restricting signature-gathering
activities on exterior postal property does not serve these
legitimate interests.” Id.We agree that the regulation serves the government’s
legitimate interests. But it surely does not, in the government’s
words, “target” those interests “precisely.” To the contrary,
since the problems the government identifies arise only
“occasionally” and “at times,” the across-the-board ban on
signature solicitation necessarily bars much solicitation that is
not disruptive, does not give the appearance of partiality on the
part of the Postal Service, and does not require excessive postal
12
worker time. Thus, a “substantial portion of the burden on
speech does not serve to advance” the government’s content-
neutral goals. American Library Ass’n v. Reno, 33 F.3d 78, 88
(D.C. Cir. 1994) (internal quotation marks omitted).
This lack of narrow tailoring was precisely the problem that
led the Supreme Court, in United States v. Grace, to rule
unconstitutional a statutory ban on the display of flags or
banners on the sidewalk in front of the Court’s own building.
As the Court said:
We do not denigrate the necessity to protect persons
and property or to maintain proper order and decorum
within the Supreme Court grounds, but we do question
whether a total ban on carrying a flag, banner or device
on the public sidewalks substantially serves these
purposes. There is no suggestion, for example, that
appellees’ activities [one appellee had distributed
leaflets; the other had displayed a sign with the text of
the First Amendment] in any way obstructed the
sidewalks or access to the Building . . . or in any way
interfered with the orderly administration . . . of the
grounds.
Grace, 461 U.S. at 182. Similarly, in Ward v. Rock Against
Racism, the Court explained why a total prohibition of
handbilling would be unconstitutional:
A ban on handbilling, of course, would suppress a
great quantity of speech that does not cause the evils
that it seeks to eliminate, whether they be fraud, crime,
litter, traffic congestion, or noise. For that reason, a
complete ban on handbilling would be substantially
broader than necessary to achieve the interests
justifying it.
13
Rock Against Racism, 491 U.S. at 799 n.7 (citation omitted).
Section 232.1(h)(1)’s absolute prohibition against soliciting
signatures on petitions anywhere on postal property suffers from
the same flaw these cases describe.3
Further evidence that § 232.1(h)(1) prohibits substantially
more speech than is necessary to achieve its aims is the fact that
the Postal Service already accomplishes those purposes through
myriad other means that do not involve an outright ban on the
solicitation of signatures. Such means include separate bans, in
the same regulation, against disturbing postal patrons and
3
This court has found the same problem in other government
efforts to restrict speech in public forums. In Community for Creative
Non-Violence v. Turner, for example, we held invalid a regulation,
promulgated by the Washington Metropolitan Area Transit Authority
(WMATA), that required permits for organized free speech activities
at above-ground areas of WMATA stations. The requirement was not
narrowly tailored, we said, because “[w]hile the Regulation arguably
eliminates the ‘sources of evil’ that allegedly threaten WMATA’s
ability to provide a safe and efficient transportation system, it does so
at too high a cost, namely, by significantly restricting a substantial
quantity of speech that does not impede WMATA’s permissible
goals.” 893 F.2d 1387, 1392 (D.C. Cir. 1990). Likewise, in
Lederman v. United States, we declared unconstitutional a ban on
demonstrations on the sidewalk on the U.S. Capitol’s East Front. 291
F.3d 36, 39 (D.C. Cir. 2002). Although we recognized that the ban
accomplished the legitimate purpose of reducing pedestrian traffic and
decreasing security risks, we concluded that “[s]ome banned
activities,” such as “a single leafleteer standing on the East Front
sidewalk,” were “no more likely [to] block traffic or threaten security”
than were ordinary pedestrians. Id. at 45. “[T]he Constitution does
not tolerate,” we said, “regulations that, while serving their purported
aims, prohibit a wide range of activities that do not interfere with the
Government’s objectives.” Id. at 44 (quoting Community for Creative
Non-Violence v. Kerrigan, 865 F.2d 382, 390 (D.C. Cir. 1989)).
14
employees and against impeding entry. 4 Of course, the
availability of other means of accomplishing a governmental
objective does not foreclose the government’s ability to pursue
its chosen course. But it is probative of whether the government
is burdening substantially more speech than is necessary to
accomplish that objective. A petition circulator who reduces a
passerby “to tears” or otherwise harasses or impedes postal
patrons -- concerns invoked by the Postal Service in support of
the regulation, see Appellee’s Br. at 45 -- can readily be dealt
with under those other provisions.
