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 organi zation brought this action under 42 U.S.C. §§ 1983 and 1988 to gain access to the lobby of a state-operated , wel fare office for the purpose of distributing written materials to an d discus sing welfare policy issues with welfare recipients. The distric t court held that the state's exclusion of the group did not violate th e First or Fourteenth Amendment. We reverse. The policy employed to decide which per sons are permitted access to the lobby is vague and subject t o arbitrary enforcement. For this reason, the group's exclusion violates th e First Amendment.

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

### The organization's two staff members, Sheryl Walker and Vick i Stippe l, are the other named appellants in this case. Each is a welfare recipient who, for her work on behalf of FAIR, receive s "scholarships" in lieu of a salary. FAIR , 890 F. Supp. at 863

. FAIR f inances its activities under a grant from a charitabl e organi zation. The director of the Nebraska Center for Lega l Services (a special project of the Legal Aid Society, Inc. o f Omaha) oversees the grant and advises FAIR with respect to th e conditions of the grant and long-term organizational strateg y. The primary limitation on the funds is that the money may not be used for politi cal purposes. As a result, FAIR does not engage i n activities related to partisan politics or in the direct lobbying of elected officials. (Tr. 42:4-17.) Nonetheless, the dissent attem pts to present FAIR as a highly political organization both registered as a lobbyist with th e state and "allied . . . with various organizations, including th e Ne braska Women's Political Network, the National Organization o f Women, and the Nebraska Democr atic Women . . . ." Dissenting Op., infra at 2. As found by the district court, FAIR was not a regis tered lobbyist when this case went to trial. FAIR , 890 F

. Supp. at 862. FAIR briefly registered with the State of Nebraska as a lob byist out of "an excess of caution," (Tr. 39:13-14), an d soon withdrew its application for registration after determining, with the assistance of the staff of the Accountability and
-2- I. BACKGROUND

The fac ts of this case are essentially undisputed. After a consol idated bench trial and hearing on a request for preliminar y injunction, the distr ict 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 loosely

organi zed group of past and current welfare recipients providin g educational support for low-income persons. Among its goals, FAIR seeks "to m ore fully inform the public discussion and debate on the 'welfar e system' and 'welfare reform.'" FAIR , 890 F. Supp. at 862 (quoting Pls.' Ex. 3, Funding Proposal at 1). 1

### Disclo sure Commission, that FAIR was not a lobbyist (Tr. 39:19

-

40:22). Moreover, the extent of FAIR's affiliation with political organi zations was its co-sponsorship of a rally at the stat e capital. The rally was also sponsored by various day car e providers; those day care prov iders certainly were not transformed into political groups by their mere association with the ral ly. In any e vent, our decision turns on the policy used by the welfar e office to distinguish between organizations appealing to use th e facilities, not on the exact nature of FAIR's political leanings.
-3- The Nebra ska Department of Social Services (NDSS) is a state agency that p rovides assistance to low-income individuals and families. NDS S maintains both a local office and a central office in Lincoln, Nebraska. Daryl Wusk is the adm inistrator 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 . . . lik e food stamps and AFDC and Medicaid, but we also are

a compl ete service office that has child welfare and adult protectiv e services and the whole menagerie, if you will, o f 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 o wned and managed by a private company. The building management will not a llow FAIR or any other group to distribute materials in th e common areas of the building. Within the local NDSS office is a large, enclosed waiting and reception area (hereinafter "lobby"). Th e lobbyis a high-traffic area of the local NDSS office. Id. It i s especiall ybusy during the first five days of the month when the agenc y issues foo d stamps to over 1,920 households "over the counter" in th e recepti on area. Id. Throughout the month, the lobby is used by peopl e waiting to receive fo od stamps as well as by clients waiting to meet with NDSS personnel in adjoining interview rooms.

ND SS has no agency policy for dealing with requests from outsid e groups to distribute information or otherwise engage in

### Stippel testified that, in addition to th e listed groups, she 2 

### had se en Girl Scouts using the lobby of the local NDSS office i n the past. (Tr. 80:23-81:7.) The district court, however, c redited Wusk's testimony whereby he "s pecifically denied allowing the Girl Scouts access to the [lobby] t o hand out materials." 890 F. Supp. at 866, n.4. Wusk's actual testimony illustrates not only h is poor memory o f this matter, but also some of the problems inherent i n enforcing a policy like Wusk's:

A. [Wusk:] We have probably had Girl Scouts o n the premises, but I don't beli eve 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 c ome in to see the office and do little mini tours an d things, but they may have come that way, but I don't remember that
-4- speech activity on ND SS 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 "t o 'mi nimize the numbers of groups' allowed access 'as much as possible.' " Id. at 865 (quoting Tr. 120:21-22, 150:15-151:3). Wusk explained tha t restrictions are necessary to prevent administra tive difficulties, such as congestion, and to ensure that his clients are treated with dignity and no t forced to encounter individuals promoting a particular political agenda. Id. at 866. Specific ally, 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 positio n advocated by the group. Id.

