No. 95-2891

 

Families Achieving Independence *

and Respect, Sheryl Walker, *

Vicki Stippel, *

*

Appellants, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Nebraska Department of Social *

Services, Mary Dean Harvey, *

Ann Hogan, Daryl Wusk, Suzy *

Skinner, *

*

 Appellees. *

 

Submitted: February 12, 1996

 Filed: July 31, 1996

 

Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

 

HEANEY, Circuit Judge.

A grass-roots, welfare rights organization brought this action under

42 U.S.C. §§ 1983 and 1988 to gain access to the lobby of a state-operated,

welfare office for the purpose of distributing written materials to and

discussing welfare policy issues with welfare recipients. The district

court held that the state's exclusion of the group did not violate the

First or Fourteenth Amendment. We reverse. The policy employed to decide

which persons are permitted access to the lobby is vague and subject to

arbitrary enforcement. For this reason, the group's exclusion violates the

First Amendment.
 FAIR has no membership list per se and is not incorporated. 1

The organization's two staff members, Sheryl Walker and Vicki

Stippel, are the other named appellants in this case. Each is a

welfare recipient who, for her work on behalf of FAIR, receives

"scholarships" in lieu of a salary. FAIR, 890 F. Supp. at 863.

FAIR finances its activities under a grant from a charitable

organization. The director of the Nebraska Center for Legal

Services (a special project of the Legal Aid Society, Inc. of

Omaha) oversees the grant and advises FAIR with respect to the

conditions of the grant and long-term organizational strategy. The

primary limitation on the funds is that the money may not be used

for political purposes. As a result, FAIR does not engage in

activities related to partisan politics or in the direct lobbying

of elected officials. (Tr. 42:4-17.) 

Nonetheless, the dissent attempts to present FAIR as a highly

political organization both registered as a lobbyist with the state

and "allied . . . with various organizations, including the

Nebraska Women's Political Network, the National Organization of

Women, and the Nebraska Democratic Women . . . ." Dissenting Op.,

infra at 2. As found by the district court, FAIR was not a

registered lobbyist when this case went to trial. FAIR, 890 F.

Supp. at 862. FAIR briefly registered with the State of Nebraska

as a lobbyist out of "an excess of caution," (Tr. 39:13-14), and

soon withdrew its application for registration after determining,

with the assistance of the staff of the Accountability and

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I. BACKGROUND

The facts of this case are essentially undisputed. After a

consolidated bench trial and hearing on a request for preliminary

injunction, the district court made detailed findings of fact pursuant to

Federal Rule of Civil Procedure 52(a). Families Achieving Independence &

Respect v. Nebraska Dep't of Social Servs. ("FAIR"), 890 F. Supp 860 (D.

Neb. 1995). We summarize below only those facts relevant to our decision.

Families Achieving Independence and Respect (FAIR) is a looselyorganized group of past and current welfare recipients providing

educational support for low-income persons. Among its goals, FAIR seeks

"to more fully inform the public discussion and debate on the 'welfare

system' and 'welfare reform.'" FAIR, 890 F. Supp. at 862 (quoting Pls.'

Ex. 3, Funding Proposal at 1).1
Disclosure Commission, that FAIR was not a lobbyist (Tr. 39:19-

40:22). Moreover, the extent of FAIR's affiliation with political

organizations was its co-sponsorship of a rally at the state

capital. The rally was also sponsored by various day care

providers; those day care providers certainly were not transformed

into political groups by their mere association with the rally. In

any event, our decision turns on the policy used by the welfare

office to distinguish between organizations appealing to use the

facilities, not on the exact nature of FAIR's political leanings.

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 The Nebraska Department of Social Services (NDSS) is a state agency

that provides assistance to low-income individuals and families. NDSS

maintains both a local office and a central office in Lincoln, Nebraska.

Daryl Wusk is the administrator of the local NDSS office in Lincoln. The

local NDSS office provides a broad range of services to welfare recipients.

As Wusk explained, "Our agency is not only involved in [providing]

maintenance . . . like food stamps and AFDC and Medicaid, but we also are

a complete service office that has child welfare and adult protective

services and the whole menagerie, if you will, of Social Services programs

. . . ." Id. at 863 (quoting Tr. 132:13-23). 

The local office of NDSS is located on the second floor of a

commercial building owned and managed by a private company. The building

management will not allow FAIR or any other group to distribute materials

in the common areas of the building. Within the local NDSS office is a

large, enclosed waiting and reception area (hereinafter "lobby"). The

lobby is a high-traffic area of the local NDSS office. Id. It is

especially busy during the first five days of the month when the agency

issues food stamps to over 1,920 households "over the counter" in the

reception area. Id. Throughout the month, the lobby is used by people

waiting to receive food stamps as well as by clients waiting to meet with

NDSS personnel in adjoining interview rooms. 

NDSS has no agency policy for dealing with requests from outside

groups to distribute information or otherwise engage in
 Stippel testified that, in addition to the listed groups, she 2

had seen Girl Scouts using the lobby of the local NDSS office in

the past. (Tr. 80:23-81:7.) The district court, however, credited

Wusk's testimony whereby he "specifically denied allowing the Girl

Scouts access to the [lobby] to hand out materials." 890 F. Supp.

at 866, n.4. Wusk's actual testimony illustrates not only his poor

memory of this matter, but also some of the problems inherent in

enforcing a policy like Wusk's:

A. [Wusk:] We have probably had Girl Scouts on

the premises, but I don't believe that they--that I

recall ever set up a table to sign up and do those

kinds of things. We have groups come in once in a

while and bring

us or come in to see the office and do little mini tours and

things, but they may have come that way, but I don't remember that

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speech activity on NDSS property. Wusk has developed an unwritten policy

to handle such requests at the local NDSS office. According to Wusk, he

declines to open the lobby "up for the world"; rather, he tries "to

'minimize the numbers of groups' allowed access 'as much as possible.'"

Id. at 865 (quoting Tr. 120:21-22, 150:15-151:3). Wusk explained that

restrictions are necessary to prevent administrative difficulties, such as

congestion, and to ensure that his clients are treated with dignity and not

forced to encounter individuals promoting a particular political agenda.

Id. at 866. Specifically, Wusk's policy consists of two parts: (1) only

groups that provide a "direct benefit" associated with the "basic needs"

of welfare recipients are allowed access to the lobby, and (2) "advocacy

groups" are never allowed access regardless of the message or position

advocated by the group. Id. 

 

Over the years, Wusk has received numerous requests from groups

seeking access to the lobby. Wusk has granted the requests of four groups:

(1) volunteers who assisted welfare recipients in the preparation of state

and federal income tax returns, (2) representatives of the Head Start

Program who registered children of welfare recipients for the preschool

program, (3) representatives of a food and nutrition program who

distributed literature and recipes, and (4) persons who registered welfare

recipients for GED and English-as-a-second-language courses at a local

community college. Wusk specifically turned down requests 2
they came in and did a table.