Both the Supreme Court and this court have considered the
availability of other means when evaluating a restriction’s
tailoring. In Members of City Council v. Taxpayers for Vincent,
the Court noted that “ordinances that absolutely prohibit[]
handbilling on the streets [are] invalid” because cities can
“adequately protect the esthetic interest in avoiding litter
without abridging protected expression merely by penalizing
4
See 39 C.F.R. § 232.1(e) (“Disorderly conduct, or conduct . . .
which obstructs the usual use of entrances, foyers, corridors, offices,
elevators, stairways, and parking lots, or which otherwise tends to
impede or disturb the public employees in the performance of their
duties, or which otherwise impedes or disturbs the general public in
transacting business or obtaining the services provided on property, is
prohibited.”); id. § 232.1(h)(1) (“[I]mpeding ingress to or egress from
post offices [is] prohibited.”); id. § 232.1(k)(4) (“The blocking of
entrances, driveways, walks, loading platforms, or fire hydrants in or
on property is prohibited.”); see also POSTAL BULLETIN 22119, at 19
(noting that the activities of petition circulators “are still subject to
other provisions in the regulations pertaining to all parts of Postal
Service property, such as those prohibiting disturbances, soliciting
contributions or collecting private debts, campaigning for public
office, vending, commercial advertising, impeding ingress and egress,
depositing or posting literature, and setting up tables, stands, or other
structures”).
15
those who actually litter.” 466 U.S. 789, 808-09 (1984); see
City of Ladue v. Gilleo, 512 U.S. 43, 58-59 (1994) (noting that
the defendant city could adopt “more temperate measures” than
a near-total ban on residential signs that “could in large part
satisfy [the city’s] regulatory needs without harm to the First
Amendment rights of its citizens”). And in Lederman v. United
States, we held that “[p]erhaps the most troubling aspect” of the
ban against “demonstration activity” on the sidewalk on the East
Front of the U.S. Capitol was “the ready availability of
substantially less restrictive alternatives that would equally
effective[ly] promote safety and orderly traffic flow,” such as
“existing laws” that bar disruptive conduct and obstructing
passage, and the possibility of requiring advance permits for
demonstrations. 291 F.3d 36, 45-46 (D.C. Cir. 2002) (internal
quotation marks omitted).
Finally, the Postal Service disputes the suggestion that
prohibitions targeted at disturbances and impediments fully
accomplish its purposes, since “people who come to post offices
to engage in postal business may well be irritated by even the
nicest circulator, however brief the interruption may be, because
they are being interrupted in what they set out to do, questioned
about something plainly personal . . . , and asked to think about
an issue that presumably was not on their minds when they set
out to engage in postal business.” Appellee’s Br. at 46-47. But
the “ability of government, consonant with the Constitution, to
shut off discourse solely to protect others from hearing it is . . .
dependent upon a showing that substantial privacy interests are
being invaded in an essentially intolerable manner.” Erznoznik
v. City of Jacksonville, 422 U.S. 205, 209-10 (1975) (quoting
Cohen v. California, 403 U.S. 15, 21 (1971)). “Speech is often
provocative and challenging. . . . That is why [it is] . . . protected
against censorship or punishment, unless shown likely to
produce a clear and present danger of a serious substantive evil
that rises far above public inconvenience, annoyance, or unrest.”
16
Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). There is
simply no reasonable argument that either an invasion of the
“substantial privacy interests” of postal patrons, or a “clear and
present danger of a serious substantive evil,” lurks in the
importuning of postal patrons on public sidewalks.
B
Section 232.1(h)(1) also fails a second element of the time,
place, or manner test: it does not leave open ample alternative
channels of communication. Rather, the plain language of §
232.1(h)(1) completely denies petition circulators the ability to
seek support for their petitioning efforts anywhere on postal
premises.
The Postal Service contends that it nonetheless satisfies this
element because the appellants “may seek to gather signatures
on their initiatives and referenda in numerous other places on
non-postal property.” Appellee’s Br. at 52. We put to one side
the fact that the Service has not shown that there are such other
places anywhere near postal property, 5 because it is in any event
not enough that petitioners may solicit signatures at other
locations. The Supreme Court has stressed the importance of
providing access “within the forum in question.” Heffron v.
International Soc’y for Krishna Consciousness, Inc., 452 U.S.
640, 655 (1981). “[O]ne is not to have the exercise of his liberty
of expression in appropriate places abridged on the plea that it
5
See Clark v. Community for Creative Non-Violence, 468 U.S.
