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Post Office Site Ban on Political Activities Upheld

Del Gallo v. Parent, 545 F.Supp.2d 162 (D. Mass., Mar. 28, 2008)

During the spring of 2004 and again in 2006 Rinaldo Del Gallo, a candidate for the Massachusetts Governor's Council, solicited signatures to get his name on the ballot from patrons of the Pittsfield Post Office. A post office employee informed Del Gallo that he was not allowed to conduct his activities on post office property due to a federal regulation (39 C.F.R. 232.1(h)(1)), which prohibits soliciting, campaigning, and collecting signatures on postal property. The employee recommended that Del Gallo move his activities to a public sidewalk parallel to the post office sidewalk. He refused to move and was arrested.

Citing the First and Fourteenth Amendments to the U.S. Constitution, Del Gallo sought declaratory and injunctive relief barring the post office and Robert Parent, the postmaster, from enforcing the aforementioned regulation. Parent moved for summary judgment, arguing that the sidewalk in question was a non-public forum as a matter of law, that the regulation prohibiting was a reasonable time, place and manner restriction; and that the regulation was enforced in a viewpoint-neutral manner. Del Gallo contended that the regulation was selectively enforced against him.

After determining that Del Gallo’s signature gathering activities were covered by the regulation, and that the postal sidewalk was not subject to any exemptions to the regulation, the Court addressed the facial validity of the regulation. The Court determined that the sidewalk was a non-public forum, given its layout, functions and proximity to the post office. Armed with this characterization, the Court then applied intermediate scrutiny to analyze the regulation.

The Court noted that even when the government allows some speech in a non-public forum, such as the issue-oriented leaf-letting permitted at the Pittsfield Post Office "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 v. Wash. Educ. Ass'n, --- U.S. ---, 127 S.Ct. 2372, 2381, (2007). In this case, the reasonableness of the restriction seemed clear and was fairly balanced against several important governmental concerns.

The Court found a legitimate concern that the Postal Service might be perceived as tainted by partisan political patronage. Moreover, there was legitimate concern over potential disruption and delay when customers encountered political candidates soliciting signatures. The Court also found that the statute was not enforced in a discriminatory manner against Del Gallo. Finally, the fact that solicitors could easily move to an adjacent public sidewalk showed that an alternative was easily within reach.

The Court denied Del Gallo’s motion for summary judgment and granted the motion for summary judgment of the defendants.



Judge(s): Ponsor, District Judge
Related Categories: Constitutional Law , Government / Politics
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Rinaldo Del Gallo Pro Se

Defendant Lawyer(s) Defendant Law Firm(s)
Karen Febeo Goodwin Procter LLP



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regulations prohibited the solicitation of signatures from in this case, a simple review of attachment a, and the u.s. 504, 512 (1994)). postmaster robert parent and the pittsfield post office, opposing gay marriage, as well as his success in a prior public road and were designed so that patrons could drive from plaintiff's motion for injunctive relief, defendants entryway from the municipal sidewalk." jacobsen v. u.s. office, including adjacent municipal streets and sidewalks. public walkway stretching halfway around the post office. comm'n v. forbes, 523 u.s. 666, 677 (1998) (quoting iskcon, parking lots, or . . . which otherwise impedes or v. comm. for indus. org., 307 u.s. 496, 515 (1939); see also portion of a postal service sidewalk that frames the parking reinstated, 983 f.2d 9, 10-11 (2d cir. 1992) ("longo iv"), had faced in "determining whether or not a given signature rights and gay marriage were responsible for the sudden sidewalk that abuts fenn street.5 a reply to defendants' opposition to his motion for summary regulation, a court must conduct a "fact-intensive balancing 1194, 1197-98 (9th cir. 1987); united states v. bjerke, 796 enter a parking lot that surrounds the post office following removal to this court, plaintiff requested a public walkways if the public is to find its way to the post 232.1(h)(1) to 232.1(e)." conduct on postal property, 70 supp. 65, 70 (d. mass. 1990) ("many pedestrians wholly 444 f.3d 1, 8 (1st cir. 2006) (quoting medeiros v. vincent, immaterial to the legal issues before the court. plaintiff according to hintenach, for political office.") (internal quotation marks and pedestrians who use these stairs (see dkt. no. 49, ricci this circuit must show invidious intent on the part of the summary judgment. notwithstanding plaintiff's objection as north across a second driveway that traverses another in response, plaintiff asked if it would be permissible defendants have a reasonable basis to conclude that the (1st cir. 2005) (internal quotation marks and citations iv. conclusion 63,911, 63,911 (dec. 21, 1977) (calling the proposed surrounding walkway indicate to all who approach that the questions: does mere solicitation of signatures constitute nat'l amusements, inc. v. town of dedham, 43 f.3d 731, 737 j., dissenting), and justice kennedy observed that "the wide lie in the history of the regulations, however, the current task of determining whether . . . a given and immediately adjoining the post office entry. citing the virtually always connect, at some point or points, with advisory bd. v. pinette, 515 u.s. 753, 761 (1995) (citations injunctive relief. 45 signature solicitation disturbs and impedes jonathan levine, the publisher of the pittsfield gazette. undisputed facts of record would require a jury to conclude street at issue in flower v. united states, 407 u.s. 197 the postal facility, curley informed plaintiff that postal filed an unopposed motion for judgment on the pleadings, changes, 46 fed. reg. 34,329, 34,330 (july 1, 1981). statute against persons taking the opposite view. id. at this case. postmasters therefore would be hard b. the pittsfield post office. layout of the area clearly communicates to reasonable people 16 monterey county, for example, the walkway in question was candidate soliciting signatures, both took it for granted south for a few steps, then ascend the curb of the southern as a result of plaintiff's arrest, ricci has informed two defendants here, is permissible, provided that it "is table is approximately seven feet wide and is been loathe to infer intent from mere effect," mcguire, 386 (del gallo aff. 2-3.) 6 beset by requests from eager politicians competing while this may be so, "a 1992 postal simply because it is owned or controlled by the government." lobbying, solicitation, and political canvassing. the the reasonableness of the restriction imposed upon parking lots, porches, patios, and steps. neutral so long as it is justified without reference to the that separates it from the municipal sidewalk that runs according to levine, individuals found guilty of violating 232.1 are subject to oriented signature solicitation on postal property, public" who "might not realize that they have entered onto 11 have applied a postal regulation to prohibit plaintiff from was unaware "of the postal service regulation prohibiting the government's purpose in constructing the forum however, the fact that speech is protected "merely begins [the] inquiry." cornelius v. naacp legal def. & n.c., inc., 487 u.s. 781, 796 (1988) ("[w]ithout election to public office because the campaigning was not subject to the exemption set forth in 232.1(a) solicitation, postmasters . . . had the difficult marriage on the ballot. 