Q. Is it possible that somebody could have set up

[a table] in the office area at sometime without

your knowledge?

A. That is possible.

Q. Had you known that the Girl Scouts wanted to

come on the premises and access clients for the

purpose of soliciting membership, would you have

allowed that to happen?

A. No.

(Tr. 124:16-125:4.)

Although the district court might have been more accurate had it

characterized Wusk as having denied that he remembered giving the

group access, we do not disturb the court's factual finding that

the Girl Scouts were never permitted to distribute materials or

solicit membership in the lobby.

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for access to the lobby by groups and institutions including a Wesleyan

University social work class, the Lincoln School of Commerce, "Mad Dads"

(a church-affiliated group designed to provide children with constructive

activities), "Journey" (a Native American health rights organization), a

"Right-To-Life" group, and various University of Nebraska research groups.

Id. 

To determine whether an entity making a request to use the lobby is

an advocacy group--and thus excludable--Wusk explained that either a group

would self-identify as an advocacy group or he would review the group's

literature to make a subjective determination about the nature of the

group's work. (Tr. 137:1-144:6.) Despite her best efforts, counsel for

FAIR could not pin Wusk down on clear definitions of either "advocacy

group" or a welfare recipient's "basic needs." With respect to the former,

Wusk testified that an advocacy group is one that "promotes an issue."

(Tr. 137:21-24.) As to welfare clients' basic needs, Wusk
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explained that food, clothing, and shelter certainly qualify; in the same

sentence, however, he asserted that even the Lincoln Children's Museum

"addresses a psychological need" consistent with his agency's commitment

to "deal with child welfare and trying to promote some healthy families."

(Tr. 141:9-17.) Wusk also stated that he would not permit the Red Cross

to use the lobby to distribute information on CPR because his "customers

can live long and healthy [lives] without CPR training." (Tr. 135:22-

136:14.) 

In January 1995, Stippel telephoned Suzy Skinner, Wusk's assistant,

and requested permission to have one or two FAIR members sit at a table in

the lobby during the first three days of February. FAIR representatives

wanted to talk to welfare recipients and distribute materials. The written

materials included: (1) a brochure that explains what FAIR is, the group's

goals, and the policy issues FAIR seeks to address; (2) a flier announcing

an upcoming Valentine's Day rally at the state capitol to "Stop the War on

Poor Children" co-sponsored by FAIR; and (3) a postcard designed for

welfare recipients to send to their elected representatives in the names

of their children urging support for measures to assist families in getting

off welfare. After reviewing the materials, Skinner indicated that she did

not think that there would be any problem but that she would have to

discuss the matter with Wusk. 890 F. Supp. at 864-65. Wusk then reviewed

the materials and denied FAIR's request to use the lobby. Wusk stated that

FAIR did not provide a direct benefit to NDSS clients. Id. at 865. 

On February 1, 1995, despite Wusk's decision, representatives from

FAIR came to the lobby to talk to welfare recipients and to distribute

information. Skinner again informed the group that it was not permitted

to use the lobby. During this conversation, Skinner asked whether FAIR's

announcement about the upcoming rally could be placed on the bulletin board

in the lobby. Id. Wusk, through Skinner, subsequently informed FAIR it

would not be allowed
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to display the announcement on the bulletin board because it did not

provide a direct benefit to welfare recipients. Id. After being informed

that they would not be allowed to remain in the lobby, all members of the

group left voluntarily without causing a disturbance.

FAIR brought this civil rights action pursuant to 42 U.S.C. §§ 1983

and 1988 alleging that the defendants violated their First Amendment rights

to free speech and free association and their Fourteenth Amendment right

to equal protection by denying them access to the lobby where other groups

had been allowed to engage in similar activity. After a hearing, the

district court decided in favor of the defendants. The court held that the

lobby was not a public forum. Thus, FAIR's expressive activity could be

prohibited in the lobby without violating the First Amendment as long as

the regulation was reasonable and not an effort to suppress expression

because of opposition to the speaker's views. The court concluded that the

NDSS prohibition was reasonable because it sought to maintain the lobby as

a place where social services are dispensed as opposed to a place for

discussion and debate on public policy issues. FAIR appeals. We reverse.

II. DISCUSSION

 

Appellants do not challenge the district court's findings of fact.

Rather, FAIR challenges the district court's legal conclusion that FAIR's

exclusion from the welfare office lobby was constitutional. Although we

review the district court's factual findings only for clear error, Fed. R.

Civ. P. 52(a), where the constitutional issues present mixed questions of

law and fact, our review is de novo. Gerritsen v. City of Los Angeles, 994

F.2d 570, 574 (9th Cir.) (noting that review of First Amendment questions

is de novo because they present mixed questions of law and fact requiring

the appellate court to apply principles of First
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Amendment jurisprudence to the specific facts of the case), cert. denied,

510 U.S. 915 (1993).

In holding that NDSS's exclusion of FAIR from the welfare office

lobby was constitutional, the district court relied heavily on its

determination that the welfare office lobby was not a public forum. FAIR,

890 F. Supp at 871. Having made that determination, the court disposed of

the remaining questions--whether the prohibition was reasonable and not an

effort to suppress the speakers' activity due to disagreement with their

views--in relatively short order. In this case, however, the

constitutionality of FAIR's exclusion from the welfare office turns not on

the labeling of the forum, but on an analysis of the policy. We hold that

the policy on its face violates the First Amendment under even the leastexacting reasonableness standard applicable to nonpublic forums. See Perry

Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983)

(delineating three categories of public property and each category's

corresponding standard of review). The welfare office policy is

unreasonable because it permits state officials to apply impermissibly

vague criteria to distinguish between persons or groups seeking to engage

in expressive activity in the lobby. See NAACP Legal Defense & Educ.

Fund,, 504 F. Supp. 1365, 1367 (D. D.C. 1981) (holding that a requirement

that a charity provide "direct services" is too vague a basis on which to

distinguish between groups for participation in a federally-sponsored,

fund-raising campaign). Therefore, we reverse the district court without

engaging in an exhaustive forum analysis and leave the question of whether

the welfare office lobby is a public forum for another day. See Airport

Comm'rs v. Jews For Jesus, 482 U.S. 569, 573-74 (1987) (holding it

unnecessary to reach public forum question where regulation prohibiting all

First Amendment activities in airport was facially unconstitutional under

overbreadth doctrine); Lebron v. National R.R. Passenger Corp. (AMTRAK),

74 F.3d 371, 372 (2d Cir. 1996) (C.J. Newman, dissenting) ("[N]o matter

what the scope of the forum, a governmental entity
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violates the First Amendment when it bars display of political messages

pursuant to a 'policy' that [is] vague, unwritten, unclear to those who

must administer it, and inconsistently applied."), denying reh'g and

amending, Lebron v. AMTRAK, 69 F.3d 650 (2d Cir. 1995).