Over the years, Wusk has received numerous requests from group s seeking access to the lobby. Wusk has granted the requests of four groups : (1) volunteers who assisted welfare recipients i n the preparation of state and fed eral income tax returns, (2) representatives of the Head Star t Progra mwho registered children of welfare recipients for the preschoo l progra m, (3) representatives of a food and nutrition program wh o distributed literature and recipes, and (4) pers ons who registered welfare reci pients for GED and English-as-a-second-language courses at a loca l 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 t able] in the office area at sometime withou t your knowledge? A. That is possible. Q. Had you known that the Girl Scouts wanted t o co me on the premises and access clients for th e purpose of soliciting membership, would you hav e allowed that to happen?
A. No. (Tr. 124:16-125:4.) Althoughthe district court might have been more accurate had i t characterized Wusk as having denied that he remembered giving the group access, we do not disturb the court's factual finding tha t the Gi rl Scouts were never permitted to distribute materials o r solicit membership in the lobby.
-5- for access to the lobby by groups and institutions including a Wesleya n Universitysocial 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 determ ine whether an entity making a request to use the lobby is an advocacy group--and thus excludable--Wusk exp lained that either a group would self-identify as an advocacy group or he would review the group' s literat ure to make a subjective determination about the nature of th e 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 "advocac y 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

### -6-

explained that food, clothing, and shelter certainly qualify; in the same senten ce, however, he asserted that even the Lincoln Children's Museu m "addresses a psychological need" consistent with his agency's commitment to "deal with child w elfare 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 l ive long and healthy [lives] without CPR training." (Tr. 135:22

- 136:14.)

In Januar y 1995, Stippel telephoned Suzy Skinner, Wusk's assistant, and requested permission to have one or two FAIRmembers 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 writte n materials included: (1) a brochure that explains what FAIR is, the group' s goals, and the policy issues FAIR seeks to addre ss; (2) a flier announcing an upcoming Valentine's Day rally at the state c apitol to "Stop the War on Poor Children" co-sponsored by FAIR; and (3) a postcard designed fo r welfare recipients to send to their elected representatives in the names of their children urging support for measures to assist families in gettin g off welfare. After reviewing the materials, Skinner indicated that she di d not think that there would be any problem but that she would have t o discuss the matter with Wusk. 890 F. Supp. at 8 64-65. Wusk then reviewed the materials and denied FAIR's request to use the lobby. Wusk stated tha t FAIR did not provide a direct benefit to NDSS clients. Id. at 865.

On February 1, 1995, despite Wusk's decision, representatives fro m FAIR came to the lobby to talk to welfare recipients and to distribut e information. Skinner again informed the group that it was not permitted to use the lobby. Du ring this conversation, Skinner asked whether FAIR's announcement about the upcoming rally could be placed on the bulletin boar d in the lobby. Id. Wusk, through Skinner, subsequently informed FAIR it would not be allowed

### -7-

to d isplay the announcement on the bulletin board because it did no t provide a direct benefit to welfare recipients. Id. After being informed that they would not b e allowed to remain in the lobby, all members of the group left voluntarily without causing a disturbance.

FAIR brou ght this civil rights action pursuant to 42 U.S.C. §§ 1983 and 1988 alleging that the defendants violated their First Amendment right s to free speech and free association and their Fourteenth Amendment right to equal protection by denying them access to th e lobby where other groups had been allowed to engage in similar activity. After a hearing, th e district court decided in favor of the defendants. The court held that th e lobbywas 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 expressio n because of opposition to the speaker's views. The court concluded that th e NDSS prohibition was reasonable because it sough t to maintain the lobby as

a p lace where social services are dispensed as opposed to a place fo r 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 challeng es 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 onl y 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 , 99 4 F.2d 570, 574 (9th Ci r.) (noting that review of First Amendment questions is de novo because th ey present mixed questions of law and fact requiring the appellate court to apply principles of First

### -8-

Amendment jurispruden ce 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 offic e lobby was constitutional, the district court relied heavily on it s determination that the welfare office lobby was not a public forum. FAIR , 890 F. Supp at 871. Having made that determinat ion, the court disposed of the remaining questions--whether the prohibitionwas reasonable and not an effort to suppress the speakers' activity due to disagreement with their views- -in relatively short order. In this case, however, th e constitutionality of FAIR's exclusion from the w elfare office turns not on the labeling of the forum, but on an analysis of the policy. We hold that the policy on its fac e violates the First Amendment under even the leastexacting reasonableness standard applicable to nonpublic forums. See Perr y Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 45-46 (1983 ) (d elineating three categories of public property and each category' s
corres ponding standard of review). The welfare office policy i s
unre asonable because it permits state officials to apply impermissibl y vague criteria to dis tinguish between persons or groups seeking to engage in expressive activity in the lobby. See NAACP Legal Defense & Educ

. Fund, , 504 F. Supp. 1 365, 1367 (D. D.C. 1981) (holding that a requirement that a charity provid e "direct services" is too vague a basis on which to dist inguishbetween groups for participation in a federally-sponsored , fund-raising campaign ). Therefore, we reverse the district court without engaging in an exhaustive forum analysis and lea ve 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 i t unnecessary to reach public forum question where regulation prohibiting al l First Amendment activ ities in airport was facially unconstitutional under overbreadthdoctrine); Lebron v. National R.R. Passenger Corp. (AMTRAK) , 74 F.3d 371, 372 (2d Cir. 1996) (C.J. Newman, dissenting) ("[N]o matte r what the scope of the forum, a governmental entity

### -9-

vio lates the First Amendment when it bars display of political message s pursuant to a 'policy' that [is] vague, unwritten, unclear to those wh o
mu st administer it, and inconsistently applied."), denying reh'g an d 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 bythe policy. On the contrary, the terms are elastic. As demonstrated by Wusk's own testimony, it is difficult to define the terms and nearl y impossible to apply them consistently. We disagree with the dissent' s conte ntion that Wusk's policy has been consistently interpreted an d applied, Dissenting Op., infra at 7. For example, we see no basis for a bright-line distinction between Head Start--a group that provides preschoo l education and socialization opportunities for poor children--and FAIR--a group th at educates welfare recipients and gives them the tools t o und erstand and participate in the legislative process as it pertains t o welfare reform. Both provide a benefit to welfare recipients, and both ar e motivated by a desire to improve the basic living conditions of the least privileged in our society. Moreover, both are a rguably advocacy groups in that both "promote issues." We discuss applicat ion of the policy to other groups not to imply t hat Wusk committed any particular error, but instead to highlight that the policy necessarily requires arbitrary line drawing and yields inconsistent results.