38 of certiorari for plaintiff-appellant, longo v. u.s. postal the sidewalk at issue is a traditional public forum for the postal service later "mov[ed] the provision interest" and leaves "open ample alternative channels for the content of his speech. as the supreme court has noted, governing conduct on postal property in the federal common sense render it indistinguishable from the public solicit signatures freely, even though this solicitation for his political views. decl. 9.)2 would be arrested again if he attempted to gather signatures 15 grass on the west and the post office parking lot on the sidewalk runs parallel to the city sidewalk abutting fenn (1972) (per curiam)). see also, united states v. grace, 461 it is consistent with the [government's] legitimate interest post office since 2004. thus, this case is substantially in c.f.r. 232.1(p)(2) (2007). that the pittsfield postal sidewalk was a public forum -- demarcated from the public walkway, could not be described signature solicitation involved campaigning for campaigning within it is reasonable. accepting the evidence judgment as a matter of law based on defendants' selective 21 which the forum typically is put, the particular risks inferences therefrom, in the light most favorable to the 1 city walkway lies literally a few steps away from the postal u.s. 114, 129 (1981); see also capitol square review & content of the regulated speech." ward v. rock against obstructs the usual use of entrances, foyers, moreover, the concern about the potential disruption and see conduct on postal property, 70 fed. reg. 72,078, marquis of queensberry rules." r.a.v. v. city of st. paul, justice of the sjc. the complaint named parent, the pittsfield post office in the eighteen years preceding eloquently in the longo case: fed. reg. 72,078, 72,078 (dec. 1, 2005). that provision now for him to solicit signatures while standing on the postal postal sidewalk are a "physical feature" that signify the opposition to this motion and filed their own motion for opp'n to pl.'s mot. for summ. j. 2.) he notes the finding of virtually the same characteristics as the sidewalk here. in in connection with his campaign. (dkt. no. 48, melle aff. omitted). "separated from the municipal sidewalks by the post office id. at 47 (analyzing defendant's action first, "as actual are "subject to intermediate scrutiny." asociacion de on february 21, 2007, plaintiff submitted an affidavit finally, it bears noting that in nearly identical office. i would tell such individuals that they . . were allowed to gather signatures at the (1st cir. 1995) (quoting consol. edison co. v. public serv. u.s. 171, 177-80 (1983)(discussing greer). united states district court 39 c.f.r. 232.1(h)(1) (2007) (emphasis added). v. ) c.a. no. 06-30063-map well back from public thoroughfares."); belsky, 799 f.2d at provides: precise nature is necessary.") (citation omitted). plaintiff has also filed a motion for a "temporary amendment. see burson v. freeman, 504 u.s. 191, 196 (1992) identification of the forum, the restriction on solicitation it "denies access to a speaker solely to suppress the point of inconsistent with the applicable regulation, the court must that they are moving into a "special type of enclave." could conduct such activity on the sidewalk then 232.1(h)(1) would not apply and plaintiff could delay involved when a customer, in the middle of a postal daily in traveling to the waterfront."). neutral regulation here would be subject only to out issue-oriented, non-political leaflets and request that in response, defendants have filed declarations from that "an action need not be the most reasonable decision of "activities . . . on the post office sidewalk" (cooke decl. . because of the postal service's need to passage of individuals engaged in postal business"). the question of the discriminatory enforcement of this valid insufficient, by itself, to sustain as-applied challenge). customers' use of the postal facilities and, thus, legally cognizable distinction can be wrought between this 31 iri i for the proposition that, prior to 1998, postal i would, on occasion, receive requests from right angle north before stopping at a second municipal at 727 (plurality opinion), it bears noting that four other the main entrance of the building faces fenn street attachment a to this decision is a diagram of the 48 questions, federal courts must consider nonconstitutional restraint that, "`prior to reaching any constitutional record before the court that the decision to enforce the 505 u.s. 672, 678 (1992); see also yeo v. town of lexington, for time and space in the most strategic locations "`prohibition of public discussion of an entire topic.'" see initiative & referendum inst. v. u.s. postal serv., 297 42 41 sidewalk at issue here is as a non-public forum. "a the effect that he was unaware that the ban on political sidewalks are public passageways, the interior omitted). the absence of a similar directive permitting u.s. 89, 99 (1981)). application of this principle requires prohibited."). (see dkt. no. 7, ex. d, parent decl., ex. 1.) this diagram of signatures in a political campaign, is no more intrusive disorderly conduct, or conduct which . . . impedes on march 27, 2006, plaintiff and a companion went to solicitation has been consistent and longstanding. its property, 70 fed. reg. at 72,078 (noting that "members of place a candidate's name on an election ballot." (hintenach while plaintiff maintains that this statement prior to 2004 out of official laxity born of ignorance of runs in front of the bowie post office and postal the distinctions drawn are viewpoint neutral and reasonable sidewalk" but serves "as a thoroughfare for foot traffic & exploitation, inc. v. faneuil hall marketplace, inc., 745 f. the revenue it generates from its operations. . . (d.d.c. 2000).13 most urgent application to speech uttered during a campaign completely cut off from the fenn street sidewalk by the petition, poll, or survey, and direct postal summary judgment implicitly opposes the request for restriction, and (3) the undisputed record confirms that and therefore barred by 232.1(h)(1). 5 131 f.3d 241, 255 (1st cir. 1997) (torruella, c.j., the exterior of the pittsfield post office, correcting the ) f.3d 1, 6 (1st cir. 1997) (citation omitted). since the omitted). to withhold such deference here, this court would pending motions and instructed the parties to file (dkt. no. 36, ex. 4, postal bulletin 22119 (jan. 8, 2004).) designated public forum, "it would be free to decide in good 431 f.3d 25, 29 (1st cir. 2005)). "when deciding upon exiting their vehicles, patrons continue traveling interest and left open ample alternate avenues for postal property from municipal or other public property, and 1), and curley's "duties do not typically include dealing few steps away from the postal sidewalk, in the form of the beside willis street. the east end of the l extends at a when it reorganized the postal service in 1970. . . 6 u.s. 171, 180 (1983);17 the postal service is not supported by tax government's explicit expressions regarding intent, as well sidewalk,"15 stood is designed specifically to facilitate access by postal mayor, state senator and governor's council signatures for his campaign from a spot on the southern in conclusion, the restrictions on political have been nothing that compelled postmasters to make the its products and services, customers are vitally upon "public access," kinton, 284 f.3d at 22. 390 f.3d at 77 (citation omitted). hence, even if the chertoff, 484 f.3d 139, 145 (1st cir. 2007) (citations purposes (including, but not limited to, the concerning the topography of the pittsfield post office. walkway services postal patrons entering the building and years, i have seen numerous potential candidates (emphasis omitted), rev'd, 953 f.2d 790, 792 (2d cir. 1992) devoted to the constitutionality of 232.1(h)(1), which, as u.s. postal serv., 417 f.3d 1299 (d.c. cir. 2005) ("iri now turn to the question of whether the postal sidewalk at according to plaintiff, defendants' selective plaintiff's arrest. but inconsistent enforcement of a regulation, the responsible officials have applied it summary judgment on this basis. the court's allowance of would tend to interfere in a significant way with the uses educacion privada de p.r., inc. v. garcia-padilla, 490 f.3d 46 the postal service has promulgated regulations 17 pressed to avoid the sort of embroilment in to patrons of the health facility objected that the statute first, it is well-settled that "[w]hen congress has rinaldo del gallo, iii ) an ideal locale for citizens to meet their neighbors for pittsfield post office, and pittsfield police chief anthony a traditional public forum is property "which by long 22 held in our constitutional jurisprudence." id. at 63-64 building's main entrance. (dkt. no. 51, curley aff. 3.) each motion separately, drawing inferences against each street and leads to the front doors of the post office. the solicitation. particular regulation impermissibly infringes upon free prohibited. time, create a new public forum for the views of the customer complaints" concerning "signature-gathering the rationale set forth in longo supports the depends "on the factual evidence provided as to how the prohibiting blocking ingress and egress from post offices from first amendment activities both as a matter of fact and law. 22 solicitation of "alms and contributions" upon a postal was denied on september 27, 2007. defendants have enforced the regulation in a manner that is during a second run for governor's council in 2006, that it is not a thoroughfare for passersby intent on other democratic central comm. v. u.s. postal serv., 812 f.2d itself.6 industry." 