 The essential, interrelated terms of the policy--"direct benefit,"

"basic needs," and "advocacy group"--are neither self-defining nor defined

by the policy. On the contrary, the terms are elastic. As demonstrated

by Wusk's own testimony, it is difficult to define the terms and nearly

impossible to apply them consistently. We disagree with the dissent's

contention that Wusk's policy has been consistently interpreted and

applied, Dissenting Op., infra at 7. For example, we see no basis for a

bright-line distinction between Head Start--a group that provides preschool

education and socialization opportunities for poor children--and FAIR--a

group that educates welfare recipients and gives them the tools to

understand and participate in the legislative process as it pertains to

welfare reform. Both provide a benefit to welfare recipients, and both are

motivated by a desire to improve the basic living conditions of the least

privileged in our society. Moreover, both are arguably advocacy groups in

that both "promote issues." We discuss application of the policy to other

groups not to imply that Wusk committed any particular error, but instead

to highlight that the policy necessarily requires arbitrary line drawing

and yields inconsistent results.

If a governmental policy restricts protected expressive conduct, it

will withstand constitutional scrutiny only if it is clear and consistently

applied. NAACP Legal Defense & Educ. Fund v. Campbell, 504 F. Supp. at

1367. Two particular policies underlie this vagueness doctrine: (1) the

need for notice informing those subject to a policy of its meaning, and (2)

providing officials with explicit guidelines to avoid arbitrary and

discriminatory enforcement. Id. The state policy fails on both
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counts. The policy fails to give adequate notice and confers a virtually

unrestrained power on authorities to decide whether a group provides a

benefit to welfare recipients. Cf. Airport Comm'rs v. Jews For Jesus, 482

U.S. at 576 ("The opportunity for abuse, especially where a statute has

received a virtually open-ended interpretation, is self-evident.")

(citations omitted). 

The dangers of a vague standard are all the more heightened where,

as here, a group seeks to engage in core expressive conduct protected by

the First Amendment. The Supreme Court recently observed that "handing out

leaflets in the advocacy of a politically controversial viewpoint [] is the

essence of First Amendment expression." McIntyre v. Ohio Elections Comm'n,

 U.S. , 115 S. Ct. 1511, 1519 (1995); see also Albany Welfare Rights

Org. v. Wyman, 493 F.2d 1319 (2nd Cir.), cert. denied, 419 U.S. 838 (1974)

(holding that a blanket denial to welfare rights organization requesting

to hand out leaflets at welfare office violated First Amendment). FAIR is

a grass-roots organization designed to empower welfare recipients and

facilitate their involvement in welfare reform. To that end, FAIR wants

to provide information to welfare recipients about the current welfarereform debate and about the possible impacts of proposed legislative

changes. It is well established that:

[d]iscussion of public issues . . . [is] integral to the

operation of the system of government established by our

Constitution. The First Amendment affords the broadest

protection to such political expression in order "to

assure [the] unfettered interchange of ideas for the

bringing about of political and social changes desired by

the people." Roth v. United States, 354 U.S. 476, 484

(1957). Although the First Amendment protections are not

confined to "the exposition of ideas," Winters v. New

York, 333 U.S. 507, 510 (1948), "there is practically

universal agreement that a major purpose of the Amendment

was to protect the free discussion to governmental

affairs . . . ." Mills v. Alabama, 384 U.S. 214, 218

(1966). This no more than reflects our "profound

national commitment to the principle that debate on
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public issues should be uninhibited, robust, and wideopen." New York Times v. Sullivan, 376 U.S. 254 (1964).

McIntyre, 115 S. Ct. at 1518-19. The vagueness of the state's policy is

particularly problematic in view of the fact that the policy was used to

prevent FAIR from engaging in core speech.

By rejecting the approach used by the local NDSS office to control

access to its lobby, we do not preclude all restrictions on the use of its

welfare office lobby. The government need not permit all forms of speech

on property that it owns or controls. Certainly the agency has a right,

as well as a duty, to protect its clients from fraud, harassment, and undue

annoyance. Safety and over-crowding also present legitimate administrative

concerns. Although the policy under consideration may be well-intended,

its standards are vague and it creates a substantial potential for

arbitrary and discriminatory application. It follows that the policy

cannot withstand First Amendment scrutiny. Therefore, we reverse the

decision of the district court.

MAGILL, Circuit Judge, dissenting.

I respectfully dissent. Because I conclude that the Nebraska

Department of Social Services' Lancaster County local office's (NDSS)

policy on expressive activities by outside groups is not unconstitutionally

vague, and that the district court correctly determined that (1) the NDSS

office is not a public forum; (2) the NDSS's regulation of expressive

conduct in the office is reasonable; and (3) the NDSS prohibition on

Families Achieving Independence and Respect's (FAIR) efforts to advocate

their position to a captive audience was not motivated by opposition to

their viewpoint, I would affirm the district court.
 The bulletin boards contained information regarding

3

nutrition, health, housing, Head Start registration, volunteer tax

assistance, a "parent's center" at the YWCA, employment and

employment training opportunities, free stoves from a rent-to-own

company, free

admissions or family memberships to the Lincoln Children's Museum,

and enrollment in "Tele-Care," a service offered by the Lincoln

General Hospital to ensure participants' well-being on a daily

basis. See Def. Ex. 1.

I.

During the first five days of each month, the NDSS office in Lincoln,

Nebraska, is "especially busy because food stamps are issued to 1,920

households 'over the counter.'" FAIR v. Nebraska Dep't of Social Servs.,

890 F. Supp. 860, 864 (D. Neb. 1995). To limit congestion in such a hightraffic area and to "'treat [welfare recipients] with dignity' and not

force NDSS customers to encounter individuals promoting a particular

political point of view in order to obtain the necessities of life," id.

at 866 (quoting Trial Tr. at 119-20), Daryl Wusk, the administrator of the

NDSS office, created a "general policy of keeping the waiting/reception

area [of the NDSS office] closed." Id. at 865. This policy provided that

(a) "advocacy groups," regardless of whether Wusk agreed

or disagreed with the group's message, were never allowed

access to the waiting/reception area for advocacy

purposes; and (b) only groups that provided a "direct

benefit" associated with the "basic needs of our

customers" were allowed access to the waiting/reception

area.

Id. at 865-66 (citations to record omitted; note omitted). A similar

policy applied to the bulletin boards located in the office. See id. at

866-67.

