In United States v. Kokinda, 497 U.S. 720 (1990), the Supreme Court upheld a federal regulation prohibiting solicitation on post office property, including the sidewalk outside post office buildings. The Court concluded that the protections of the First Amendment were not breeched as the ban on solicitation was reasonable and did not discriminate based on viewpoint.
Democrat volunteers arrested after soliciting contributions outside post office
Two volunteers for the National Democratic Policy Committee, Marsha B. Kokinda and Kevin E. Pearl, set up a table outside the post office in Bowie, Maryland, to solicit contributions and sell materials. They were arrested after refusing to leave the premises and convicted by a magistrate of violating the anti-solicitation regulation.
A federal district court upheld the convictions, reasoning that the postal sidewalk was a nonpublic forum and that the solicitation ban was reasonable. A divided panel of the Fourth Circuit Court of Appeals reversed on First Amendment grounds. The panel majority determined that a postal sidewalk is a traditional public forum and discounted the government’s interests in the solicitation ban.
Supreme Court upholds federal regulation barring solicitations on post office property
On appeal, the Court narrowly sided with the government, 5-4.
“The postal sidewalk at issue does not have the characteristics of public sidewalks traditionally open to expressive activity,” Justice Sandra Day O’Connor wrote for a plurality. Restrictions on expression at nonpublic forums must be reasonable and not discriminate based on viewpoint.
O’Connor opined that the ban was reasonable, noting that some form of solicitation ban had been in place since at least 1958 and that solicitation is “inherently disruptive” of postal service business. Kokinda and Pearl had argued that the ban was unreasonable because the government allowed other forms of speech on post office property. O’Connor countered that solicitation is an especially intrusive form of free speech.
Justice Anthony M. Kennedy concurred, viewing the postal regulation as a time, place, and manner restriction on speech.
Four justices dissented, arguing that postal sidewalk was a type of public forum
Justice William J. Brennan Jr., joined by three other justices, dissented, finding that the postal sidewalk was either a traditional public forum or a limited public forum — not a nonpublic forum. He questioned the plurality’s assertion that solicitation was inherently disruptive of postal business.
“The First Amendment demands that the Postal Service prohibit solicitation only when it actually threatens legitimate government interests,” he wrote. He also questioned why solicitation was treated more harshly than other forms of expression.
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.