If a gove rnmental policy restricts protected expressive conduct, it will withstand constitutional scrutiny only if it is clear and consistentl y applied

. NAACP Legal Defense & Educ. Fund v. Campbell , 504 F. Supp. a t 1367. Two particular policies underlie this vagueness doctrine: (1) the need for notice informing those subject to a policy of its meaning, and (2 ) provi ding officials with explicit guidelines to avoid arbitrary an d discriminatory enforcement. Id. The state policy fails on both

### -10-

counts. The policy f ails 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 ha s received a virtually open-ended interpretation, is self-evident." ) (citations omitted).

The dan gers 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 ou t leaflets in the advocacy of a politically controversial viewpoint [] is th e
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. d enied , 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 an d facilitate their involvement in welfare reform. To that end, FAIR wants to pro vide information to welfare recipients about the current welfare

reformdebate and about the possible impacts of proposed legislativ e changes. It is well established that:
[d]iscussionof public issues . . . [is] integral to the operation of the system of government established by our Constitution. The First Amendment affords the broades t prote ction to such political expression in order "t o assur e [the] unfettered interchange of ideas for th e bringing about of political and social changes desired by th e people." Roth v. United States , 354 U.S. 476, 48 4 (1957). Although the First Amendment p rotections are not confi ned to "the exposition of ideas," Winters v. Ne w York , 333 U.S. 507, 510 (1948), "there is practicall y universal agreement that a major purpos e of the Amendment was to protect the free discussion to governmenta l affairs

. . . ." Mills v. Alabama , 384 U.S. 214, 21 8 (1966). This no more than reflects our "profoun d national commitment to the principle that debate on

### -11- public issues should be uninhibited, robust, and wide

open." 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 particularlyproblematic in view of the fact that the policy was used to prevent FAIR from engaging in core speech.

By reje cting the approach used by the local NDSS office to contro l access to its lobby, we do not preclude all rest rictions 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 undu e annoyance. Safety and over-crowding also present legitimate administrativ e
concerns. Although the policy under consideration may be well-intended, its stan dards are vague and it creates a substantial potential fo r arbitr aryand discriminatory application. It follows that the polic y cannot withstand First Amendment scrutiny. Therefore, we reverse th e decision of the district court.

MAGILL, Circuit Judge, dissenting.

I respectfully dissent. Because I conclude that the Nebrask a Departm ent of Social Services' Lancaster County local office's (NDSS ) policy on expressive activities by outside groups is not unconstitutionall y vague, and that the d istrict court correctly determined that (1) the NDSS office is not a public forum; (2) the NDSS's regulation of expressiv e cond uct in the office is reasonable; and (3) the NDSS prohibition o n Families Achieving Independence and Respect's (FAIR) efforts to advocate their position to a captive audience was not motivated by opposition t o their viewpoint, I would affirm the district court.

### The bulletin boards contained information regardin g 3 

### nutrition, health, housing, He ad Start registration, volunteer tax assi stance, a "parent's center" at the YWCA, employment an d employment training opportunities, free stoves from a rent-to-own company, free admissions or family membershi ps to the Lincoln Children's Museum, and en rollment in "Tele-Care," a service offered by the Lincol n Ge neral Hospital to ensure participants' well-being on a dail y basis. See Def. Ex. 1. I.

During the first five days of each month, the NDSS office in Li ncoln, Nebrask a, is "especially busy because food stamps are issued to 1,92 0 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 no t fo rce NDSS customers to encounter individuals promoting a particula r 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 o ffice, created a "general policy of keeping the waiting/receptio n area [of the NDSS office] closed." Id. at 865. This policy provided that

(a) "advocac y groups," regardless of whether Wusk agreed or disagreed with the group's message, were never allowed acc ess to the waiting/reception area for advocac y purpo ses; and (b) only groups that provided a "direc t benefit" associated with the "basic needs of ou r cus tomers" were allowed access to the waiting/receptio n area.

Id. at 865 -66 (citations to record omitted; note omitted). A simila r policyapplied to the bulletin boards located in the office. See id. at 866-67.

The dist rict court found that, "[o]ver the years, only four group s had been allowed access to the waiting/receptionarea in order to hand out materials to welfare recipients." Id. at 866. These groups provide d nutrition information, registration in GED and ESL adult education courses , regist ration in Head Start prekindergarten classes, and voluntee r assistance with state and federal tax forms. By contrast, other groups, 3 such as social work

### -13-

classes, right-to-life groups, and "Mad Dads" (agroup which Wusk belonged to and otherwise supported) were consistently de nied access to the office.