284 f.3d at 22. court. see brief for respondents, kokinda, 497 u.s. 720 parent refused plaintiff's request and advised him that he aff. 8), and prior to plaintiff's arrest, curley contends plaintiff's views or expressions. therefore, even if the post office, so long as these areas were indistinguishable states v. kokinda, 497 u.s. 720 (1990). council of carpenters v. kinton, 284 f.3d 9, 20 (1st cir. southern segment and provide a connection between the located at 212 fenn street in downtown pittsfield, and deny plaintiff's motion to permit the filing of a late not every sidewalk, however, is a traditional public scrutiny." ark. educ. television comm'n v. forbes, 523 u.s. by proponents of various ballot initiatives. see initiative as previously noted, the court has designated this of adequate, alternative avenues for expression. see iri of law." fed. r. civ. p. 56(c). "in this context, michael a. ponsor alternatively, plaintiff contends that, even if the sidewalk c. facts. enforcement agencies to ensure that . . . [postal] (1970)(codified at 39 u.s.c. 201 et seq.), establishing department. b. the facial validity of the regulation. the post office sidewalk. each of its segments connects to a municipal sidewalk that by justice kennedy holding that, regardless of the petition to place the name of a candidate disfavoring gay while plaintiff contends that his views on fathers' based on the angle of the parking spots depicted in the 2004. in other words, the sidewalk was not a designated university's sporadic enforcement of facially neutral policy corrected diagram as attachment a and appended it to this ballot, the postal service's current interpretation of 18 were not "physically distinguishable" from the public facilities themselves.") with citizens to end animal suffering interfere with the uses to which the government has both structures are freestanding buildings, runs in front of the parking lot, and is parallel to from the sidewalk owned by the united states postal service bernstine, 351 f.3d 934, 944 (9th cir. 2003) (finding 47 formal opposition to these motions, though their motion for 2 666, 677 (1998) (citations omitted). consistently and without discrimination as to person or property."); see also utah gospel mission v. salt lake city political activity. the second circuit addressed this issue the pittsfield post office is an l-shaped building is lawfully dedicated." iskcon, 505 u.s. 672, 688 (1992) noted above, these two segments also run perpendicular to signature solicitation to support candidates seeking to get 1489 ("the post offices in question were all set back from the 9 that defendants applied it to him in a discriminatory the desire to set proper boundaries around partisan 33 ex. a.) 232.6(h)(1),1 municipal sidewalk abutting fenn street. (id. 2-3; see explication of the legal analysis will require some time. subsequently reversed, see initiative & referendum inst. v. the reasonableness of a regulation is often weighed in light in question is distinguishable from the public walkways and were permitted to collect signatures from that location on at a. the applicability of 232.1(h)(1). range of activities" permitted "on this postal sidewalk" gave ) kinton, 284 f.3d at 20 ("some spaces -- such as public independent entity within the federal government's executive bay transp. auth., 390 f.3d 65, 90 (1st cir. 2004) (noting prohibiting the display on bulletin boards" of anything for other purposes. to pro-abortion advocates while strictly enforcing the highest quality customer service possible by racism, 491 u.s. 781, 791 (1989) (internal quotation marks prohibitions set forth in 232.1(h) do not apply to portion of city sidewalk and leads back to fenn street. conclude, in contrast to all the authorities cited above, 19 the same limitations as that governing a traditional public f.3d at 63 (citations omitted), the first circuit has (citation omitted). original). demarcation in the sidewalk . . . distinguishes the federal 39 c.f.r. 232.1(a)(ii) (2007); see also conduct on postal question indistinguishable from public walkways so as to three postal workers that offer somewhat inconsistent to an order directing defendants to permit him to solicit in light of the purpose served by the forum." davenport v. and street. at some point, pittsfield police officers arrived 13 did not prohibit campaigning on postal regulation, and the postal sidewalk on which he solicited horn decl., ex. a.)12 the test of reasonableness. id. at 727. carries significant weight. see, e.g., kokinda, 497 u.s. at municipality. see id. at 835-37 (distinguishing the public belongs to the post office and is used for no electioneering on postal property (curley aff. 1).9 pro-abortion activists violated the statute without uninterested in the marketplace's offerings cross its lanes 64 (citation omitted). admittedly, the ricci affidavit first amendment on its face and, if not, whether the viewpoint. for office gathering nomination paper signatures. "intermediate scrutiny." this analysis can lead only to the u.s. postal serv., 761 f. supp. 220, 223 (d. conn. 1991) plaintiff's motions for miscellaneous relief runs perpendicular to it. no reasonable jury could find according to plaintiff, even if 232.1(h)(1) have to conclude that the postal service's construction of kokinda, 497 u.s. at 726 (plurality opinion). regulation of ronald ricci, a supervisor of customer service at the 15 while both cooke and curley have worked at the 1.) postal service amended 232.1(h)(1) by adding prohibitions candidates. first circuit equates limited public fora with non-public distinguishable from adjacent municipal or other regulations are enforced." 39 c.f.r. 232.1(q)(2) (2007). government has intentionally opened for expressive conduct image of the site obtained through google. 13 20 also dkt. no. 50, cooke aff. 3-4.) when plaintiff initiatives" as well)).8 defendants observe in their memo that neither the sidewalk runs along the edge of the highway, other purpose. 12 to the agency's interpretation of the regulations that it elections by determining which candidates will appear on the absence of a "clear-cut test . . . for determining when a the hallmark of a viewpoint based distinction is that six-foot buffer zone protecting persons within an eighteen- 24,346, 24,347 (nov. 16, 1972). the postal service added governing law.'" burke v. town of walpole, 405 f.3d 66, 75 in the end, however, the result will be driven by the only 7 10 solicitation activities "are generally disruptive to postal although levine does not expressly state that he (dkt. no. 49, ricci decl. 2.) apparently, during his that a reasonable jury could resolve the point in favor of signatures on postal property in light of the iri iii debts, soliciting and vending for commercial u.s.788, 799-800 (1985)).22 (dkt. no. 52, levine decl. 1 (noting the presence of between willis street and fenn street." (dkt. no. 39, . . . sidewalks." 39 c.f.r. 232.1(a)(ii). as previously entering and exiting the postal parking lot off fenn street. motorists described above. alternatively, the customer signatures from inside the post office, and defendants do not the most outspoken society on earth." this case probes the constitution, plaintiff seeks declaratory and injunctive the governmental interest here, also noted by defendants, is property . . . where they can sign the petition, touch municipal walkways cannot signify any blurring of the sidewalks, which except at two points lie at a significant 1978); see also conduct on postal property, 42 fed. reg. 3 efforts to obtain signatures fell squarely within as noted above, when the postal service proposed the corridors, offices, elevators, stairways, and service sidewalk, as a shortcut to avoid vehicular traffic in assessing whether particular government property the sidewalk on which [respondents] set up their at 22 (citation omitted); (2) "whether expressive activity fenn street sidewalk, a pedestrian could follow the path of distinguishable from any public walkway, since feature, such as sidewalks perpendicular to the postal service property, 62 fed. reg. 61,481, 61,481 (nov. 18, facilitated "the speech activities of favored speakers . . . faith to close the forum at any time." id. (emphasis in indisputably a form of speech protected by the first 12 on postal property refers to the actual collection of the "[e]ven a regulation that does not choose sides or otherwise sidewalks along the street frontage of postal as this summary demonstrates, the cases addressing forum as a matter of law, (2) the postal regulation some of the signatures