288, 293 n.5 (1984) (noting that “it is common to place the burden
upon the Government to justify impingements on First Amendment
interests”); United States v. Doe, 968 F.2d 86, 87 (D.C. Cir. 1992)
(holding that the government has the “burden of showing that [a]
regulation is ‘narrowly tailored’ to further the government’s interest
. . . in . . . an acknowledged public forum”).
17
may be exercised in some other place.” Reno v. ACLU, 521 U.S.
844, 880 (1997) (quoting Schneider v. New Jersey, 308 U.S.
147, 163 (1939)).
Indeed, the United States made the same argument, to no
avail, in Grace. There, the government asserted that “the
inquiry should not be confined to the Supreme Court grounds
but should focus on ‘the vicinity of the Supreme Court’ or ‘the
public places of Washington D.C.’” Grace, 461 U.S. at 180.
“Viewed in this light,” the government contended, there were
“sufficient alternative areas within the relevant forum, such as
the streets around the Court or the sidewalks across those
streets[,] to permit [the statute] to be considered a reasonable
‘place’ restriction.” Id. The Court rejected the argument,
holding that the statutory ban on displaying flags or banners on
the Supreme Court’s perimeter sidewalk was unconstitutional.
See id. at 181. In Community for Creative Non-Violence v.
Turner, this court likewise held that a Washington Metropolitan
Area Transit Authority (WMATA) regulation, which required
permits for organized free speech activities at Metro stations,
failed the ample alternatives prong because there were “no
WMATA areas not covered by the permit requirement” and
hence “no intra-forum alternative[s].” 893 F.2d 1387, 1393
(D.C. Cir. 1990).6
6
See Rock Against Racism, 491 U.S. at 802 (finding that New
York City’s sound-amplification guideline for use of the Central Park
bandshell left open ample alternatives because it “continue[d] to
permit expressive activity in the bandshell” (emphasis added)); cf.
International Soc’y for Krishna Consciousness v. Lee [ISKCON v.
Lee], 505 U.S. 672, 684-85 (1992) (upholding a ban on soliciting
contributions inside nonpublic-forum airport terminals, in part because
solicitation was permitted on exterior terminal sidewalks and thus “the
resulting access of those who would solicit the general public [was]
quite complete”).
18
The Postal Service also maintains that its total ban on
signature solicitation is saved by the fact that other forms of
communication, including leafleting and talking about the issue
raised by the petition, may take place on postal property. But in
Grace, the statutory prohibition on the display of a “flag,
banner, or device” was not saved by the fact that the statute did
“not prohibit all expressive conduct.” 461 U.S. at 181 n.10.
Instead, the Court emphasized that exacting scrutiny should be
applied to an “absolute prohibition on a particular type of
expression.” Id. at 177 (emphasis added); see id. at 181 (noting
that the statute “totally bans the specific communicative activity
on the public sidewalks around the Court grounds” (emphasis
added)). Similarly, in City of Ladue, the Court rejected a city’s
claim that its ban against signs on residential property satisfied
the time, place, or manner test because residents “remain[ed]
free to convey their desired messages by other means, such as
hand-held signs, letters, [and] handbills.” City of Ladue, 512
U.S. at 56 (internal quotation marks omitted). The Court noted
that expression via residential signs is a “means of
communication that is both unique and important,” id. at 54, and
that its “prior decisions have voiced particular concern with laws
that foreclose an entire medium of expression.” Id. at 55.7
Moreover, although in the context of bans on soliciting
funds it is possible to separate the protected speech involved in
the solicitation from the related conduct of actually collecting
funds,8 “the circulation of a petition involves the type of
See Frisby, 487 U.S. at 486 (recognizing that certain “means of
7
communication” -- including handbilling, solicitation, and marching --
may “not be completely banned” in residential areas).
8
See Friends of the Vietnam Veterans Memorial v. Kennedy, 116
F.3d 495, 497 (D.C. Cir. 1997) (“The cases protecting the right to
solicit contributions in a public forum do so not because the First
19
interactiv e communication concerning political change that is
appropriately described as ‘core political speech.’” Meyer, 486
U.S. at 421-22 (emphasis added). That interactive
communication comprises both the request for the signature and
the signature itself, because the circulation of an initiative
petition not only involves the “expression of a desire for
political change,” id. at 421, but also is a means of “plac[ing] the
matter on the ballot, [and thus making] the matter the focus of
statewide discussion,” id. at 423. Indeed, the circulation of a
petition involves an element of speech beyond leafleting or sign-
holding, because the collection of signatures -- particularly for
an initiative or referendum ballot -- is essential to accomplishing
the circulator’s purpose.
