United States v. Kokinda
Decided on June 27, 1990; 497 US 720


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES

A. Issues Discussed:  1st Amendment (press, speech, association) 

B. Legal Question Presented: 

Is a sidewalk that is entirely contained by Postal Service property and intended only for traffic to and from Postal Service buildings a public forum? If it is a public forum does the United States Postal Service regulation 39 CFR 232.1, which prohibits solicitation on postal premises, violate the First Amendment?

II. CASE SUMMARY:

A. Background:

Marsha B. Kokinda and Kevin E. Pearl (respondents), members of a political advocacy group, set up a table to solicit contributions and print material on political issues. Their table was located on a sidewalk adjacent to a post office. The sidewalk provided access between the parking lot and the post office, and was on Postal Service property.

Respondents were arrested when they refused to leave the premises. The local Federal Magistrate convicted them of solicitation on postal premises. On appeal to the District Court of Maryland, their conviction was affirmed.

The United States Court of Appeals for the Fourth Circuit reversed the conviction. Because the appeals panel was divided a certiorari order was granted by the United States Supreme Court.
B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)

James Alan Sekulow argued the cause for respondents. With him on the briefs was James M. Henderson, Sr.

Deputy Solicitor General Roberts argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Dennis, and Thomas E. Booth.

C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable

Unavailable

III. AMICI CURIAE:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Amicus briefs urging affirmance were filed for the American Civil Liberties Union, et al., by Steven R. Shapiro; the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; for Free Speech Advocates by Thomas Patrick Monaghan; the National Committee of the Libertarian Party, et al., by Frank M. Dunbaugh; the International Society for Krishna Consciousness of California, Inc., by David M. Liberman; Newport News Daily Press, et al., by Alice Neff Luca, Richard P. Holme, Lawrence J. Aldrich, Boisfeuillet Jones, Jr., Alexander Wellford, and David C. Kohler; and for the Project for Public Spaces, Inc., by Andrew J. Ekonomou. No amici curiae briefs were filed on behalf of Petitioner.
 IV. THE SUPREME COURT'S DECISION:

"Although solicitation is a recognized form of speech protected by the First Amendment, the Government may regulate such activity on its property to an extent determined by the nature of the relevant forum… where the property is not a traditional public forum and the Government has not dedicated its property to First Amendment activity, such regulation is examined only for reasonableness… it is not unreasonable for it to prohibit solicitation on the ground that it inherently disrupts business by impeding the normal flow of traffic... The Government has a significant interest in protecting the integrity of the purposes to which it has dedicated its property, that is, facilitating its customers' postal transactions… the regulation does not discriminate on the basis of content or viewpoint…"

Held: The judgment of the court of appeals is reversed. The case was decided with United States v. Belsky and United States v. Bjerke.
Justice Vote: 4 Pro vs. 5 Con

  • O’Connor, S.  Con (Wrote majority opinion)
  • Rehnquist, W. Con (Joined majority opinion) 
  • White, B.   Con (Joined majority opinion) 
  • Scalia, A.  Con (Joined majority opinion) 
  • Kennedy, A.  Con (Wrote concurring opinion)
  • Brennan, W.  Pro (Wrote dissenting opinion)
  • Stevens, J.  Pro (Joined Brennan’s dissent)
  • Marshall, T.  Pro (Joined Brennan’s dissent)
  • Blackmun, H. Pro (Joined Brennan’s dissent in part)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus urging affirmance; the Supreme Court reversed the ruling in a 5-4 vote, giving the ACLU an apparent loss.