The district court found that, "[o]ver the years, only four groups

had been allowed access to the waiting/reception area in order to hand out

materials to welfare recipients." Id. at 866. These groups provided

nutrition information, registration in GED and ESL adult education courses,

registration in Head Start prekindergarten classes, and volunteer

assistance with state and federal tax forms. By contrast, other groups, 3

such as social work
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classes, right-to-life groups, and "Mad Dads" (a group which Wusk belonged

to and otherwise supported) were consistently denied access to the office.

In January 1995, FAIR sought access to the office to advertise an

upcoming rally at the Nebraska state capitol. FAIR, which had been a

registered lobbyist in the State of Nebraska and had allied itself with

various organizations, including the Nebraska Women's Political Network,

the National Organization of Women, and the Nebraska Democratic Women, was

sponsoring the rally to "show strong, unified, grassroots opposition to the

destruction of our nation's social safety net." Pl. Ex. 5. FAIR was

denied access to the NDSS office's lobby and bulletin boards because it was

an advocacy group which did not offer a direct benefit associated with a

basic need of welfare recipients.

FAIR brought an initial action in the district court for temporary

injunctive relief, which was denied, and the instant action, seeking

damages and permanent injunctive relief. Following a hearing, the district

court denied relief. In its thoughtful and well-written memorandum

opinion, the district court determined that, under several competing

Supreme Court tests, the NDSS office was not a public forum. See FAIR, 890

F. Supp. at 871. Because of this crucial determination, the policy

limiting expressive conduct in the office could be upheld if it was

"reasonable," see id. at 874, and if the policy was not an effort to

discriminate on the basis of the speaker's viewpoint, see id. at 877. The

district court, finding that "neither the unwritten nature of the policy

nor the substance of the policy itself afforded Wusk or anyone else overly

broad discretion in violation of the First Amendment," id.
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at 875 n.14, held that neither the plaintiffs' First Amendment nor equal

protection rights had been violated. Id. at 877-78.

II.

In this case, the district court served as the finder of fact, and

this Court reviews these findings only for clear error. See Fed. R. Civ.

P. 52(a). Throughout its opinion, however, the majority second-guesses the

facts found by the district court, and attempts to draw its own factual

conclusions from the record in this case without initially finding clear

error. For example, in describing Head Start, one of the organizations

allowed to use the NDSS office, the Majority declares:

we see no basis for a bright-line distinction between

Head Start--a group that provides preschool education and

socialization opportunities for poor children--and FAIR--

a group that educates welfare recipients and gives them

the tools to understand and participate in the

legislative process as it pertains to welfare reform.

Both provide a benefit to welfare recipients, and both

are motivated by a desire to improve the basic living

conditions of the least privileged in our society.

Moreover, both are arguably advocacy groups in that both

"promote issues." 

Maj. Op. at 9. I am frankly confused by the majority's inability to

distinguish between a political advocacy organization and a preschool

class: the first attempts to secure political goals by campaigning and

outreach efforts, while the other teaches infants their ABCs. The majority

assumes that FAIR provides a benefit to welfare recipients, but the

district court did not make this finding of fact. Beyond a witness's

assertion at trial that FAIR's efforts were "educational," see Trial Tr.

at 60 (Testimony of Walker) ("[i]f we did not notify them [welfare

recipients] of the rally, they may not know about it"), I can find nothing

in the record to support such a conclusion. The majority assigns similar

motivations to Head Start and FAIR, yet this description of Head
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Start's goals is found nowhere in the record; I must assume that the

majority is taking judicial notice (from what source, I am uncertain) of

facts which were not in evidence at the trial. The district court, in

considering FAIR's comparison of itself and groups allowed access to the

NDSS office, found such a comparison "factually unfounded," FAIR, 890 F.

Supp. at 872. The majority ignores this finding and "arguably" concludes

that Head Start is, like FAIR, an advocacy group. There is not a scintilla

of evidence in the record to support this conclusion, however, and I

accordingly reject it. 

In addition, the majority states that Wusk's analysis of whether an

organization was an advocacy group was a "subjective determination." Maj.

Op. at 5. Whether Wusk based his decisions on subjective or objective

criteria is a question of fact, and the finding made by the majority was

not made by the district court. In addition to usurping the fact-finding

function of the district court, the majority makes this assertion without

evidentiary support. Wusk testified that his determination was usually

based on a group's self-identification as an advocacy group, see Trial Tr.

at 137, which is clearly an objective criteria. When Wusk attempted to

provide an objective definition of "advocacy," FAIR's attorney interrupted

him, and stated, "I don't care about other people. I want to know how you

define advocacy group." Id.

III.

The majority, declining to address whether the lobby of the NDSS

office is, or is not, a public forum, declares the office's unwritten

policy to be vague, and therefore facially unconstitutional, because the

"essential, interrelated terms of the policy--'direct benefit,' 'basic

needs,' and 'advocacy group'--are
 In concluding that the policy in this case is vague, the

4

majority relied on the dissenting opinion in Lebron v. National

R.R. Passenger Corp. (AMTRAK), 74 F.3d 371, 372-73 (2d Cir. 1995)

(Lebron II) (Newman, C.J., dissenting), cert. denied, 116 S. Ct.

1675 (1996), which argued that:

no matter what the scope of the forum, a

governmental entity violates the First Amendment

when it bars display of political messages pursuant

to a 'policy' that has been found by a fact-finder,

with abundant evidentiary support, to be vague,

unwritten, undisseminated, unclear to those who

must administer it, and inconsistently applied.

(emphasis added). I note that, in this case, no finder of facts

has made these findings, with the sole exception that the policy

was unwritten. Indeed, the district court rejected FAIR's argument

that the policy was ambiguous, see FAIR, 890 F. Supp. at 875 n.14,

and found instead that the policy "was clear and simple." Id. See

also id. at 866 (describing only consistent applications of the

policy).

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neither self-defining nor defined by the policy." Maj. Op. at 9. See also

id. (describing these terms as "elastic"). I disagree.4

While the NDSS office's policy is unwritten, "[t]he fact that a

policy is not committed to writing does not of itself constitute a First

Amendment violation," Lebron v. National R.R. Passenger Corp. (AMTRAK), 69

F.3d 650, 658 (2d Cir. 1995), opinion amended on denial of reh'g, Lebron

II, 74 F.3d at 371, so long as the policy is made explicit by "'wellestablished practice.'" Id. (quoting City of Lakewood v. Plain Dealer

Publishing Co., 486 U.S. 750, 770 (1988)). As noted by the district court,

there was little or no practical reason for Wusk (or the

other defendants) to write a regulation since the

regulation was clear and simple: the forum was generally

closed except to welfare recipients. . . . [T]o the

extent that the policy contained an exception for outside

groups, the exception was quite limited, and it too was

clear and simple: only groups that provided a "direct

benefit" associated with the "basic needs of our

customers" were allowed access to the forum.
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FAIR, 890 F. Supp. at 875 n.14. 