The Supreme Court has held that restrictions on petition
circulation can impermissibly impede protected speech even if
they do not ban signature collection outright. In Meyer v. Grant,
the Court struck down a state law regulating the initiative
process that made it a felony to pay petition circulators. Id. at
416. As the Postal Service does here, the state argued there that,
“even if the statute imposes some limitation on First
Amendment expression, the burden is permissible because other
avenues of expression remain open to” the plaintiffs. Id. at 424.
Rejecting this argument, the Court held:
Amendment contemplates the right to raise money, but rather because
the act of solicitation contains a communicative element.”); see also
ISKCON v. Lee, 505 U.S. at 704-05 (Kennedy, J., concurring in the
judgments) (stating that, although a ban on “all speech that requested
the contribution of funds” would be unconstitutional, a prohibition
that reached “only personal solicitations for immediate payment of
money” was permissible because it was “directed only at the physical
exchange of money, which is an element of conduct interwoven with
otherwise expressive solicitation”).
20
That appellees remain free to employ other means to
disseminate their ideas does not take their speech
through petition circulators outside the bounds of First
Amendment protection. [The] prohibition of paid
petition circulators restricts access to the most
effective, fundamental, and perhaps economical avenue
of political discourse, direct one-on-one
communication. That it leaves open “more
burdensome” avenues of communication, does not
relieve its burden on First Amendment expression.
Id. Like the state law in Meyer, the Postal Service’s prohibition
of signature solicitation “limits the size of the audience” the
appellants can reach and “makes it less likely that [they] will
garner the number of signatures necessary to place the matter on
the ballot.” Id. at 423. Section 232.1(h)(1) thus “trenches upon
an area in which the importance of First Amendment protections
is ‘at its zenith,’” id. at 425, and we “are not persuaded that
adequate substitutes exist for the important medium of speech”
that the Postal Service has closed off. City of Ladue, 512 U.S.
at 56.
In sum, the Postal Service’s ban on soliciting signatures
neither is narrowly tailored nor ensures ample alternative
channels of communication. It therefore cannot be upheld as a
time, place, or manner restriction of speech if applied in a public
forum.
IV
The conclusion that § 232.1(h)(1) fails scrutiny if exterior
postal property constitutes a public forum does not alone resolve
the appellants’ facial challenge. That is not, however, because
the appellants must prove that all applications of the regulation
are unconstitutional in order to succeed on a facial challenge.
21
To the contrary, there “are two quite different ways in which a
statute or ordinance may be considered invalid ‘on its face’ --
either because it is unconstitutional in every conceivable
application, or because it seeks to prohibit such a broad range of
protected conduct that it is unconstitutionally ‘overbroad.’”
Taxpayers for Vincent, 466 U.S. at 796. Although the “every
application” formulation is the general rule, the latter is the rule
for facial challenges brought under the First Amendment. “The
showing that a law punishes a substantial amount of protected
free speech, judged in relation to the statute’s plainly legitimate
sweep, suffices to invalidate all enforcement of that law.”
Virginia v. Hicks, 539 U.S. 113, 118-19 (2003) (citation and
internal quotation marks omitted); see Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 244, 256 (2002). As the Supreme
Court has explained, it “provided this expansive remedy out of
concern that the threat of enforcement of an overbroad law may
deter or ‘chill’ constitutionally protected speech -- especially
when the overbroad statute imposes criminal sanctions.” Id. at
119.
A
Given our conclusion that § 232.1(h)(1) is unconstitutional
when applied to a public forum, one way in which the regulation
would be overbroad is if a substantial number of exterior postal
properties constitute public forums. If they do, the regulation
creates an unacceptably high risk of chilling constitutionally
protected solicitation on such properties. See Hicks, 539 U.S. at
119; Reno v. ACLU, 521 U.S. at 872.