In January 1995, FAIR sought access to the office to advertise a n upc oming rally at the Nebraska state capitol. FAIR, which had been a registered lobbyist in the State of Nebraska and had allied itself wit h various organizations, including the Nebraska Women's Political Network, the National Organization of Women, and the Nebr aska Democratic Women, was sponsoring the rally to "show strong, unified, grassroots opposition to th e destructi on of our nation's social safety net." Pl. Ex. 5. FAIR wa s denied access to the NDSS office's lobby and bulletin boards because it wa s
an advocacy group which did not offer a direct benefit associated with a basic need of welfare recipients.

FAIR bro ught an initial action in the district court for temporar y injunc tive relief, which was denied, and the instant action, seekin g damages and permanent injunctive relief. Following a hearing, the distric t court denied relief. In its thoughtful and well-written memorandu m op inion, the district court determined that, under several competin g Supreme Court tests, the NDSS office was not a public forum. See FAIR , 89 0 F. Supp. at 871. Because of this crucial determination, the polic y limiting expressive conduct in the office could be upheld if it wa s "reasonabl e," see id. at 874, and if the policy was not an effort t o discriminate on the basis of the speaker's viewp oint, 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.

### -14-

at 875 n.14, held that neither the plaintiffs' First Amendment nor equal protection rights had been violated. Id. at 877-78.

II.

In thi s case, the district court served as the finder of fact, an d this Court reviews th ese findings only for clear error. See Fed. R. Civ. P. 52(a). Throughout its opinion, however, the majority second-guesses th e facts fou nd by the district court, and attempts to draw its own factua l conclusions from the record in this case without initially finding clear

error. For example, in describing Head Start, one of the organization s allowed to use the NDSS office, the Majority declares:

we se e no basis for a bright-line distinction betwee n Head Start--a group that provides presc hool education and socialization opportunities for poor ch ildren--and FAIR-- a group that educates welfare recipients and gives the m the to ols to understand and participate in th e legisl ative process as it pertains to welfare reform

. Bo thprovide a benefit to welfare recipients, and bot h are mo tivated by a desire to improve the basic livin g con ditions of the least privileged in our society

. Moreover, bo th are arguably advocacy groups in that both "promote issues."

Maj. Op. a t 9. I am frankly confused by the majority's inability t o disting uishbetween a political advocacy organization and a preschoo l class: the first attempts to secure political goals by campaigning an d outreach efforts, while the other teaches infants their ABCs. The majorit y
assumes that FAIR provides a benefit to welfare recipients, but th e dis trict 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 [welfar e recipients] of the rally, they may not know abou t it"), I can find nothing in the record to supp ort such a conclusion. The majority assigns similar motivations to Head Start and FAIR, yet this description of Head

### -15-

Start' s goals is found nowhere in the record; I must assume that th e majorityis taking judicial notice (from what source, I am uncertain) of facts wh ich were not in evidence at the trial. The district court, i n 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 ma jority ignores this finding and "arguably" concludes that Head Start is, like FAIR, an advocacy group. There is not a scintill a of e vidence in the record to support this conclusion, however, and I accordingly reject it.

In additi on, the majority states that Wusk's analysis of whether an organization was an advocacy group was a "subjec tive determination." Maj. Op. at 5. Whether Wusk based his decisions on subjective or objectiv e criteria is a question of fact, and the finding made by the majority was not made by the distr ict court. In addition to usurping the fact-finding function of the distr ict court, the majority makes this assertion without eviden tiarysupport. Wusk testified that his determination was usuall y based on a group's self-identification as an adv ocacy group, see Trial Tr. at 137, w hich is clearly an objective criteria. When Wusk attempted t o provide an objective definition of "advocacy," F AIR's attorney interrupted him, and stated, "I don't care about other peopl e. I want to know how you define advocacy group." Id.

III.

Th e majority, declining to address whether the lobby of the NDS S office is, or is not, a public forum, declares the office's unwritte n policyto be vague, and therefore facially unconstitutional, because the "ess ential, interrelated terms of the policy--'direct benefit,' 'basi c needs,' and 'advocacy group'--are

### In co ncluding that the policy in this case is vague, th e 4 

### majori tyrelied on the dissenting opinion in Lebron v. Nationa l R.R. Passenger Corp. (AMTRAK) , 74 F.3d 371, 372-73 (2d Cir. 1995) ( Le bron II ) (Newman, C.J., dissenting), cert. denied , 116 S. Ct

. 1675 (1996), which argued that:

no m atter what the scope of the forum, a governmental entity violates the First Amendmen t when it bars display of politi cal messages pursuant to a 'policy' that has been fo und by a fact-finder, withabundant evidentiary support, to be vague , unwritten, undisseminated, unclear to those wh o must administer it, and inconsistently applied. (empha sis added). I note that, in this case, no finder of fact s has made these findings, with the sole exception that the polic y was unwritten. Indeed, the district court rejected FAIR's a rgument that the policy was ambiguous, see FAIR , 890 F. Supp. at 875 n.14, and found instead that the policy "was clear and simple." I d. See also i d. at 866 (describing only consistent applications of th e policy).
-16- neither self-defining nor defined by the policy." Maj. Op. at 9. See als o id. (describing these terms as "elastic"). I disagree. 4

While the NDSS office's policy is unwritten, "[t]he fact that a policyis not committed to writing does not of itself constitute a First Amendment violation," Lebron v. National R.R. Pa ssenger 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 "'well

established practice.'" Id. (quoting City of Lakewood v. Plain Deale r Publishing Co. , 486 U.S. 750, 770 (1988)). As noted by the district court ,

there was li ttle or no practical reason for Wusk (or the ot her defendants) to write a regulation since th e regulation w as clear and simple: the forum was generally closed except to welfare recipients. . . . [T]o th e extent that the policy contained an exc eption for outside groups , the exception was quite limited, and it too wa s clear and simple: only groups that provided a "direc t benefit" associated with the "basic needs of ou r customers" were allowed access to the forum.

