William J. Brennan, Jr.

“ Parks are usually constructed to beautify a city and to provide opportunities for recreation, rather than to afford a forum for soapbox orators or leafleteers; streets are built to facilitate transportation, not to enable protesters to conduct marches; and sidewalks are created with pedestrians in mind, not solicitors. Hence, why the sidewalk was built is not salient. ”

“ We have never applied a "reasonableness" test to speech in a place where government property was open to the public. [5] Indeed, even in regulated environments where a public right of access nevertheless exists, we have applied a higher level of scrutiny to restrictions on speech than the plurality does today. ”

“ Public parks, streets, and sidewalks are public forums because open access by all members of the public is integral to their function as central gathering places and arteries of transportation. Public access is not a matter of grace by government officials but rather is inherent in the open nature of the locations. As a result, expressive activity is compatible with the normal use of a public forum and can be accommodated simply by applying the communication-neutral rules used to regulate other, non-speech-related conduct on the premises. ”

“ As I have commented previously, " [n] o doubt a plausible argument could be made that the political gatherings of some parties are more likely than others to attract large crowds causing congestion, that picketing for certain causes is more likely than other picketing to cause visual clutter, or that speakers delivering a particular message are more likely than others to attract an unruly audience. . . . [But] governments [must] regulate based on actual congestion, visual clutter, or violence rather than based on predictions that speech with a certain content will induce these effects." ”

“ Today the Court holds that a United States Postal Service regulation prohibiting persons from " [s] oliciting alms and contributions" on postal premises does not violate the First Amendment as applied to members of a political advocacy group who solicited contributions from a sidewalk outside the entrance to a post office. A plurality finds that the sidewalk is not a public forum and that the Postal Service regulation is valid because it is "reasonable." ”

“ But solicitors do not purportedly irk customers by speaking unusually loudly or uncomfortably close to their subjects. Rather, the fear is that solicitation is bothersome because of its content: The post office is concerned that being asked for money may be embarrassing or annoying to some people, particularly when the speaker is a member of a disfavored or unpopular political advocacy group. For example, the Government makes much of the 40 or 50 customer complaints received at the Bowie Post Office while respondents solicited the public. ”

“ Traditional public forum property occupies a special position in terms of First Amendment protection and 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. ”

“ Nor is it important that the sidewalk runs only between the parking lot and post office entrance. The existence of a public forum does not turn on a particularized factual inquiry into whether a sidewalk serves one building or many or whether a street is a dead end or a major thoroughfare. ”

“ The wooden distinctions drawn today by the plurality have no basis in our prior cases and, furthermore, are in apparent contradiction to the plurality's admission that " [t] he mere physical characteristics of the property cannot dictate forum analysis." Ante, at 727. It is irrelevant that the sidewalk at issue may have been constructed only to provide access to the Bowie Post Office. Public sidewalks, parks, and streets have been reserved for public use as forums for speech even though government has not constructed them for expressive purposes. ”

“ For the most part, on streets and sidewalks, including the single-purpose sidewalk at issue here, communication between citizens can be permitted according to the principle that "one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion." ”

“ Moreover, even were the Postal Service's administrability concerns real, the Service could quite easily design categorical rules governing solicitation that would both obviate the need for administrative discretion and yet fall far short of a total ban. The Service could formulate, for example, reasonable restrictions on the size and placement of tables, on solicitation during peak postal hours, on the use of parking spaces by nonpostal customers, or on the number of persons who may engage in solicitation at the same time and place. ”

“ Disorderly conduct, or conduct which creates loud and unusual noise, or 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. ”

“ This inconsistent treatment renders the prohibition on solicitation unreasonable. The Postal Service undeniably has a legitimate interest in avoiding disruption of its postal facilities and ensuring that its buildings remain accessible to the public. ”

“ The plurality's logic, as Justice BLACKMUN has noted in a previous case, would make restrictions on access to limited public forums self-justifying:
"The Court makes it virtually impossible to prove that a forum restricted to a particular class of speakers is a limited public forum. If the Government does not create a limited public forum unless it intends to provide an 'open forum' for expressive activity, and if the exclusion of some speakers is evidence that the Government did not intend to create such a forum, . ”