Certain kinds of postal sidewalks present hard questions
regarding their forum status. In United States v. Kokinda, four
Justices concluded that a particular postal sidewalk -- one
“constructed solely to provide for the passage of individuals
engaged in postal business” and that “le[d] only from the
22
parking area to the front door of the post office” -- was not a
public forum. 497 U.S. 720, 727 (1990) (O’Connor, J.,
announcing the judgment of the Court and joined by three
Justices). Those four also concluded that a ban on “soliciting
alms and contributions” (a separate clause of the same
regulation at issue here) was “reasonable as applied” to that
sidewalk. Id. at 737. Four other Justices, however, found that
“the sidewalk in question” was a public forum, and that the
restriction was not a permissible time, place, or manner
restriction. Id. at 740 (Brennan, J., joined by three Justices,
dissenting). Justice Kennedy, writing separately, agreed there
was a “powerful argument” that “this postal sidewalk . . . is
more than a nonpublic forum,” id. at 737 (Kennedy, J.,
concurring in the judgment), but concluded that it was
unnecessary to decide the question because even if the sidewalk
was a public forum, “the postal regulation me[t] the traditional
standards we have applied to time, place, and manner
restrictions of protected expression.” Id. at 738. As the district
court noted and the Postal Service agrees, the split nature of the
decision in Kokinda “provides no definitive guidance” on the
forum status of postal sidewalks. Appellee’s Br. at 17 (quoting
Initiative & Referendum Institute, 116 F. Supp. 2d at 70).
But while a sidewalk like that in Kokinda may be hard to
categorize, the Supreme Court has made categorization of
another kind of sidewalk straightforward. In Grace, the Court
held that it could “discern no reason why” the “sidewalks
comprising the outer boundaries of the Court grounds” --
sidewalks that are “indistinguishable from any other sidewalks
in Washington, D.C.” -- should not be treated as traditional
public forums. 461 U.S. at 179. The Court explained:
Sidewalks, of course, are among those areas of public
property that traditionally have been held open to the
public for expressive activities and are clearly within
23
those areas of public property that may be considered,
generally without further inquiry, to be public forum
property. . . . There is no separation, no fence, and no
indication whatever to persons stepping from the street
to the curb and sidewalks that serve as the perimeter of
the Court grounds that they have entered some special
type of enclave. . . . Traditional public forum property
. . . will not lose its historically recognized character
for the reason that it abuts government property that
has been dedicated to a use other than as a forum for
public expression.
Id. at 179-80. Given that the “public sidewalks forming the
perimeter of the Supreme Court grounds” are public forums, id.
at 180, there can be no doubt that similar sidewalks abutting post
offices qualify as well. “The mere fact that a sidewalk abuts
property dedicated to purposes other than free speech is not
enough to strip it of public forum status.” Henderson v. Lujan,
964 F.2d 1179, 1182 (D.C. Cir. 1992); see id. (holding that two
sidewalks within the area designated as the Vietnam Veterans
Memorial, “indistinguishable from ordinary sidewalks used for
the full gamut of urban walking,” constitute public forums);
Lederman, 291 F.3d at 44 (holding that the sidewalk on the East
Front of the Capitol, at the foot of the Capitol steps, is a public
forum).
It is uncontested that some postal properties contain what
we will hereinafter refer to as Grace sidewalks. For example,
on the list of twelve postal facilities assembled by the appellants
in support of their as-applied challenge is the Georgetown Post
Office in Washington, D.C., which directly abuts a sidewalk that
is indistinguishable from the municipal sidewalk. See
Appellants’ Br. at 55. At oral argument, the Postal Service
conceded that this sidewalk, which the Postal Service owns,
constitutes a Grace sidewalk and hence a public forum. See
24
Oral Arg. Tape at 37:43-39:18. The appellants contend that
their evidentiary “exhibits show[] that the pedestrian sidewalks”
at the other urban post offices on the list also are
“indistinguishable from the types of public sidewalks that courts
have always described as ‘quintessential public forums.’”
Appellants’ Br. at 54. The Postal Service does not deny this
contention.
Not all post offices, of course, have Grace sidewalks.
Although it seems likely that many urban post offices do, and
that the regulation’s restraint on protected speech is thus
substantial, the district court did not consider the question
because it wrongly believed that a facial challenge requires
proof that all exterior postal properties constitute public forums.
See Initiative & Referendum Inst., 297 F. Supp. 2d at 148.
Accordingly, on remand the district court will have to determine
whether the Postal Service’s regulation “abridges protected
speech . . . in a good number of cases.” Ruggiero v. FCC, 317
F.3d 239, 248 (D.C. Cir. 2003) (Randolph, J., concurring).