### -17-

FAIR , 890 F. Supp. at 875 n.14.
We have held that, "[t]o survive a vagueness challenge, a statu te [or policy ] must give the person of ordinary intelligence a reasonabl e opportunity to know what is prohibited and provide explicit standards for those who apply the statute." United States v. Dinwiddie , 76 F.3d 913, 92 4 (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

the re are limitations in the English language wit h respect to b eing both specific and manageably brief, and it seems to us that although the prohibitions [here] may not sa tisfy those intent on finding fault at any cost , they a re set out in terms that the ordinary perso n ex ercising ordinary common sense can sufficientl y under stand and comply with, without sacrifice to th e public interest.

CSC v. Letter Carriers , 413 U.S. 548, 578-79 (1973) (upholding restriction s
on federal employees' political activities). See also Cornerstone Bible Church v. City of Hastings , 948 F.2d 464, 473-74 (8th Cir. 1991) (rejectin g argume nt that ordinance was impermissibly vague for failing to defin e "church," "private club," and "economic activity "); cf. Tindle v. Caudell , 56 F.3d 966, 973 (8th Cir. 1995) ("the ability t o conceive of hypothetical problematic applications does not render the rul es susceptible to an overbreadth challenge") (noting that rules which did "not precisely define wha t would constitute impermissible conduct" were nevertheless not vague becaus e "they give adequate n otice that high standards of conduct are required").

Und er these principles of common sense interpretation and well

established practice, the NDSS office's policy meets the standard set fort h in Dinwiddie . The definition of an "advocacy group" provided by Wusk, a group which "promotes an issue," Trial

### In Co rnelius v. NAACP Legal Defense & Educ. Fund , 473 U.S

. 5 

### 788 , 811-12 (1985), the Supreme Court had no difficulty i n 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 [th e government] for excluding advocacy groups." Id. (remanding for a factual determination of whether viewpoint discrimination ha d taken plac e). At no point did the Supreme Court declare the ter m "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 con sidered as such. At oral argument, FAIR acknowledged that it advoca ted for changes in legislation. In addition, FAIR has been a registere d lobbyist, has allied itself with one of the major politica l partie s, self-proclaims that the purpose of its existence is t o "give low-income families a pr o-active voice in Nebraska's Welfare Reform program," Pl. Ex. 4, an d sought to distribute postcards for NDSS clients to send to Nebraska legislators. See FAIR , 89 0 F. Sup p. at 862-63. The postcards contained specific politica l requests regarding welfare reform, including " Please- -no lifetime lim it that will add to homelessness. Please --no orphanages jus t 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 a dvocacy "with expressive activity intended to provide information on meal preparation and the like," FAI R , 890 F. Supp. at 872, is, as noted by the district court, "factually unfounded." Id.
-18- Tr. at 137 (Testimony of Wusk), states the commo n sense, lay understanding of the term. See, e. g. , Webster's II New Riverside University Dictionary 81 (198 4) (defining "advocacy" as "[a]ctive support, as of a cause") ; Webster's Ninth New Collegiate Dictionary59 (1986) (defining "advocacy"

as "the act or process of advocating: support"). That this phrase i s 5 sufficiently concise is demonstrated by the consistency with which it was interpreted: there was no evidence presented that any of the groups allowe d to use the NDSS office attempted to promote issues or causes, just as ther e was no credible evidence that FAIR intended to do anything else. 6

### By co ntrast, FAIR did not wish to provide any sort o f 7 

### services or products to the we lfare recipients, nor did it wish to hire them as employees. Rather, FAIR wished to supply thes e welf are recipients with political opinions, and with th e opportunity to act as a second-party lobbying arm of FAIR.
-19- As the d istrict court noted, the regulation is "clear and simple. " FAIR , 890 F. Supp. at 875 n.14. A "direct benefit," under the parameters of the p olicy, requires that a concrete good or service, includin g educational or employment opportunities, go dire ctly to welfare recipients and their families. Under consistent NDSS practice, only groups offering such tangible goods, educational or employment o pportunities, or volunteer services directly to welfare recipients or their families have been allowe d to access the lobby. 7

Finally, I can perceive no vagueness or ambiguity in the phras e "basic needs." Wusk, through his testimony and the materials he approved for the bulletin board, provided specific examples of these basic needs:

em ployment, nutrition, shelter, clothing, education for children an d adults, tax assistance, and essential household appliances. Rather than arguing that NDSS misapplied the policy in this case or suggesting tha t FAIR meets any comparable basic need, the majori ty implies that Wusk erred in oth er applications of the policy by considering the opportunitie s 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 assist ance service provider with
ove r two decades of experience, may well have a better notion of wha t constitutes a "basic need" for Nebraska welfare recipients than does a panel of federal judges. See Trial Tr. at 133 (Testimony of Wusk) (statin g that visiting childre n'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 cultura l 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 th e courts hav e and must be given some discretion in determining what it s interests are and how best to further them."). In any event, a di sagreement 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 eve n less so when consider ed as a whole, in light of the purpose of the policy and in the context of a welfare office. The NDSS office neithe r "formulate s or debates public policy," FAIR , 890 F. Supp. at 863, bu t rather provides "a broad range of services to welfare recipients," id. Th e purpose of "the policy was to minimize the numbers of groups allowed acces s [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 ensur e 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 thes e circumstances, the clauses in the policy are suf ficiently well-defined, as is demonstrated by the consistency with which th e policy has been applied. I must ec ho the Supreme Court in concluding that the provisions of thi s policy, while they "may not satisfy those intent on finding fault at any cost, the y are set out in terms that the ordinary person exercisin g ordinary common sense can sufficiently understan d 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 determin e whether, as applied, the policy is unconstitutional.