We have held that, "[t]o survive a vagueness challenge, a statute [or

policy] must give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited and provide explicit standards for

those who apply the statute." United States v. Dinwiddie, 76 F.3d 913, 924

(8th Cir. 1996) (quoting Video Software Dealers Ass'n v. Webster, 968 F.2d

684, 689 (8th Cir. 1992)). In examining the terms of a rule for vagueness,

the Supreme Court has noted that 

there are limitations in the English language with

respect to being both specific and manageably brief, and

it seems to us that although the prohibitions [here] may

not satisfy those intent on finding fault at any cost,

they are set out in terms that the ordinary person

exercising ordinary common sense can sufficiently

understand and comply with, without sacrifice to the

public interest.

CSC v. Letter Carriers, 413 U.S. 548, 578-79 (1973) (upholding restrictions

on federal employees' political activities). See also Cornerstone Bible

Church v. City of Hastings, 948 F.2d 464, 473-74 (8th Cir. 1991) (rejecting

argument that ordinance was impermissibly vague for failing to define

"church," "private club," and "economic activity"); cf. Tindle v. Caudell,

56 F.3d 966, 973 (8th Cir. 1995) ("the ability to conceive of hypothetical

problematic applications does not render the rules susceptible to an overbreadth challenge") (noting that rules which did "not precisely define what

would constitute impermissible conduct" were nevertheless not vague because

"they give adequate notice that high standards of conduct are required").

Under these principles of common sense interpretation and wellestablished practice, the NDSS office's policy meets the standard set forth

in Dinwiddie. The definition of an "advocacy group" provided by Wusk, a

group which "promotes an issue," Trial
 In Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S.

5

788, 811-12 (1985), the Supreme Court had no difficulty in

comprehending the meaning or parameters of this phrase. The Court,

considering the argument that "a decision to exclude all advocacy

groups, regardless of political or philosophical orientation, is by

definition viewpoint neutral," stated that "we accept the validity

and reasonableness of the justifications offered by [the

government] for excluding advocacy groups." Id. (remanding for a

factual determination of whether viewpoint discrimination had taken

place). At no point did the Supreme Court declare the term

"advocacy group" to be vague or overbroad.

 The majority does not contend that FAIR was not an advocacy 6

group, and under a common sense definition, FAIR must be considered

as such. At oral argument, FAIR acknowledged that it advocated for

changes in legislation. In addition, FAIR has been a registered

lobbyist, has allied itself with one of the major political

parties, self-proclaims that the purpose of its existence is to

"give low-income families a pro-active voice in Nebraska's Welfare

Reform program," Pl. Ex. 4, and sought to distribute postcards for

NDSS clients to send to Nebraska legislators. See FAIR, 890

F. Supp. at 862-63. The postcards contained specific political

requests regarding welfare reform, including "Please--no lifetime

limit that will add to homelessness. Please--no orphanages just

because we are poor. Please--no new baby penalties (family caps).

Don't punish us because we are born and our parents are poor." Pl.

Ex. 6 (emphasis in original). To compare FAIR's political advocacy

"with expressive activity intended to provide information on meal

preparation and the like," FAIR, 890 F. Supp. at 872, is, as noted

by the district court, "factually unfounded." Id.

-18-

Tr. at 137 (Testimony of Wusk), states the common sense, lay understanding

of the term. See, e.g., Webster's II New Riverside University Dictionary

81 (1984) (defining "advocacy" as "[a]ctive support, as of a cause");

Webster's Ninth New Collegiate Dictionary 59 (1986) (defining "advocacy"

as "the act or process of advocating: support"). That this phrase is

5

sufficiently concise is demonstrated by the consistency with which it was

interpreted: there was no evidence presented that any of the groups allowed

to use the NDSS office attempted to promote issues or causes, just as there

was no credible evidence that FAIR intended to do anything else.6
 By contrast, FAIR did not wish to provide any sort of

7

services or products to the welfare recipients, nor did it wish to

hire them as employees. Rather, FAIR wished to supply these

welfare recipients with political opinions, and with the

opportunity to act as a second-party lobbying arm of FAIR.

-19-

As the district court noted, the regulation is "clear and simple."

FAIR, 890 F. Supp. at 875 n.14. A "direct benefit," under the parameters

of the policy, requires that a concrete good or service, including

educational or employment opportunities, go directly to welfare recipients

and their families. Under consistent NDSS practice, only groups offering

such tangible goods, educational or employment opportunities, or volunteer

services directly to welfare recipients or their families have been allowed

to access the lobby. 

7

Finally, I can perceive no vagueness or ambiguity in the phrase

"basic needs." Wusk, through his testimony and the materials he approved

for the bulletin board, provided specific examples of these basic needs:

employment, nutrition, shelter, clothing, education for children and

adults, tax assistance, and essential household appliances. Rather than

arguing that NDSS misapplied the policy in this case or suggesting that

FAIR meets any comparable basic need, the majority implies that Wusk erred

in other applications of the policy by considering the opportunities

provided by the Lincoln Children's Museum as meeting a basic need and in

concluding that, as a hypothetical example, CPR training did not. See Maj.

Op. at 6. I believe that Wusk, a welfare assistance service provider with

over two decades of experience, may well have a better notion of what

constitutes a "basic need" for Nebraska welfare recipients than does a

panel of federal judges. See Trial Tr. at 133 (Testimony of Wusk) (stating

that visiting children's museum "allows families to deal with some of the

stress that is maybe going on, and low income families [have] very, very

few opportunities sometimes to take advantage of some of those cultural

things, and this is the way that we do it"). Cf. New York City
-20-

Unemployed & Welfare Council v. Brezenoff, 742 F.2d 718, 723 (2d Cir. 1984)

(Welfare agency "has much more experience managing welfare offices than the

courts have and must be given some discretion in determining what its

interests are and how best to further them."). In any event, a

disagreement over whether allowing impoverished children to access a

children's museum meets a basic psychological or educational need hardly

renders a policy vague.

These phrases, taken separately, are not vague, and they are even

less so when considered as a whole, in light of the purpose of the policy

and in the context of a welfare office. The NDSS office neither

"formulates or debates public policy," FAIR, 890 F. Supp. at 863, but

rather provides "a broad range of services to welfare recipients," id. The

purpose of "the policy was to minimize the numbers of groups allowed access

[to the office] as much as possible," id. at 865 (quotations and citations

to record omitted), in order to limit congestion in the lobby and to ensure

the dignified treatment of NDSS clients by not "forc[ing] NDSS customers

to encounter individuals promoting a particular political point of view in

order to obtain the necessities of life," id. at 866. Under these

circumstances, the clauses in the policy are sufficiently well-defined, as

is demonstrated by the consistency with which the policy has been applied.