B
But § 232.1(h)(1) has another facial flaw, apart from its
application to Grace sidewalks. On its face, the regulation
appears to bar pure solicitation -- in the sense of asking postal
patrons to sign petitions -- even if the signatures themselves are
to be collected off postal premises. See 39 C.F.R. § 232.1(h)(1)
(“[S]oliciting signatures on petitions, polls, or surveys . . . [is]
prohibited.”). The ordinary meaning of “solicit” is merely to
request, without reference to whether an immediate response is
expected. See MERRIAM WEBSTER’S COLLEGIATE DICTIONARY
1118 (10th ed. 1996) (defining “solicit” as to “entreat” or
“approach with a request or plea”); BLACK ’S LAW DICTIONARY
1427 (8th ed. 2004) (defining “solicitation” as the “act or an
instance of requesting or seeking to obtain something; a request
25
or petition”). In criminal law, “solicitation” is regarded as a
freestanding offense: requesting the unlawful act is itself a
crime, regardless of whether the request is consummated. See
id.9 Indeed, the district court described the more limited
prohibition contained in the draft postal bulletin -- which only
barred on-site collection of signatures -- as a “change” in the
Postal Service’s own previously “articulated position” regarding
the meaning of the regulation. Sept. 2002 Order at 1.
It is clear that a broadscale prohibition against asking postal
patrons to sign petitions at other locations, whether such
requests are made verbally or in distributed pamphlets, is
unconstitutional even if all postal properties are nonpublic
forums. Although restrictions on speech in such forums are
permissible, they still must be “reasonable.” Perry Education
Ass’n, 460 U.S. at 46. The Supreme Court has repeatedly held
absolute bans on pamphleteering and canvassing invalid,
9
See, e.g., People v. Mason, 642 P.2d 8, 13 (Colo. 1982) (en
banc) (“The offense of soliciting is complete when the offender
solicits another for prostitution . . . . The prostitute’s subsequent
decision to engage or not to engage in a sexual act with her customer
is not essential to th[is] crime[].”); People v. Burt, 288 P.2d 503, 505
(Cal. 1955) (“[Solicitation of a felony,] unlike conspiracy, does not
require the commission of any overt act. It is complete when the
solic itation is made, and it is immaterial that the object of the
solicitation is never consummated, or that no steps are taken toward
its consummation.”).
26
whether applied to nonpublic governmental forums 1 0 or to
private property, 11 because of their substantial overbreadth.
None of the government interests previously identified --
against disturbing postal patrons, impeding their access, or
invading their privacy -- reasonably justifies an across-the-board
prohibition of pure solicitation on postal sidewalks. Although
simply asking for a signature might in some circumstances
create one or another of those problems, it is doubtful that it
would do so in many. Nor is there any reason to believe that
requesting signatures is any more disruptive, or invasive, than is
approaching (or talking to) a postal patron in the course of
“[l]eafleting, distributing literature, picketing, and
demonstrating,” which the postal regulations do not prohibit on
exterior postal property. 39 C.F.R. § 232.1(h)(3). Indeed, the
Postal Service does not even attempt to defend the regulation if
it is construed as applying to pure solicitation. See Oral Arg.
Tape at 44:51-45:29.
To do so would appear to be an impossible task in light of
Supreme Court precedent. In Watchtower Bible, for example,
the Court found facially unconstitutional a municipal ordinance
10
See Lee v. International Soc’y for Krishna Consciousness, Inc.
[Lee v. ISKCON], 505 U.S. 830 (1992) (holding unconstitutional a ban
on leafleting in airport terminals); Jews for Jesus, 482 U.S. at 575-76(holding unconstitutional a ban that effectively prohibited, within an
airport terminal, “talking” or “the wearing of campaign buttons or
symbolic clothing” that was not “airport related,” noting that “no
conceivable governmental interest would justify such an absolute
prohibition of speech”).
11
See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of
Stratton, 536 U.S. 150, 160 (2002) (noting that “[f]or over 50 years,
the Court has invalidated restrictions on door-to-door canvassing and
pamphleteering”).