### Alth ough declining to analyze the forum involved in thi s 8 

### cas e, the majority, citing to McIntyre v. Ohio Elections Comm'n , 115 S. Ct. 1511 (1995), seems to suggest that a heightened s tandard of scrutiny should apply to NDSS's policy because FAIR wished t o enga ge in "core speech." See Maj. Op. at 10-11. McIntyre , however, did not involve the regulation of speech in a nonpubli c fo rum, but rather a general prohibition on anonymous politica l 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 an d viewpoin t neutral. See, e.g. , Greer v. Spock , 424 U.S. 828, 83 8 (1976) (there is "no generalized constitutional right to mak e political speeches or distribute leaflets at" a nonpublic forum).
-21- While I agree with the district court and the ma jority that FAIR wished to engage in expressive conduct generally protected by the First Amendment, this determination on ly begins an analysis of whether the First Amendment was violated by the NDSS office's policy. 8

It is fundamental that the "existenc e of a right of access to public propertyand 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 cate gories of public fora. In tradit ional public fora, such as streets and parks, expressive right s receive the greatest degree of protection:

In p laces which by long tradition or by governmen t fiat have been devoted to assembly and debate, the rights of th e State to limit expressive activity are sharpl y circums cribed. . . . [In] public forums, the governmen t may n ot prohibit all communicative activity. For th e State t o enforce a content-based exclusion it must sho w th at its regulation is necessary to serve a compellin g state interest and that it is narrowly drawn to achiev e that end. T he State may also enforce regulations of the time, place, and manner of expression which are contentneutra l, are narrowly tailored to serve a significan t gov ernment interest, and leave open ample alternativ e channels of communication.

### -22-

Id. at 45 (citations omitted). See also International Soc'y for Krishna Consci ousness, Inc. v. Lee , 505 U.S. 672, 678-79 (1992) (describin g categories of fora). The second category of fora, the designated public forum, "consists of p ublic property which the State has opened for use by the pub lic 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 th e public, it is "bound by the same standards as apply in a traditional publi c forum," id. at 46, and a "content-based prohibit ion 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 exclude d without a compelling governmental interest.").

Th e third category of fora, the nonpublic forum, consists of al l other public property. See Lee , 505 U.S. at 678-79. "Public property whic h is no t by tradition or designation a forum for public communication i s governed by different standards." Perry , 460 U.S. at 46. These standard s reflect the recognition that

the First Amendment does not guarantee access to property simply because it is owned or controlled by th e gov ernment. In addition to time, place, and manne r regulations, the State may reserve the forum for it s intended purposes, communicative or oth erwise, as long as the regulati on on speech is reasonable and not an effort to suppress expression merely because public official s oppose the s peaker's view. As we have stated on several occasi ons, the State, no less than a private owner o f pr operty, has power to preserve the property under it s 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 require s the Government freely to grant ac cess to all who wish to exercise their right to free speech o n every type of Government property without regard to the nature of th e property or to the disruption that

### Lee h eld that a public airport is not a traditional o r 9 

### designated public forum, and upheld a ban on solicitation. See 505 U.S. at 683, 685. In International Soc'y for Krishn a Consciousness, Inc. v. Lee , 505 U.S. 830, 831 (1992) (per curiam) ( Lee II ), a companion case to Lee , the Court held that a banon the distribution of literature in the airport was nevertheles s unconstitutional, and relied by reference on various concurr ing and dissenting opinions in Lee , which had disagreed with the maj ority'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 tha t people who want to propagandize protests or views have a
cons titutional right to do so whenever and however and wherever the y please.") (quotations and citation omitted).

In distinguishing between a traditio nal 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 an d, time out of mind, [has] been used for purposes o f as sembly, communicating thoughts between citizens, an d discussing public questions. . . . [A] traditional public foru mis 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 governmen t intentionally allows discourse. The Lee Court explained that