necessary to get his name on the lot on three sides. this southern portion of the postal regulation arose from bias against the content of distinguishable from such sidewalks. soliciting alms and contributions, campaigning for on the postal sidewalk, defendants concede that individuals cross-motions for summary judgment, the court must consider entire postal sidewalk is indisputably a "feeder across a parking lot. to access it by automobile, motorists kokinda: plaintiff[]." id. favor of the regulation banning political campaigning is the to balance the government's interest in restricting the to the postal service, the purpose of this amendment was "to as a thoroughfare." (dkt. no. 40, ex. 1, horn decl. 2.) the following day, the court heard argument on the no law abridging the freedom of speech." u.s. const. amend. harassed postal patrons (see dkt. no. 50, cooke aff. 6), are enforcement allegations. in one such affidavit, defendants occasionally use the clearly distinguishable postal sidewalk property, 42 fed. reg. 63,911, 63,911 (dec. 21, 1977). public forum, or if so designated at some time, the suggests that, in enforcing the regulation, defendants on april 24, 2007, defendants tendered their or obtaining the services provided on property, is 36 these cases, as in this case, the decision with regard to property for the purpose of obtaining signatures. (del gallo with cranbury road and depart the facility through another sidewalks traditionally open to expressive activity," 497 u.s. as "virtually identical" to the layout of the post office in sidewalk to enter the post office. the sidewalk 497 u.s. 720, 723 (1990) (plurality opinion) (citation decision. (id. at 2.) after conferring with counsel, on june 28, 1998, the 23 the parking lot to the building on a connecting walkway."); (5) the extent to which the property's "primary use" depends driveway that traverses the public sidewalk and "public passageway" or "thoroughfare," united states v. first amendment lawsuit. in support of this charge, he has to summarize, the solicitation of signatures to support it is located on a major highway, route 197. a hintenach, the campaigning prohibition "covers all aspects i. introduction the nature of the forum is pivotal. if this court were to errand, encounters a political candidate soliciting communication of the information." bl(a)ck tea society v. 2 27 under arrest. (del gallo aff. 1; curley decl. 5.) 9 contested space under the overhang is divided by pillars and wash. educ. ass'n, 127 s.ct. 2372, 2381 (2007) (citing produced a plurality opinion with four justices finding that authority, courts ordinarily afford considerable deference supporting proof." (dkt. no. 45, pl.'s surreply to gov't's at 23. ultimately, a speech restriction is reasonable "when property, 70 fed. reg. 72,078, 72,078 (dec. 1, 2005). appended to this memorandum as attachments b-e. would be required to conclude either that the sidewalk in argument could be made that a request to step off postal were not prohibited, the postal service would be summary judgment in favor of the named defendants is intended streets, sidewalks, and parks -- are presumptively public (emphasizing that no single factor is "dispositive") the property," int'l society for krishna consciousness, (2d cir. 1992) (citations omitted). dollars. instead, the postal service is funded by forum. as will be seen below, the undisputed facts of judgment. special place that first amendment rights have traditionally plaintiff contends that this assertion is "devoid of (1985). "[i]f there is a conflict, it is to be judged by run perpendicular to and connect with the city sidewalk. as individuals to conduct petitioning or campaigning expression. the "campaigning" ban set forth in 232.1(h)(1) is aimed at inhibiting the expressive activities of anti- "collecting," see 39 c.f.r. 232.1(h)(1) (2006). according justices perceived no grounds upon which to distinguish it test that takes into account such factors as the uses to customers enter the building via an access road that connects (2007) ("the blocking of entrances, driveways, walks, loading it cannot be denied that the sidewalks at issue in the errors plaintiff had identified. (see dkt. no. 40, ex. 1, non-public forum." new eng. reg'l council of carpenters v. to fight freestyle, while requiring the other to follow surveys (except as otherwise authorized by postal cornelius v. naacp legal def. & educ. fund, inc., 473 plaintiff's argument regarding the diminished convenience of postal patrons. yet, solicitation of "the first amendment does not guarantee access to property activities as a public forum, courts must consider the [and] campaigning for a referendum or ballot initiative.'" designate a place not traditionally open for speech 14 similarly, in longo iv, the court characterized the omitted). unlike a content-based speech restriction, a 332 f. supp. 2d 376, 390 (d. mass. 2004) (citing perry educ. public and passing out informational leaflets, in sum, plaintiff's solicitation of signatures was accord with kinton, where the property in question was being polls, or surveys should factors recognized as significant include: (1) "the 25 1, 15 (1st cir. 2007) (citation omitted). under this test, bulletin expressly permitted `issue-oriented petitioning issue is "physically distinguishable from adjacent municipal within the class to which a designated public forum is made 44 interior postal walkways. while the main noted, when the postal service amended 232.1(a) in 2005, enforcement of the postal regulation reflects bias against surveys" and "impeding ingress to or egress from post exception of the fourth circuit in kokinda," (dkt. no. 36, on my trips to the pittsfield post office over the (2002), a plaintiff alleging viewpoint discrimination in errands." id. (dkt. no. 36, ex. 2, hintenach decl. 4, 6.) auth., 390 f.3d 65, 76 (1st cir. 2004) (quoting cornelius v. pro se plaintiff rinaldo del gallo, iii, is from time view he espouses." cornelius, 473 u.s. at 806. non-public forum, and the regulation banning political although courts assessing equal protection claims "have contend that this amendment came in response to "widespread sidewalks that are easily distinguishable from the 10 judgment for defendants on all counts. this case may now be 30 service. however, defendants have not moved to dismiss or for citations omitted; first and third alterations in original). colorado, 530 u.s. 703, 723 (2000) ("regulation of the candidate-oriented petitioning is additional evidence of a first amendment speech activities. non-moving party. teragram corp. v. marketwatch.com, inc., on the merits. on november 6, 2006, police chief riello constitutes "campaigning for election to any public office" standard is not a particularly high hurdle," ridley v. mass. located on postal service property. the sidewalk 1998. initiative & referendum inst. v. u.s. postal serv., 116 access road. as such, the sidewalk area where plaintiffs officers denied plaintiff's request. (id.) the first amendment commands that congress "shall make access to it for expressive conduct, the supreme court has although some persons may succumb to the temptation to use signing of petitions, polls, and surveys somewhere other fenn street could use these stairs, along with the postal prohibition did not cover signature solicitation passed constitutional muster, he would still be entitled to would be allowed to engage in first amendment activity, otherwise. the fact that the postal sidewalks inevitably government previously intended to create and maintain a thus might not realize that they have entered onto postal forum. in greer v. spock, 424 u.s. 828 (1976), for example, readily apparent "enclave," where "a clear line of action should be brought against the united states postal comm'n, 447 u.s. 530, 537 (1980)); see also hill v. solicitation the flow of . . . information and advocacy campaign. (dkt. no. 49, ricci aff. 3, 5.) agreed at oral argument fairly depicts the area. attachments trigger the exemption set forth at 232.1(h)? injunction," and a motion to permit the filing of a late f.2d 643, 648-50 (3rd cir. 1986); united states v. belsky, their signatures. this argument, even so limited, is property to sign a petition disfavoring gay marriage would las vegas, 333 f.3d 1092, 1099 (9th cir. 2003) (noting the "[g]overnment regulation of expressive activity is content context of a highly local dispute, in the light of authority poll, or survey, if they so desire. content-neutral regulation "need not be the least customer access to the post office and is not used as a biography of the first amendment, observes that "[o]urs is speakers on the basis of their subject matter, so long as prohibition. property falling within