27
that required a permit before one could go on private property
to engage in advocacy of a political cause. Watchtower Bible &
Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 160
(2002). The Court acknowledged that the interests advanced in
support of the ordinance -- prevention of fraud and crime, and
the protection of residents’ privacy -- were “important interests
that the Village may seek to safeguard through some form of
regulation of solicitation activity.” Id. at 165. Nonetheless, the
Court said, “[w]e must also look . . . to the amount of speech
covered by the ordinance and whether there is an appropriate
balance between the affected speech and the governmental
interests that the ordinance purports to serve.” Id. Even though
the government’s interests “arguably” could support such an
ordinance if “applie[d] only to commercial transactions and the
solicitation of funds,” id., the Court found the ordinance too
broad because those interests did not “support . . . its application
to petitioners, to political campaigns, or to enlisting support for
unpopular causes,” id. at 168. Similarly, in Lee v. ISKCON the
Court held that a ban on the distribution of literature in airport
terminals was invalid under the First Amendment, 505 U.S. 830,
831 (1992), with Justice Kennedy12 distinguishing the ban from
one reaching only “in-person solicitation of money for
immediate payment.” ISKCON v. Lee, 505 U.S. at 693
(Kennedy, J., concurring in the judgments) (emphasis added);
see id. at 704 (declaring that, while a “solicitation regulation”
that “prohibit[ed] the ‘solicitation and receipt of funds’” was
12
The Court’s per curiam opinion in Lee v. ISKCON invalidated
the leafleting ban “[f]or the reasons expressed in the opinions of
Justice O’Connor, Justice Kennedy, and Justice Souter” in ISKCON
v. Lee, 505 U.S. 672 (1992). Lee v. ISKCON, 505 U.S. at 831.
28
constitutional, one that prohibited “all speech that solicits
funds” would be unconstitutional (emphasis added)).13
The Postal Service has marshaled no stronger interest than
those rejected in Watchtower and ISKCON v. Lee in defense of
the regulation, as construed to ban pure solicitation.
Accordingly, we conclude that this most straightforward
construction of § 232.1(h)(1) renders the regulation
unconstitutional on its face.
V
A limiting construction that is “fairly” possible can save a
regulation from facial invalidation. Jews for Jesus, 482 U.S. at
575; see New York v. Ferber, 458 U.S. 747, 769 n.24 (1982)
(“When a federal court is dealing with a federal statute
challenged as overbroad, it should . . . construe the statute to
avoid constitutional problems, if the statute is subject to such a
limiting construction”). The Postal Service argues that Postal
Bulletin 22119 is adequate to perform that office. The Bulletin
modifies 39 C.F.R. § 232.1 in two respects: it permits pure
solicitation -- i.e., asking for signatures but not immediately
13
See also Kokinda, 497 U.S. at 733 (O’Connor, J., joined by
three Justices) (finding a ban on “soliciting alms and contributions” on
postal premises reasonable because, “[s]ince 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” and thus is “inherently disruptive” (emphasis
added)); Jews for Jesus, 482 U.S. at 574 (holding unconstitutional a
ban on First Amendment activities in an airport because it “does not
merely regulate expressive activity . . . that might create problems
such as congestion or the disruption of the activities of those who use”
the terminal).
29
collecting them -- on any exterior postal property; 14 and it
permits both signature solicitation and collection on Grace
sidewalks. 1 5 We conclude that the first modification is a
plausible limiting construction, but that the latter is not.
Although the ordinary meaning of “solicit” is merely to ask,
we cannot say that it would be unreasonable to read a ban on
“soliciting signatures on petitions” as the Postal Service does:
to apply only “to efforts to have members of the public provide
signatures on Postal Service premises, and not to
communications that promote the signing of petitions, polls, and
surveys somewhere other than on Postal Service premises.”
POSTAL BULLETIN 22119, at 19. In his separate opinion in
Kokinda, for example, Justice Kennedy accepted the
government’s representation that the Postal Service’s ban on
“[s]oliciting alms and contributions” permitted the respondents
“to distribute literature soliciting support, including money
contributions, provided there is no in-person solicitation for
payments on the premises.” 497 U.S. at 739 (Kennedy, J.,
concurring in the judgment). Similarly, in her plurality opinion,
Justice O’Connor observed that “the act of soliciting alms or
contributions usually has as its objective an immediate act of
charity.” Id. at 733 (O’Connor, J., joined by three other
See POSTAL BULLETIN 22119, at 19 (stating that the regulation
14
“extends only to efforts to have members of the public provide
signatures on Postal Service premises, and not to communications that
promote the signing of petitions, polls, and surveys somewhere other
than on Postal Service premises”).
15
See POSTAL BULLETIN 22119, at 19 (stating that the regulation
does “not apply to . . . public perimeter sidewalks, even if the Postal
Service’s property line extends onto such a sidewalk,” and that it does
not apply to exterior Postal Service property unless the “beginning of
Postal Service-controlled space [is] easily distinguishable to members
of the public by means of some physical feature”).
30
Justices) (emphasis added). Accordingly, we regard the Postal
Service’s construction of “soliciting” as adequate to cure the
problem identified in Part IV.B.