consistent with the notion that the government--lik e other property owners--has power to pre serve the property under its control for the use to which it is lawfull y dedicated, t he government does not create a public forum by ina ction. Nor is a public forum created wheneve r member s of the public are permitted freely to visit a place owned or operated by the Government. The decision to cre ate a public forum must instead be made b y int entionallyopening a nontraditional forum for publi c discou rse. . . . [T]he location of property also ha s bearing because separation from acknowl edged public areas may se rve 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 distr ict court undertook an analysis of the forum under the tests enunciated by the majority in Lee as well as the principle concurre nce, and concluded that the result-- that the NDSS local office lobby was a nonpublic forum--was th e same under both. See FAIR , 890 F. Supp. at 868-74. I agree with the di strict court that either test would achieve the identica l 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 relativel y murky status of the public forum doctrine"); Jacobsen v. Unite d States Postal Serv. , 993 F.2d 649, 655 n.2 (9th Cir. 1992) (noting tha t, as a result of the Lee and Lee II decisions, "th e jurisprudence in this area is now quite muddied"). I believe , howeve r, that the district court's duplication of effort wa s unnecessary. Chief Justice Rehnquist's opinion in Lee , whic h clearl yset out the mechanics of forum analysis, commanded a majority of the Court, and Lee II in no way overruled its co mpanion case. Because of this, I will only apply the majority test fro m Lee
. -24- FAIR do es not contend that the NDSS office is a traditional publi c 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 evidenc e present ed that the NDSS office has traditionally been used for publi c expression and, rather than having as a principal purpose the free exchang e 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 publi c 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 ope ning 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 som e testimony that a group of Girl 10 

### Scouts had, several years befo re, 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 all owing the Girl Scouts access to the waiting/reception area t o hand out materials." FAIR , 890 F. Supp. at 866 n.4. The ma jority, while criticizing the district court, see Maj. Op. at 4-5 n.2 , fails to discern clear error in this finding. Because "[t]h e government does not create a public forum by inaction or b y permitting limited discourse, but only by intentionally opening a nontraditional forum for publi c discourse," Cornelius , 473 U.S. at 802, the alleged presence of t he 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 politica l campaigning on the base was reasonable. In reaching this de cision, the Court explained:
The fact that other civilian speakers an d entertainers had sometimes been invited to appea r 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 t o conduct their campaigns there. The decision of the militaryauthorities that a civilian lecture o n dru g abuse, a religious service by a visitin g preacher at the base chapel, or a rock musica l concert would be supportive of the military mission of F ort Dix surely did not leave the authoritie s -25- F. Supp. at 871. FAIR contends, however, that in allowing groups like Hea d Sta rt to distribute materials at the office, NDSS necessarily created a designated public forum. I disagree.

"[A] practice of allowing some speech activities on [government ] propertydo[es] not add up to the dedication of [government] property to speechactivities." United States v. Kokinda , 497 U.S. 720, 730 (1990 ) (pluralityopinion). The only groups allowed access to the NDSS office, "[j ]ust like NDSS, . . . provided basic social services to welfar e recipi ents." FAIR , 890 F. Supp. at 871. Where "government property i s 10 not dedicated to open communication the government may--without furthe r justi fication--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 an y subject whatever.
424 U.S. at 838 n.10.
-26- Beca use the "providers of information on nutrition and the like wer e partic ipating with the agreement of welfare officials in the welfar e office' s official business--the provision of basic social services t o welf are recipients . . . the use of the property by groups such as th e countyextension agency providing nutritional information does no t transformthe property into a public forum." FAIR , 890 F. Supp. at 872. I must therefore agree with the district court that the NDSS office was no t a designated public forum.

V.

Because the NDSS office was neither a traditional public forum no r a designated public forum,

the re gulation at issue must be analyzed under th e standa rds set forth for nonpublic fora: It must b e reas onable and not an effort to suppress expressio n merelybecause public officials oppose the speaker' s view. Indeed, control over access to a nonpublic foru m can be based on subject matter and speaker identity s o long as the distinctions drawn are reas onable in light of the purpose served by the forum and are viewpoin t neutral. The Government's decision to restrict access to a nonpublic forum need only be reasonab le ; it need not be the most reasonable or the only reasonable limitation.

Kok inda , 497 U.S. at 730 (quotations and citations omitted; emphasis i n original). See also Perry , 460 U.S. at 49 ("Implicit in the concept of th e nonpublic forum is the right to make distinctions in access on the basis of subje ct matter and speaker identity. These distinctions may b e impermissible in a public forum but are inherent and inescapable in th e pro cess of limiting a nonpublic forum to activities compatible with th e intended

### Wusk described the conditions of the NDSS office, and th e 12 

### concerns over congestion:

We a lso have large groups of people at differen t ti mes during the month. The first five workin g day s are usually very hectic. In the first thre eworking days, for instance, in March, we over-theco unter issued to about 1,920 households. That' s for su re at least one individual, but many peopl e don' t come just by [them]selves. They come wit h ch ildren, they may come with a significant other , the ymay come with a grandparent and so the 1,92 0 [households are] really magnified by many othe r peop le. Also, we do business on those days ' busi ness, meaning that we do . . . quarterl y re views, six-month reviews, yearly reviews , depending on what program you're in and how you're set up. These continue on an ongoing basis, plu s 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 traffi c area, so we have taken a look and said we are not really wan ting to
-27- purpose of the property. The touchstone for eva luating these distinctions is whether they are r easonable in light of the purpose which the forum at issue serves."). In addition, "[c]onsideration of a forum's specia l attributes is relevan t to the constitutionality of a regulation since the significance of the governmental interest must b e assessed in light of the charact eristic 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. Th e offic ial business of the NDSS office is to provide services to welfar e reci pients. See FAIR , 890 F. Supp. at 872. In light of this officia l business, it is reasonable for NDSS to allow access to the office to group s which provide direct benefits which meet welfare recipients' basic needs, because this allows NDSS to fulfill its mission. It is also reasonable fo r NDSS to prohibit access by all other groups, because this prevent s congest ion. Cf. Lee , 505 U.S. at 683-84 (restriction on solicitatio n 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 o f 13 