the property lines of the which the court allowed on november 22, 2006. or unduly beleaguer[ed] only disfavored speakers." id. at kinton, 284 f.3d 9, 20 (1st cir. 2002).16 sign petitions, polls, and the like. political campaigning sidewalk to enter the west end of the parking area. the anthony lewis, in the first line of the introduction to street, a pedestrian could turn east onto the city sidewalk plaintiff met postmaster parent and asked if he could gather speech in a non-public forum, on the other hand, faces only the city street, park in the postal parking lot, and walk from the signature solicitation ban gave rise to a lawsuit aff'd 425 f.3d 1249 (10th cir. 2005). of "campaigning" is neither plainly erroneous nor she is unaware of any other political candidate who has used turn south off fenn street across a portion of the city 49 232.1(h)(1)'s broad electioneering ban. see petition for writ 5 on the ballot is reasonably construed by defendants as therefore does not fall into the exception set forth in 39 from the postal service sidewalk. (id.; see also dkt. no. offices." see 39 c.f.r. 232.1(h)(1) (1999).3 relief barring defendants from persisting with this disturbs the general public in transacting business photographs appended as attachments b-e, reveals that the circumstances. riello as defendants.10 to determine the reasonableness of a particular general thoroughfare." (parent decl. 3.) regulatory provision. a designated public forum is property that the from public walkways, even if they in fact belonged to the than other forms of signature solicitation . . . .") the description of the background of this case and the ("longo ii"), vacated, 506 u.s. 802 (1992) ("longo iii"), issues raised by the cross-motions for summary judgment 799 f.2d 1485, 1487, 1489 (11th cir. 1986); paff v. in that case were office seekers. omitted).19 spots, then drive east for a short distance before turning the evolving regulation. having now been made aware of the circuit court decisions cited by defendants possess who attempted to solicit monetary contributions from a prohibiting solicitations related to a political campaign on set back approximately 75 feet from the nearest thoroughfare, his magnificent book, freedom for the speech we hate: a on may 15, 2007, plaintiff filed two briefs, each other postal employees effectuated plaintiff's arrest, is finding of a first amendment violation. desyllas v. customers and employees to and from post offices." conduct on paff, 204 f.3d at 433 ("the east brunswick postal building is such sidewalks that are not physically the iri courts had no occasion to consider the the court upheld the convictions of two political activists decl. 8), it is undisputed that any pedestrian traveling partisan politics that congress tries to prevent of political activity, including soliciting signatures to metal grill partitions that extend to the end of the federal public sidewalks, and any paved areas adjacent to than on postal service premises." conduct on postal "campaigning" tine of 232.1(h)(1), as none of the plaintiffs the predecessor to this provision, 39 c.f.r. that they could not gather signatures; the circuit, construing 232.1(h)(1) in the context of a 37 32 inc. v. lee, 505 u.s. 672, 699 (1992) ("iskcon") (kennedy, tradition or explicit designation to the public for styled as "mr. del gallo's brief in reply to defendant's used "only for purposes related to the commercial fishing proposed admission 2-3.) as a shortcut (if indeed this occurs) cannot as a matter of futile effort to completely prohibit signature solicitation distance from the postal walks, set off by a boundary of gov't's opp'n to pl.'s mot. for summ. j. 2), it is clear that campaigning within this non-public forum are not fora, and in most cases no particularized inquiry into their it is so ordered. [t]he bowie post office is a freestanding 28 distinct postal/public boundary; postal sidewalks must evidence suggesting that police were "turning a blind eye" id. at 146 (quoting thomas jefferson univ. v. shalala, 512 the 1998 amendment was intended to "minimize the disruption of arise against the same legal backdrop, the discussion below james curley, a customer service supervisor at the if campaigning for public office on postal property of signatures by candidates as "campaigning," there would plaintiff opposes defendants' motion and has filed his signatures for political candidates, stands no more than a `genuine' means that the evidence about the fact is such postal property." if the postal sidewalk in question here to access the main entrance of the post office from the question was never expressly designated as a public forum, including political campaigning, on sidewalks adjoining the in addition to demonstrating "a pattern of unlawful a. the regulatory scheme. a post office parking lot is contiguous to the ii. background purposes unrelated to content of the regulated speech" they `that might affect the outcome of the suit under the manner. in 1998 was motivated, in part, by difficulties postmasters 172 (1st cir. 2006) (quoting gulf oil co. v. bernard, 452 portion of the postal service sidewalk just outside the decision. no dispute now exists as to its general accuracy. the lion's share of the briefing in this case has been submitted earlier. (see dkt. no. 36, ex. 1, parent decl., 39 c.f.r. 232.1(e) (2007). layout of the post office where the plaintiff was arrested occasions. i have seen candidates for offices request for an admission. defendants have not filed any leads to the post office's front doors. perimeter sidewalks ("feeder" sidewalks), having decided that the postal service's construction has applied it unconstitutionally by enforcing it against of the property: in 1981, the postal service re-designated 232.6 as road. a municipal sidewalk abuts the public road, sidewalk substantially identical to the one in this case, however, where regulations are "intended to serve compare chi. acorn v. metro. pier & exposition auth., solicit signatures. postal sidewalk does not serve as a "thoroughfare." indeed, the regulation in question was not consistently enforced walkway is not. judgment (dkt. no. 31) is hereby denied. defendants' motion record confirm that this activity was permitted sporadically postal reorganization act, pub. l. 91-375, 84 stat. 719 and citations omitted). entitle him to collect signatures on postal property. patrons must use this walkway to enter the building. 16 significance of the governmental interest here has some memorandum and order regarding by a potential candidate for public office is fundamentally 14 obliged to apply strict scrutiny to the regulation here. . moreover, on several occasions the supreme court 983 f.2d at 11.21 such as public streets and park" -- then the court would be ideological adversaries. as noted, the only evidence constituted viewpoint-based discrimination, because it was facially neutral regulation is not sufficient to justify a virtually dispositive of the outcome here. in that case, sanction, the court upheld the law due to the lack of any "`plainly erroneous or inconsistent with the regulation.'" pursuant to 39 c.f.r. 232.1(q)(2), "local postmasters eastern and western segments run perpendicular to the n.4 (1st cir. 2004) (citations omitted). constitutes evidence that the campaigning prohibition set conclusion that the bowie postal sidewalk lacked "the "numerous signature gatherers for ballot question narrowly tailored to serve a significant governmental here did not offend the first amendment, since application for the reasons set forth below, the court will deny defs.' consolidated mem. 9-11 (citing monterey county be tainted by partisan political patronage is legitimate. while the four-justice plurality found that the bowie possible, such as the postal walkway involved in "the essence of a viewpoint discrimination claim is public forum." id. at 737 (kennedy, j., concurring). kokinda, 497 u.s. 720, 727 (1990) (plurality opinion);18 "designed to influence [an] election." conduct on postal bible fellowship, inc. v. me. sch. admin. dist. no. 5, 941 convey disapproval of a particular message" can violate the or that, if ever so designated, the forum was closed by . . . may . . . enter into agreements with state and local appearance of partisan endorsement or preference." conduct than a request to step off postal property to sign a later described as follows: own motion for summary judgment. according to plaintiff, that are open to the public, including internal b-e are photographs of the same. attachment f is a satellite noted, bars political campaigning of any kind on postal generally available, its action is subject to strict that the western driveway serves as an entrance and the difficult distinction between political and general 72,078 (dec. 1, 2005) (defining "feeder sidewalks" as could provide relevant information about the that leads to the building's front doors. while one postal office plot not occupied by the post office building this time by replacing the word "soliciting" with pittsfield post office. not one of them was told practice speaks louder than words"). election to any public office, collecting private the massachusetts governor's council, attempted to obtain against "soliciting signatures on petitions, polls, and (id.)4 march 28, 2008 prohibiting the display on bulletin boards" of anything customer access to the post office building and is not used foot radius of a health care facility providing abortion in ruling on a motion for summary judgment, a district generate its operating revenue through the sale of other types of exterior postal service property case and kokinda. signatures on postal property." 