The Bulletin’s statement regarding the regulation’s
application to Grace sidewalks, however, is another matter.
Although a “statute must be construed, if fairly possible, so as
to avoid . . . the conclusion that it is unconstitutional, . . .
avoidance of a difficulty will not be pressed to the point of
disingenuous evasion.” George Moore Ice Cream Co. v. Rose,
289 U.S. 373, 379 (1933) (Cardozo, J.). Section 232.1 states
that it “applies to all real property under the charge and control
of the Postal Service.” 39 C.F.R. § 232.1(a) (emphasis added).
Neither a postal patron nor a postal employee charged with
enforcement could reasonably read the regulation’s language
and conclude -- as the Bulletin declares -- that the regulation
actually “does not apply to . . . public perimeter sidewalks, even
if the Postal Service’s property line extends onto such a
sidewalk.” POSTAL BULLETIN 22119, at 19 (emphasis added);
cf. Jews for Jesus, 482 U.S. at 575, 577 (holding that a
resolution barring “all ‘First Amendment activities’” was “not
fairly subject to a limiting construction”). Nor could a patron or
employee read § 232.1’s broad language as meaning that, in
order for it to apply, the “beginning of Postal Service-controlled
space must be easily distinguishable to members of the public by
means of some physical feature.” POSTAL BULLETIN 22119, at
19. This conclusion is not particularly surprising, because this
provision of the Bulletin is not really an “interpretation” of the
regulation at all. Rather, as the government explains, it is “no
more than an agency decision not to enforce the Postal Service’s
regulations on [the described] property.” Appellee’s Br. at 56.
Of course, it is perfectly permissible for the Postal Service
to change its enforcement policies or regulations in order to
eliminate the basis for a constitutional challenge. The problem
31
with the change at issue here is its format. It is “published”
solely in the form of an internal bulletin: it is not published in
the Federal Register, is not contained in the Code of Federal
Regulations, and is not posted for public examination in post
offices. By contrast, all of these things are true of § 232.1,
which by its terms “shall be posted and kept posted at a
conspicuous place on all” postal property. 39 C.F.R. § 232.1(a).
The contrast in format, coupled with the facial
inconsistency between the regulation and the Bulletin, is
decisive. Citizens interested in circulating petitions have no way
of knowing that the Bulletin, rather than the regulation, states
the Postal Service’s current policy. Were they to go to a post
office and examine its public announcements board, they would
find only the posted regulation. The same would be true were
they to check the relevant Code section. Indeed, even if a
citizen were to become aware of the existence of the Bulletin, he
or she could not confidently rely on it. Section 232.1 expressly
states that soliciting signatures on petitions is prohibited “except
as otherwise authorized by Postal Service regulations,” 39
C.F.R. § 232.1(h)(1), and it is undisputed that the enforcement
policy stated in the Bulletin is not a “Postal Service regulation.”
As a consequence, the Postal Bulletin cannot alone temper
the regulation’s chill of First Amendment rights. That is
particularly so because the regulation makes its violation
punishable by criminal fine and imprisonment. See 39 C.F.R. §
232.1(p)(2). As the Supreme Court has emphasized, the
“severity of criminal sanctions may well cause speakers to
remain silent rather than communicate even arguably unlawful
words, ideas, and images.” Reno v. ACLU, 521 U.S. at 872(emphasis added); see Free Speech Coalition, 535 U.S. at 244.
We will therefore remand this case to the district court with
instructions to determine whether, by its application to Grace
32
sidewalks, § 232.1 abridges “a ‘substantial’ amount of protected
free speech.” Hicks, 539 U.S. at 118 (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973)). If it does, the regulation
is facially invalid on that ground. See supra Part IV.A. Of
course, that issue may be pretermitted if the Postal Service
amends the regulation to exclude such sidewalks from the
prohibition against solicitation. See Hicks, 539 U.S. at 119(holding that “all enforcement” of a facially overbroad statute is
barred “‘until and unless a limiting construction or partial
invalidation so narrows it as to remove the seeming threat or
deterrence to constitutionally protected expression’” (quoting
Broadrick, 413 U.S. at 613)). Because we need go no further to
dispose of this appeal, and because further analysis may be
unnecessary depending upon the outcome of the remand
proceedings, we do not consider the appellants’ other challenges
or the district court’s other rulings.
VI
For the foregoing reasons, the judgment of the district court
is reversed, and the case is remanded for further proceedings
consistent with this opinion.
So ordered.