I must echo the Supreme Court in concluding that the provisions of this

policy, while they "may not satisfy those intent on finding fault at any

cost, they are set out in terms that the ordinary person exercising

ordinary common sense can sufficiently understand and comply with, without

sacrifice to the public interest." Letter Carriers, 413 U.S. at 579. 

IV.

Because the NDSS policy is not vague, it is necessary to determine

whether, as applied, the policy is unconstitutional. 
 Although declining to analyze the forum involved in this

8

case, the majority, citing to McIntyre v. Ohio Elections Comm'n,

115 S. Ct. 1511 (1995), seems to suggest that a heightened standard

of scrutiny should apply to NDSS's policy because FAIR wished to

engage in "core speech." See Maj. Op. at 10-11. McIntyre,

however, did not involve the regulation of speech in a nonpublic

forum, but rather a general prohibition on anonymous political

advertisements. See McIntyre, 115 S. Ct. at 1514-15 n.3 (quoting

statute). In a nonpublic forum, "core speech" may be regulated,

and prohibited, so long as the regulation is reasonable and

viewpoint neutral. See, e.g., Greer v. Spock, 424 U.S. 828, 838

(1976) (there is "no generalized constitutional right to make

political speeches or distribute leaflets at" a nonpublic forum).

-21-

While I agree with the district court and the majority that FAIR wished to

engage in expressive conduct generally protected by the First Amendment,

this determination only begins an analysis of whether the First Amendment

was violated by the NDSS office's policy.8

It is fundamental that the "existence of a right of access to public

property and the standard by which limitations upon such a right must be

evaluated differ depending on the character of the property at issue."

Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983).

In Perry, the Supreme Court described three categories of public fora. In

traditional public fora, such as streets and parks, expressive rights

receive the greatest degree of protection:

In places which by long tradition or by government

fiat have been devoted to assembly and debate, the rights

of the State to limit expressive activity are sharply

circumscribed. . . . [In] public forums, the government

may not prohibit all communicative activity. For the

State to enforce a content-based exclusion it must show

that its regulation is necessary to serve a compelling

state interest and that it is narrowly drawn to achieve

that end. The State may also enforce regulations of the

time, place, and manner of expression which are contentneutral, are narrowly tailored to serve a significant

government interest, and leave open ample alternative

channels of communication.
-22-

Id. at 45 (citations omitted). See also International Soc'y for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79 (1992) (describing

categories of fora). The second category of fora, the designated public

forum, "consists of public property which the State has opened for use by

the public as a place for expressive activity." Perry, 460 U.S. at 45.

So long as the state maintains a forum that is generally open to the

public, it is "bound by the same standards as apply in a traditional public

forum," id. at 46, and a "content-based prohibition must be narrowly drawn

to effectuate a compelling state interest," id. See also Cornelius, 473

U.S. at 800 ("[W]hen the Government has intentionally designated a place

or means of communication as a public forum speakers cannot be excluded

without a compelling governmental interest.").

The third category of fora, the nonpublic forum, consists of all

other public property. See Lee, 505 U.S. at 678-79. "Public property which

is not by tradition or designation a forum for public communication is

governed by different standards." Perry, 460 U.S. at 46. These standards

reflect the recognition that

the First Amendment does not guarantee access to property

simply because it is owned or controlled by the

government. In addition to time, place, and manner

regulations, the State may reserve the forum for its

intended purposes, communicative or otherwise, as long as

the regulation on speech is reasonable and not an effort

to suppress expression merely because public officials

oppose the speaker's view. As we have stated on several

occasions, the State, no less than a private owner of

property, has power to preserve the property under its

control for the use to which it is lawfully dedicated.

Id. at 46 (quotations and citations omitted). See also Cornelius, 473 U.S.

at 799-800 ("Nothing in the Constitution requires the Government freely to

grant access to all who wish to exercise their right to free speech on

every type of Government property without regard to the nature of the

property or to the disruption that
 Lee held that a public airport is not a traditional or

9

designated public forum, and upheld a ban on solicitation. See 505

U.S. at 683, 685. In International Soc'y for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 830, 831 (1992) (per curiam)

(Lee II), a companion case to Lee, the Court held that a ban on the

distribution of literature in the airport was nevertheless

unconstitutional, and relied by reference on various concurring and

dissenting opinions in Lee, which had disagreed with the majority's

-23-

might be caused by the speaker's activities."); Greer v. Spock, 424 U.S.

828, 836 (1976) ("The guarantees of the First Amendment have never meant

that people who want to propagandize protests or views have a

constitutional right to do so whenever and however and wherever they

please.") (quotations and citation omitted).

In distinguishing between a traditional public and designated public

fora, the Court in Lee explained that a traditional public forum has

immemorially been held in trust for the use of the public

and, time out of mind, [has] been used for purposes of

assembly, communicating thoughts between citizens, and

discussing public questions. . . . [A] traditional public

forum is property that has as a principal purpose . . .

the free exchange of ideas.

505 U.S. at 679 (quotations and citations omitted). By contrast, a

designated public forum is public property where the government

intentionally allows discourse. The Lee Court explained that

consistent with the notion that the government--like

other property owners--has power to preserve the property

under its control for the use to which it is lawfully

dedicated, the government does not create a public forum

by inaction. Nor is a public forum created whenever

members of the public are permitted freely to visit a

place owned or operated by the Government. The decision

to create a public forum must instead be made by

intentionally opening a nontraditional forum for public

discourse. . . . [T]he location of property also has

bearing because separation from acknowledged public areas

may serve to indicate that the separated property is a

special enclave, subject to greater restriction.

Id. at 679-80 (citations and quotations omitted).9
forum analysis.

In the instant case, the district court undertook an analysis

of the forum under the tests enunciated by the majority in Lee as

well as the principle concurrence, and concluded that the result--

that the NDSS local office lobby was a nonpublic forum--was the

same under both. See FAIR, 890 F. Supp. at 868-74. I agree with

the district court that either test would achieve the identical

result, and I agree that the Court could have been clearer in its

directives in this area. See, e.g., AIDS Action Comm. of Mass. v.

MBTA, 42 F.3d 1, 9 (1st Cir. 1994) (describing "the relatively

murky status of the public forum doctrine"); Jacobsen v. United

States Postal Serv., 993 F.2d 649, 655 n.2 (9th Cir. 1992) (noting

that, as a result of the Lee and Lee II decisions, "the

jurisprudence in this area is now quite muddied"). I believe,

however, that the district court's duplication of effort was

unnecessary. Chief Justice Rehnquist's opinion in Lee, which

clearly set out the mechanics of forum analysis, commanded a

majority of the Court, and Lee II in no way overruled its companion

case. Because of this, I will only apply the majority test from

Lee.