116 f. supp. 2d 65, 68 eastern driveway is the exit. the remainder of this regulatory scheme is in 1970, when congress passed the accounts of the history of signature solicitation at the service had previously submitted in opposing his motion for sidewalks leading from a postal parking lot to the concurring) (explaining that "the state may, from time to 39) are hereby denied. the clerk is ordered to enter forum" as a sub-category of the designated public forum, the 40 postal sidewalk lacked "the characteristics of public concedes that the campaigning prohibition found in the pittsfield post office, and the two began collecting permitted at the pittsfield post office "it can exclude been used for purposes of assembly, communicating thoughts for injunctive relief. plaintiff also filed a motion to register. pursuant to 39 c.f.r. 232.1(h)(1), discriminatory animus behind the regulation's inconsistent the postal service sidewalk to solicit signatures (cooke would likely cease.") (citations omitted). during the spring of 2004, plaintiff, a candidate for postal sidewalks, with the exception of the fourth circuit's submitted a diagram of the exterior of the pittsfield post viewpoint-neutral, in the sense that it is not aimed at the plaintiff has also submitted a declaration from the other hand, ronald ricci states that, the evidence supporting a finding of a designated sidewalk, within easy eye- and ear-shot of the regulated offer no more substantial interference to postal traffic fairfax county, 196 f.3d 186, 191 (4th cir. 1999) (en banc) a political candidate's placement on the ballot for election 68 (d.d.c. 2000) ("iri i"). after the district court office." (hintenach decl. 10.) obviously, if the postal that the government has `intentionally tilt[ed] the playing longstanding policy proscribing this activity. the enforcement of a massachusetts statute establishing a employee contends that postal patrons are the only 4 solicitation extended to the postal service sidewalk until proper party. postal business and to provide unimpeded ingress and egress of postal customer service operations in washington, d.c., curley's instruction. when plaintiff continued to seek political campaigning, falling within the applicable nature of any non-public forum as it sees fit. see ridley, trust for the use of the public and, time out of mind, have plaintiff's motion for a temporary injunction (dkt. no. 38), force. one prominent argument offered by the government in same diagram of the pittsfield post office that they had postmaster nor the post office are proper defendants and this conduct on postal property, 70 fed. reg. at 72,078. content-based regulations.") (citation omitted). such as school committee, district attorney, a more powerful argument regarding the significance of 65. subject matter of messages, though not as obnoxious as (o'connor, j., concurring) (internal quotation marks and services. anti-abortion activists wishing to offer leaflets motion for summary judgment," and on may 31, 2007, he filed defendants' motion for summary judgment (dkt. no. 35), deny 35 4 offered the affidavit of jonathan melle, a former candidate prior to 2004, no reasonable jury could conclude from the permitting not only the solicitation but the collecting of signatures on the postal sidewalk at issue. plaintiff service did not have a policy of construing the solicitation educ. fund, inc., 473 u.s. 788, 799 (1985). it is clear that tradition or by government fiat ha[s] been devoted to of the regulation protected a significant government the united states postal service ("postal service") as an in the light most favorable to plaintiff and assuming that signatures and not to communication that promotes the activity on the property of the pittsfield post ("longo i") ("political campaigning, i.e., the solicitation 20 this phase of regulatory evolution meant that citizens finding that plaintiff had not shown a likelihood of success some special type of enclave," united states v. grace, 461 designation was reasonably withdrawn as of 2004. plaintiff-friendly in the first amendment context, given the of any kind, however, is still barred. wished to collect signatures was a traditional public forum. supplemental affidavits addressing plaintiff's selective citations omitted); riley v. nat'l fed'n of the blind of 24 c.f.r. 232.1(a). that provision now provides that the providing customers easy access to its products i have spoken with such candidates on many impeded the flow of pedestrian traffic into the summary judgment is proper when the record reveals in that case was reasonable. 479 u.s. at 737-39. despite court must now consider whether 232.1(h)(1) violates the property. the happenstance that pedestrians may pittsfield post office, observed plaintiff seeking entrance of the pittsfield post office is beyond debate. north. as defendants point out, the four-justice plurality's forbidden "campaigning for election to any public office" service property." (id.) since learning of this regulation signature solicitation and political campaigning on postal on april 27, 2007, plaintiff filed the pending motion post office. (see dkt. no. 49, exs. 1-4.) these have been acknowledges that prevailing on this theory would not & referendum inst. v. u.s. postal serv., 116 f. supp. 2d 65, 1997) (noting the experience of the postal service that cranbury road, which has no adjoining sidewalk. postal that is, an area "open to the public for expressive activity postal parking lot and was accompanied by a declaration from has promulgated under that authority." royal siam corp. v. currently are permitted to come on postal property to pass signatures from the postal sidewalk, officers placed him sidewalk if he directed persons willing to provide their iri iii also prompted the postal service to amend 39 southern segment and the fenn street sidewalk. building, with its own sidewalk and parking lot. allowed the postal service's motion for summary judgment, first amendment, since constitutional scrutiny extends to outside the post office. prior to his arrest, plaintiff contends that will apply to both motions. fora. see ridley v. mass. bay transp. auth., 390 f.3d 65, 76 unreasonable. the regulation in question therefore does not the public might not be able to distinguish this type of even when the government allows some speech in a non- least some occasions. (see dkt. no. 49, ricci decl. 2.) public forum, such as the issue-oriented leafletting notwithstanding this change to subsection (a), 36, ex. 1, parent decl. 4.) "designed to influence [an] election"). according to as a "public passageway" or "thoroughfare." finally, general public"). finally, to access the main entrance from willis practice went on for generations, and it never 232.1(h)(1) has been consistently enforced at the pittsfield f. supp. 2d 65, 68 (d.d.c. 2000). whatever ambiguities may since the solicitation of signatures clearly influences field for speech.'" ridley v. mass. bay transp. auth., 390 separated from the public streets and sidewalks by displaying or distributing commercial advertising, f. supp. 2d 143 (d.d.c. 2003) ("iri ii"), the postal service customers to the post office from the parking area."). reasonable construction of kokinda. that decision, sidewalk, as that term is defined by postal regulations, grounds that (1) the sidewalk in question is a non-public candidates for public office that they could not solicit the substance of the complaints was that the educators' ass'n, 460 u.s. 37, 45 (1983). sidewalks, in circulators wishing to collect signatures on petitions, decision in kokinda, which was reversed, have concluded that constituted a form of political campaigning. stairs just to the south of fenn street offers willis street distinct from the streets and sidewalks of the surrounding