UNITED STATES v. KOKINDA

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Case Basics
Docket No. 
88-2031
Petitioner 
United States
Respondent 
Kokinda
Advocates
(Argued the case for the United States)
(Argued the case for the respondents)
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Facts of the Case 

Marsha Kokinda and Kevin Pearl were volunteers for the National Democratic Policy Committee. They set up a table on a sidewalk near a post office to solicit contributions and sell political literature. After post office employees received a large number of complaints, Kokinda and Pearl were asked to leave. They refused, at which point postal inspectors arrested them. They were charged and convicted of violating 39 CFR 232.1(h)(1)(1989), which prohibits "soliciting alms and contributions ... on postal premises." They appealed the convictions, arguing that they violated the Free Speech clause of the First Amendment. The District Court, ruling that the sidewalk in question (which was entirely on Postal Service property and was intended only for traffic to and from the Post Office) was not a public forum, found that the restrictions were reasonable and therefore did not violate the First Amendment. On appeal, however, a divided panel of the Fourth Circuit Court of Appeals ruled that the sidewalk was a traditional public forum and that the government's regulations were therefore subject to strict scrutiny. Because the government had no significant interest in banning solicitation, the convictions were unconstitutional.

Question 

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 a prohibition of solicitation pass strict scrutiny? If it is not a public forum, does it pass a "reasonableness" test?

Conclusion 
Decision: 5 votes for United States, 4 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly

In a divided opinion, the Court ruled that the prohibition was not unconstitutional. Justice Sandra Day O'Connor, writing for a four-member plurality, wrote that the sidewalk was not a public forum. "Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny. ... But regulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness." The need to prevent solicitors from interrupting postal business satisfied this "reasonableness" test, so the convictions were constitutional. Justice Anthony Kennedy, writing separately, held that it was unnecessary to determine whether the sidewalk was a public forum because the regulation met the traditional standard applied to time, place, and manner restrictions of protected expression.

Cite this Page
UNITED STATES v. KOKINDA. The Oyez Project at IIT Chicago-Kent College of Law. 23 October 2014. <http://www.oyez.org/cases/1980-1989/1989/1989_88_2031>.
UNITED STATES v. KOKINDA, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1980-1989/1989/1989_88_2031 (last visited October 23, 2014).
"UNITED STATES v. KOKINDA," The Oyez Project at IIT Chicago-Kent College of Law, accessed October 23, 2014, http://www.oyez.org/cases/1980-1989/1989/1989_88_2031.