-24-

FAIR does not contend that the NDSS office is a traditional public

forum, see Appellant's Br. at 31 ("plaintiffs agree that the lobby of the

Lancaster County Office of the Nebraska Department of Public Services is

not a traditional public forum"), and I agree. There was no evidence

presented that the NDSS office has traditionally been used for public

expression and, rather than having as a principal purpose the free exchange

of ideas, the NDSS office is used to distribute "a broad range of services

to welfare recipients." FAIR, 890 F. Supp. at 863.

Nor has the NDSS office been intentionally opened to public

discourse. There was no evidence presented that the NDSS office has a

policy of free access for expressive activities. Rather, as found by the

district court, NDSS's "policy was to resist opening the waiting/reception

area 'up for the world.' [Trial Tr. at 120.] In fact, the policy was to

'minimize the numbers of groups' allowed access 'as much as possible.'

[Trial Tr. at 150-51.]" FAIR, 890
 While at trial there was some testimony that a group of Girl 10

Scouts had, several years before, used the NDSS office when it was

housed in a different building, see Trial Tr. at 82 (Testimony of

Stippel), the district court found that "Wusk specifically denied

allowing the Girl Scouts access to the waiting/reception area to

hand out materials." FAIR, 890 F. Supp. at 866 n.4. The majority,

while criticizing the district court, see Maj. Op. at 4-5 n.2,

fails to discern clear error in this finding. Because "[t]he

government does not create a public forum by inaction or by

permitting limited discourse, but only by intentionally opening a

nontraditional forum for public discourse," Cornelius, 473 U.S. at

802, the alleged presence of the Girl Scouts is largely irrelevant

to this analysis.

 In Greer, the Supreme Court held that a military base was not 11

a designated public forum, and that a prohibition on political

campaigning on the base was reasonable. In reaching this decision,

the Court explained:

The fact that other civilian speakers and

entertainers had sometimes been invited to appear

at Fort Dix did not of itself serve to convert Fort

Dix into a public forum or to confer upon political

candidates a First or Fifth Amendment right to

conduct their campaigns there. The decision of the

military authorities that a civilian lecture on

drug abuse, a religious service by a visiting

preacher at the base chapel, or a rock musical

concert would be supportive of the military mission

of Fort Dix surely did not leave the authorities

-25-

F. Supp. at 871. FAIR contends, however, that in allowing groups like Head

Start to distribute materials at the office, NDSS necessarily created a

designated public forum. I disagree.

"[A] practice of allowing some speech activities on [government]

property do[es] not add up to the dedication of [government] property to

speech activities." United States v. Kokinda, 497 U.S. 720, 730 (1990)

(plurality opinion). The only groups allowed access to the NDSS office,

"[j]ust like NDSS, . . . provided basic social services to welfare

recipients." FAIR, 890 F. Supp. at 871. Where "government property is

10

not dedicated to open communication the government may--without further

justification--restrict use to those who participate in the forum's

official business." Perry, 460 U.S. at 53 (note omitted).11
powerless thereafter

to prevent any civilian from entering Fort Dix to speak on any

subject whatever.

424 U.S. at 838 n.10.

-26-

Because the "providers of information on nutrition and the like were

participating with the agreement of welfare officials in the welfare

office's official business--the provision of basic social services to

welfare recipients . . . the use of the property by groups such as the

county extension agency providing nutritional information does not

transform the property into a public forum." FAIR, 890 F. Supp. at 872.

I must therefore agree with the district court that the NDSS office was not

a designated public forum.

V.

Because the NDSS office was neither a traditional public forum nor

a designated public forum,

the regulation at issue must be analyzed under the

standards set forth for nonpublic fora: It must be

reasonable and not an effort to suppress expression

merely because public officials oppose the speaker's

view. Indeed, control over access to a nonpublic forum

can be based on subject matter and speaker identity so

long as the distinctions drawn are reasonable in light of

the purpose served by the forum and are viewpoint

neutral. The Government's decision to restrict access to

a nonpublic forum need only be reasonable; it need not be

the most reasonable or the only reasonable limitation.

Kokinda, 497 U.S. at 730 (quotations and citations omitted; emphasis in

original). See also Perry, 460 U.S. at 49 ("Implicit in the concept of the

nonpublic forum is the right to make distinctions in access on the basis

of subject matter and speaker identity. These distinctions may be

impermissible in a public forum but are inherent and inescapable in the

process of limiting a nonpublic forum to activities compatible with the

intended
 Wusk described the conditions of the NDSS office, and the

12

concerns over congestion:

We also have large groups of people at different

times during the month. The first five working

days are usually very hectic. In the first three

working days, for instance, in March, we over-thecounter issued to about 1,920 households. That's

for sure at least one individual, but many people

don't come just by [them]selves. They come with

children, they may come with a significant other,

they may come with a grandparent and so the 1,920

[households are] really magnified by many other

people. Also, we do business on those days'

business, meaning that we do . . . quarterly

reviews, six-month reviews, yearly reviews,

depending on what program you're in and how you're

set up. These continue on an ongoing basis, plus

we have new applicants

that walk in on a daily basis wanting to apply for food stamps or

ADC or one of the other programs, so it becomes a high traffic

area, so we have taken a look and said we are not really wanting to

-27-

purpose of the property. The touchstone for evaluating these distinctions

is whether they are reasonable in light of the purpose which the forum at

issue serves."). In addition, "[c]onsideration of a forum's special

attributes is relevant to the constitutionality of a regulation since the

significance of the governmental interest must be assessed in light of the

characteristic nature and function of the particular forum involved."

Kokinda, 497 U.S. at 732 (quotations and citations omitted). 

A.

The NDSS office's policy in this case is clearly reasonable. The

official business of the NDSS office is to provide services to welfare

recipients. See FAIR, 890 F. Supp. at 872. In light of this official

business, it is reasonable for NDSS to allow access to the office to groups

which provide direct benefits which meet welfare recipients' basic needs,

because this allows NDSS to fulfill its mission. It is also reasonable for

NDSS to prohibit access by all other groups, because this prevents

congestion. Cf. Lee, 505 U.S. at 683-84 (restriction on solicitation

reasonable because it limits disruption). Similarly, a prohibition of 12
open it up for the world.

Trial Tr. at 120.

 FAIR intended to engage in a totally different type of

13

expressive activity than that practiced by the groups allowed

access to the NDSS office. As found by the district court, "one

type of speech is intended to persuade on issues of public policy,

while the other is intended to convey factual information on basic

human needs totally unrelated to public policy." FAIR, 890 F.