published a bulletin instructing postmasters that 17 application of 232.1(h)(1), ricci's sworn testimony, to defendants have moved for summary judgment on the different from "campaigning," and therefore he is entitled pittsfield post office, asserts that plaintiff also attempted favoritism," thomas v. chi. park dist., 534 u.s. 316, 325 proffered rationale for the restriction." new eng. reg'l parent stating that the postal sidewalk "solely provides expressive activity," 497 u.s. at 727 (plurality opinion), 43 a content-neutral restriction, such as the one imposed by the fourth circuit provided the following description the two feeder segments of the postal service sidewalk that transgress the first amendment. this holding leaves only public forum, a designated public forum . . . or a the inconsistent enforcement resulted from disapproval of immediate injunctive relief. has recognized that the avoidance of partisan walking surface changes from the ordinary concrete of the "that there is no genuine issue as to any material fact and to its accuracy, defendants attached to their memorandum the f.2d 9, 11-12 (2d cir. 1992)).20 post office. longo ii, 953 f. 2d 790, 794-95 (2d cir. 1992), vacated on in many towns and cities the local post office provides sidewalk, for the most part well inside and sharply were, prior to 2004, used for political campaigning in a concerns regarding the accuracy of the diagram the postal u. s. district judge 232.1. see miscellaneous organizational and administrative business"). ensuring the unimpeded ingress and egress of the postal property as a shortcut, the distinct postal on or about april 21, 2004, signatures on postal property. the supreme court held that sidewalks within a military associated with the speech activity at issue, and the on the ballot, he campaigned, as he had done in the past, other grounds by 506 u.s. 802 (1992), reinstated 983 f.2d 9 established "a framework for determining whether a expressive activities." van arnam v. gen. servs. admin., rise to a "powerful argument" that "it is more than a non- service customers to nearby non-postal service constitutes "unbuttressed rank hearsay" (pl.'s surreply to judgment.11 first eighteen years as a customer service supervisor, ricci undisputed. the record contains no evidence of any dedicated the property. based on all this, no reasonable on april 28, 2006, the court denied injunctive relief building itself, separating the parking lot from (observing that "the first amendment has its fullest and exterior of the pittsfield post office, which the parties ponsor, d.j. subject of soliciting signatures on postal property" prior to it is true, as the first circuit has explained, that outside united states post offices."). conclusion, as a matter of law, that defendants' actions roger parent, ) him after not enforcing it against scores of other described above. alternatively, a short flight of concrete circuit, "[t]he isolated nature of the building and the use of its property against the interests of those wishing customer's entrance onto, or departure from, postal vigorous and impressive efforts by this pro se litigant, no and (2) the postal sidewalk "is not merely an interior (4) whether the property serves as a postal patrons appears to be the purpose of other postal a maze-like pattern of evolving regulations. expression within the non-public sidewalk leading to the 473 u.s. 788, 800 (1985). "a forum can be a traditional postal sidewalk were not a non-public forum, the content- of lexington, 272 f.3d 25, 31 (1st cir. 2001). under this no. 23, del gallo aff. 1.)7 forum." cornelius v. naacp legal def. & educ. fund, inc., omitted). "if the government excludes a speaker who falls a final consideration serves to drive this point home. monroeville post offices, . . . the entrance areas are set ballot from patrons of the pittsfield post office. (dkt. on postal property, 43 fed. reg. 38,824, 38,824 (aug. 31, of postal service property that are open to the united states v. kokinda, 866 f.2d 699, 700 (4th cir. 1989), restriction as "consistent with existing regulations the most comfortable doctrinal pigeonhole for the postal that location and instructed plaintiff to move to the suggesting the contrary is plaintiff's speculation. for a seat in the massachusetts state senate. melle asserts city sidewalk to distinct reddish-grey granite pavers."), property"). defendants ) for summary judgment (dkt. no. 35) is hereby allowed. plaintiff's motions for temporary injunction and to permit sidewalk and both the parking lot and the post the upshot of these amendments is that persons postal serv., 993 f.2d 649, 657 (9th cir. 1992) ("the ultimately, such a challenge on possible in order to be reasonable"), the government's pittsfield post office. on the one hand, cooke asserts that movant in turn." reich v. john alden life ins. co., 126 forth in 232.1(h)(1) was enforced only sporadically at the iii, 417 f.3d 1299, 1310-11 (d.c. cir. 2005). here, the 727 (plurality opinion) (emphasizing that the postal moreover, as noted, the property at issue constitutes a i. soliciting signatures to place one's name on a ballot is pier] are not throughroutes; they only lead to the pier iii. discussion the nonmoving party; `material' means that the fact is one 150 f.3d 695, 702 (7th cir. 1998) ("the sidewalks [on the pittsfield post office for decades, cooke is generally unaware court must construe all facts, as well as reasonable signatures for non-partisan causes is already permitted. an purpose. first and fourteenth amendments to the united states 19 d. travel of the case. 7 mcguire controls the outcome here. that case involved the building. postal patrons must use the *4-5 ("in order to collect the signatures he needed to appear convenience against first amendment expression has generated of the factors identified as relevant by the courts, compound were non-public fora since they were separate and the postal sidewalk is a reasonable time, place and manner acknowledged that "the standard for allowing such an inference shown to provide a basis for the regulation in these (see dkt. no. 24.) in this submission, plaintiff raised separating the post office property from the conclusion that a significant government interest has been to time a candidate for political office. defendants, statutory scheme has in fact operated vis--vis the restriction "consistent with existing regulations 29 provided by a sharply divided supreme court. see united united states post office. regulations as well. see, e.g. , 39 c.f.r. 232.1(k)(4) plaintiff ) property. see miscellaneous amendments, 37 fed. reg. in preserv[ing] the property . . . for the use to which it noted, the government may not "license one side of a debate regulation of a designated public forum is "subject to constitutes a valid speech restriction, the postal service (1983)). with respect to the property's uses, plaintiff 23 general, along with streets and parks, can constitute public abortion advocates. even in the face of some evidence that unpersuasive for three reasons. framework, the extent to which the government can control north on willis street who wanted to turn to walk east on this ban in 1978 to "prevent abuses and to preclude any office building itself are set back from a public were a non-public forum and the postal regulation at issue the concern that the perception of the postal service might see also bjerke, 796 f.2d at 648 ("at the mcknight and solicitation involved campaigning for election to public from other traditionally public fora, see id. at 744 (brennan, forum on the facts of this case. viewing the record in the inaccurately depicted the postal service sidewalk as ingress to or egress from post offices, or otherwise 39 argue that plaintiff's conduct violated 39 c.f.r. 232.1(e). see also kinton, 284 f.3d at 22 (noting the absence of all other factors point away from any designation of solicitation, he concedes, would merely involve requesting proper boundaries of that outspokenness in the nitty-gritty postal building, and other exterior areas, such as access to postal services. also, until the 232.1(h)(1) is consistent with the regulation's animating pedestrians a shortcut to the segment of the postal sidewalk attached four photographs of the exterior of the pittsfield cert. denied, 509 u.s. 904 (1993).14 although some courts refer to the "limited public 34 only one arguably supports a finding of a traditional public serv., 506 u.s. 802 (1992) (no. 91-1988), 1992 wl 12074427, at (dkt. nos. 31, 35, 38, and 39) as its policy and practice. ridley v. mass. bay transp. hearing on his motion for injunctive relief. in opposing ass'n v. perry local educators' ass'n, 460 u.s. 37, 46 description will proceed on this assumption. relevant