### expressive activity than that practiced by the groups allowe d access to the NDSS office. As found by the district court, "on e 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, a s noted by the district court, different impacts on the NDSS office: Stippel testified that when sh e engaged in [FAIR's] proposed expressive activity on the sidewalk i n front of the building where NDSS was situated, she encountered "problems" when "we gave th e information to somebody that didn't agree with our side," which in turn caused "heavy discussions. " [Trial Tr. at 89.] It is inconceivable that th e 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- expre ssive activities by advocacy groups is also reasonable; NDSS' s "posit ion as a government controlled and financed public facility, use d daily by thousands of people, ma[kes] it highly advisable to avoid th e criticism and embarra ssments of allowing any display seeming to favor any political view." Lebron , 69 F.3d at 658 (upholding AMTRAK's restriction on political advertisement s as reasonable). Finally, NDSS's prohibition 13

on advocacy groups is also reasonable as an effort to treat NDSS clients wit hdignity and to prevent their coercion. As found by the distric t court,

In t his case, the waiting/reception area is fille d withsome of the most underprivileged in our societ y seekin g benefits from the state for the most basi c neces sities of life. . . . [T]hese waiting/receptio n areas are not public or limited public forums but are , indeed, but holding stations for the mo st pitiful captive audiences in our country.

### Wusk testified regarding the need to preserve the dignity of 14 

### NDSS clients:
When c ustomers come to the Department of Socia l Se rvices to apply for ADC or food stamps o r Medicaid, in Lancaster County, at least, they have no oth er choice. We are the only office tha t offers those types of services. We do very fe w appl ications external to the [local office]. S o when those folks come, they ar e a captive audience. We really believe that we need to treat them wit h dignityand treat them with respect, and I ca n re quire, within my office, my staff to do that , and, in fact, I make it mandatory. There is n o exception to that. When they come, I believe they- -that our customers have expectations that the y sho uld not have to go through a large group o f people [sitting] wanting to give them informatio n because they usually come with very specifi c 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 protectiv e service s because of mental impairments, and all of who m need state a ssistance for some or all of the necessities of life--are peculiarly susceptible to coercion, whether subtle or overt, regarding, among other things, public

policy issue s. This is true both because of the welfare recipients' unfortunate stations in life and because o f the c aptive nature of their attendance at the welfar e 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 peculiarl y susceptible to verbal misrepresentations, whethe r because of the noisy and crowded atmosphere of [a welfare office] lobby, language barriers, or even

a misperce ived need to do anything necessary to ensure the receipt o f welfare checks or to lessen the wait in [the welfare office]"). 14

### -30- The reasonableness of NDSS's policy is further supported becaus e there are "substantial alternative channels that remain

### -31-

open" to FAIR to disseminate its message. Perry , 460 U.S. at 53. FAIR ha s
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 FAI R would undoubtedly prefer the opportunities prese nted by a captive audience in the NDSS office, "[t]he First Amendment does not demand unrestricte d
access to a nonpublic forum merely because use of that forum may be th e 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 pol icy"is not an effort to suppress the speaker's activity due t o disagreement with the speaker's view." FAIR , 89 0 F. Supp. at 877 (quoting Lee , 505 U.S. at 679). As noted by the district court,

The evidence establishes without contradiction that Wusk enfor ced the regulation without regard to whether h e agreed or disagreed with the message of the speaker

. [Trial Tr. at 134.] In fact, the evidence establishe s that Wusk enforced the regulation against a group h e 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 preserv e the limits of the forum it has created so that th e exclus ion of a class of speech is legitimate, we hav e observed a d istinction between, on the one hand, content discriminati on, which may be permissible if it preserves the pu rposes of that limited forum, and, on the othe r ha nd, viewpoint discrimination, which is presume d impermissible when directed against speech otherwis e within the forum's limitations.

### Similarly, NDSS's restrictions on FAIR's access to the NDSS 1 5 

### office's bulletin boards was r easonable. As found by the district court,
The fa ct is that space on the bulletin boards i s quite limited as they are small. [Trial Tr. a t 132.] Indeed, in the photos introduced int o evidence, the bulletin-board space appears almos t entirely devoted to social- service notices. (Ex. 1, Prelim. Hr'g (photos)). Consequently, if the y honored Plaintiffs' request, Defendants [NDSS ] would undoubtedly be confronted with simila r requests by other advocacy groups, resulting . . . in lurking doubts about favoritism, and stick y administrative problems in parceling out limite d space to eager politicians.

FAIR , 890 F. Supp. at 876 (quotations & citation omitted).
-32- Rosenbe rger v. Rector & Visitors of Univ. of Va. , 115 S. Ct. 2510, 251 7 (1995).
The NDSS policy allowed expressive activities which provided a direct ben efit 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 t o disall owits access to the NDSS office, there was no viewpoin t discri mination. Because the NDSS policy is otherwise reasonable, th e 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 i s similarly situated to those groups allowed acces s. 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 sit uated to those groups allowed access to the NDSS office. NDSS ha s therefore not violated FAIR's right to equal protection in this case.

### -33- VIII.

Because the NDSS office is a nonpublic forum, and the polic y regula ting expressive activities in the NDSS office is reasonable, no t based on viewpoint, a nd not vague, I would affirm the district court. In

revers ing the district court, the majority has usurped the fact-findin g function of the district court, misapplied the l aw, and opened a nonpublic forum to the world at large. I dissent.

A true copy.

Attest:

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