Supp. at 872. These different types of speech could have, as noted

by the district court, different impacts on the NDSS office:

Stippel testified that when she engaged in [FAIR's]

proposed expressive activity on the sidewalk in

front of the building where NDSS was situated, she

encountered "problems" when "we gave the

information to somebody that didn't agree with our

side," which in turn caused "heavy discussions."

[Trial Tr. at 89.] It is inconceivable that the

provision of information about recipes, how to fill

out tax form 1040-EZ, or how to register for a

prekindergarten or GED program would cause a

"problem" involving a "heavy discussion."

Id.

-28-

expressive activities by advocacy groups is also reasonable; NDSS's

"position as a government controlled and financed public facility, used

daily by thousands of people, ma[kes] it highly advisable to avoid the

criticism and embarrassments of allowing any display seeming to favor any

political view." Lebron, 69 F.3d at 658 (upholding AMTRAK's restriction

on political advertisements as reasonable). Finally, NDSS's prohibition 13

on advocacy groups is also reasonable as an effort to treat NDSS clients

with dignity and to prevent their coercion. As found by the district

court, 

In this case, the waiting/reception area is filled

with some of the most underprivileged in our society

seeking benefits from the state for the most basic

necessities of life. . . . [T]hese waiting/reception

areas are not public or limited public forums but are,

indeed, but holding stations for the most pitiful captive

audiences in our country.
 Wusk testified regarding the need to preserve the dignity of 14

NDSS clients:

When customers come to the Department of Social

Services to apply for ADC or food stamps or

Medicaid, in Lancaster County, at least, they have

no other choice. We are the only office that

offers those types of services. We do very few

applications external to the [local office]. So

when those folks come, they are a captive audience.

We really believe that we need to treat them with

dignity and treat them with respect, and I can

require, within my office, my staff to do that,

and, in fact, I make it mandatory. There is no

exception to that. When they come, I believe they-

-that our customers have expectations that they

should not have to go through a large group of

people [sitting] wanting to give them information

because they usually come with very specific

reasons in mind. I need food, I need shelter, I

need clothing, I need medical, and when we start to

put large groups or other groups in there offering

literature and those kinds of things, it's easy to

infringe on my customers' rights.

Trial Tr. at 119-20.

-29-

These individuals--some of whom need protective

services because of mental impairments, and all of whom

need state assistance for some or all of the necessities

of life--are peculiarly susceptible to coercion, whether

subtle or overt, regarding, among other things, publicpolicy issues. This is true both because of the welfare

recipients' unfortunate stations in life and because of

the captive nature of their attendance at the welfare

office.

FAIR, 890 F. Supp. at 873-74 (quotations and citation omitted). See also

Brezenoff, 742 F.2d at 722 (welfare recipients "may well be peculiarly

susceptible to verbal misrepresentations, whether because of the noisy and

crowded atmosphere of [a welfare office] lobby, language barriers, or even

a misperceived need to do anything necessary to ensure the receipt of

welfare checks or to lessen the wait in [the welfare office]").14
-30-

The reasonableness of NDSS's policy is further supported because

there are "substantial alternative channels that remain
-31-

open" to FAIR to disseminate its message. Perry, 460 U.S. at 53. FAIR has

access to the sidewalks outside of the building housing the NDSS office,

see FAIR, 890 F. Supp. at 876, as well as other public fora. Although FAIR

would undoubtedly prefer the opportunities presented by a captive audience

in the NDSS office, "[t]he First Amendment does not demand unrestricted

access to a nonpublic forum merely because use of that forum may be the

most efficient means of delivering the speaker's message." Cornelius, 473

U.S. at 809.

B.

There is no clear error in the district court's finding that NDSS's

policy "is not an effort to suppress the speaker's activity due to

disagreement with the speaker's view." FAIR, 890 F. Supp. at 877 (quoting

Lee, 505 U.S. at 679). As noted by the district court,

The evidence establishes without contradiction that Wusk

enforced the regulation without regard to whether he

agreed or disagreed with the message of the speaker.

[Trial Tr. at 134.] In fact, the evidence establishes

that Wusk enforced the regulation against a group he

belonged to and supported. [Trial Tr. at 140.]

Id. While the NDSS policy's prohibition of access to the NDSS office by

outside advocacy groups does distinguish on the basis of message content,

this is not synonymous with viewpoint discrimination. The Supreme Court

has held that 

in determining whether the State is acting to preserve

the limits of the forum it has created so that the

exclusion of a class of speech is legitimate, we have

observed a distinction between, on the one hand, content

discrimination, which may be permissible if it preserves

the purposes of that limited forum, and, on the other

hand, viewpoint discrimination, which is presumed

impermissible when directed against speech otherwise

within the forum's limitations.
 Similarly, NDSS's restrictions on FAIR's access to the NDSS 15

office's bulletin boards was reasonable. As found by the district

court,

The fact is that space on the bulletin boards is

quite limited as they are small. [Trial Tr. at

132.] Indeed, in the photos introduced into

evidence, the bulletin-board space appears almost

entirely devoted to social- service notices. (Ex.

1, Prelim. Hr'g (photos)). Consequently, if they

honored Plaintiffs' request, Defendants [NDSS]

would undoubtedly be confronted with similar

requests by other advocacy groups, resulting . . .

in lurking doubts about favoritism, and sticky

administrative problems in parceling out limited

space to eager politicians.

FAIR, 890 F. Supp. at 876 (quotations & citation omitted).

-32-

Rosenberger v. Rector & Visitors of Univ. of Va., 115 S. Ct. 2510, 2517

(1995).

The NDSS policy allowed expressive activities which provided a direct

benefit meeting welfare recipients' basic needs. The content of FAIR's

message was political advocacy--a type of speech not allowed by NDSS's

policy. Because FAIR's viewpoint was irrelevant to the decision to

disallow its access to the NDSS office, there was no viewpoint

discrimination. Because the NDSS policy is otherwise reasonable, the

policy does not violate the First Amendment.15

VII.

Because FAIR has no First Amendment right to access the NDSS office,

its equal protection argument must fail unless FAIR can show that it is

similarly situated to those groups allowed access. See Perry, 460 U.S. at

54-55. Because FAIR is an advocacy group which does not provide a direct

benefit which meets welfare recipients' basic needs, it is not similarly

situated to those groups allowed access to the NDSS office. NDSS has

therefore not violated FAIR's right to equal protection in this case.
-33-

VIII.

Because the NDSS office is a nonpublic forum, and the policy

regulating expressive activities in the NDSS office is reasonable, not

based on viewpoint, and not vague, I would affirm the district court. In

reversing the district court, the majority has usurped the fact-finding

function of the district court, misapplied the law, and opened a nonpublic

forum to the world at large. I dissent.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.