government officials. see mcguire v. reilly, 386 497 u.s. at 734-35. finally, an alternate public forum, however, defendants continued to take branch. according to frederick hintenach, the manager of defendants 3 by part or all of the public. see ark. educ. television favoritism is a valid justification for restricting ban on political campaigning is clear. to apply to the postal service, to the extent that it is the enactment of the broader ban on signature what [the government] does, not by what it says." grace "design characteristics that might be viewed as welcoming the entrusted an agency with rulemaking and administrative weeks on the postal sidewalk at issue gathering signatures compel defendants to admit that: (1) their diagram failed to 2002) (citations omitted). while "[t]he reasonableness between citizens, and discussing public questions." hague justice o'connor in her plurality opinion in kokinda. see office entrance. traditional public forum exists"); see also warren v. (1990) (no. 88-2031), 1989 wl 1127156, at *2. important to the postal service's business. thus, viewpoint-based regulation, is also an objectionable form of of intent from a pattern of impact [might] be more platforms, or fire hydrants in or on property is iii"), the postal service once again amended 232.1(h)(1), willing parties to walk onto non-postal property to provide does not contend that he should be permitted to collect rev'd 497 u.s. 720 (1990). the plaintiffs in kokinda adopted non-public forum is any public property not open by enforcement of that regulation arising from their distaste sidewalk on postal property that a four-justice plurality aff. at 2.) c.f.r. 232.1(a)(ii). the postal sidewalk constitutes a people gathering signatures for such candidates . for the district of massachusetts 8 speech rights." knights of columbus, council no. 94 v. town signatures to his companion, who would remain on the city to which the government has as a factual matter dedicated u.s. postal serv. v. council of greenburgh civic ass'ns, 453 remand to state court or, alternatively, an immediate diagram and photographs provided by defendants, it appears 26 constitutes a public forum, courts focus on a multitude of political campaigning? if so, are the postal sidewalks in upon their arrival, pittsfield police officers repeated beyond plaintiff's rank speculation, no evidence service regulations), are prohibited. second, the postal service's ban on political "justifications must be solidly grounded," kinton, 284 f.3d these areas constitute, at most, non-public fora. in all signatures has the same ring of "common sense" noted by it did so in order to protect unwitting "members of the enforcement or of more favorable treatment for plaintiff's parking area." 812 f.2d at 1197. according to the ninth that, beginning in february 2004, he spent approximately six expressive activity proposed by plaintiff would tend to rectangular parking area fills in the portion of the post soliciting signatures in support of his political candidacy perpendicular to and connect with the fenn street sidewalk; jury could conclude that the sidewalk area where plaintiff the court to address preliminarily two non-constitutional him based on his activities promoting fathers' rights and f.3d 45, 63 (1st cir. 2004).23 (citation omitted). fora because these areas "have immemorially been held in factors. see am. civil liberties union of nev. v. city of cross-motions for summary judgment and based on the foregoing, plaintiff's motion for summary depict the two branches of the postal sidewalk that run addressing a parallel postal regulation prohibiting community"). ultimately, the government is entitled to alter the could avoid the parking lot by turning south onto either of sidewalk at issue "was constructed solely to provide for the plaintiff initially brought this action before a single as noted above, the supreme court's kokinda decision is request for an admission (dkt. no. 39). perimeter sidewalks by means of some physical city of boston, 378 f.3d 8, 12 (1st cir. 2004) (citations and reminded plaintiff that he was not to enter onto postal on may 2, 2007, defendants produced a second diagram of effort by postal authorities to balance patron access and massachusetts. the west end of the l abuts a grassy margin public forum is even more scanty. (ii). having addressed these two preliminary questions, the signatures while standing on the city sidewalk abutting fenn to solicit signatures inside the post office lobby during this plaintiff attempts to counter this argument by citing regulations "were silent on the subject of soliciting collecting signatures on petitions, polls, or consistent with united states v.kokinda, the pittsfield kaltenbach, 204 f.3d 425, 433 (3rd cir. 2000); longo iv, 983 light most favorable to plaintiff, the postal sidewalks these allegations, as well as allegations that plaintiff 18 to determine whether the government intended to criminal penalties, including fines and imprisonment. 39 to prove viewpoint discrimination, plaintiff must show that postal service that are not physically manner suggesting that the sidewalk was a traditional public building. another sidewalk runs adjacent to the content of plaintiff's speech. with the public or managing the lobby" (curley decl. 1). plaintiff contends that the solicitation of signatures assembly and debate." perry educ. ass'n v. perry local when the circuit court for the district of columbia entanglement or the appearance of political on the undisputed facts of record in this case, a jury street. to enter the post office, cars enter a that such conduct constituted "campaigning." see longo v. vending of newspapers and other publications), forum." iskcon, 505 u.s. 672, 678 (1992) (citation grounds for decision.'" buchanan v. maine, 469 f.3d 158, f.3d 65, 88 (1st cir. 2004). as the supreme court has the position that "the postal service sidewalk provides the best place to begin an overview of this unfolding the public forum status of postal property, with the clarify that the prohibition against soliciting signatures corp., 316 f. supp. 2d 1201, 1207-08 (d. utah 2004) ("[t]he naacp legal def. & educ. fund, inc., 473 u.s. 788, 802 11 electioneering prohibition in 1977, it characterized the activities on postal property." (hintenach decl. 10.) restrictive alternative available to the government." id. and is prohibited by 39 c.f.r. 232.1(h)(1). the sidewalk f.2d 45, 47 n.3 (1st cir. 1991) (citation omitted); see also iri iii, 417 f.3d 1299, 1303 (d.c. cir. 2005) (citation in sum, while the current regulation does permit issue- location. see attachment b, appended. 8 witnessed candidates for public office collecting signatures countless candidates for political office . . . or plaintiff also filed a motion to certify a question to holding up a sign, or both. the leaflet or sign refused to do so, curley called the pittsfield police 505 u.s. 377, 392 (1992). the massachusetts supreme judicial court (dkt. no. 21), which reasonable person with any indication that she has "entered nature of the property and its past uses," kinton, 284 f.3d the area was a "non-public forum" and a separate concurrence plaintiff's motion for summary judgment (dkt. no. 31), allow postal costumers come to locations off postal property to at the request of paula cooke, another supervisor at on march 19, 2007, plaintiff moved for summary one district court that postal regulations "were silent on the to exit the parking lot, motorists back out of their sidewalk. at the behest of postal staff, the police and services. the filing of a late request for admission (dkt. nos. 38 and and connect with the portion of the postal sidewalk that moreover, the stairs between willis street and the that the moving party is entitled to a judgment as a matter 21 omitted). /s/ michael a. ponsor indeed, even the plaintiff in longo conceded that his "sidewalks perpendicular to the perimeter sidewalks"). closed. 232.1(h) remains applicable to c. discriminatory enforcement. this description in presenting their case to the supreme not be prohibited from standing on exterior parts et al., ) circumstances the district of connecticut and the second characteristics of public sidewalks traditionally open to j., concurring); (3) whether the property provides a abutting fenn street and follow the path of the pedestrian that he witnessed only two (unsuccessful) attempts at speech largely depends on "the nature of the relevant property. however, it is a cardinal principle of judicial is "consistent with every court of appeals to have decided pittsfield's post office sidewalk as a public forum. the retail operations must strive to furnish the

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