The Honorable Lawrence L. Piersol, United States District

1

Judge for the District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 95-4158

___________

Harlan L. Jacobsen, *

*

 Plaintiff-Appellee, *

*

v. *

*

Richard Howard, Secretary of * Appeal from the United States

the State of South Dakota * District Court for the

Transportation, individually * District of South Dakota.

and in that capacity; Jeff *

Holden, Director of South *

Dakota Highway Safety and *

Motor Vehicles, individually *

and in that capacity, *

*

Defendants-Appellants.*

___________

 Submitted: June 12, 1996

 Filed: March 24, 1997

___________

Before LOKEN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Richard Howard, Secretary of State of South Dakota Transportation,

and Jeff Holden, Director of South Dakota Highway Safety and Motor

Vehicles, appeal from the district court's order declaring

1

unconstitutional three South Dakota statutes, that prohibit newspaper

vending machines at interstate rest areas, and enjoining Howard and Holden

from enforcing the statutes against
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Harlan L. Jacobsen, a newspaper publisher and distributor. Howard and

Holden argue that the district court erred in concluding that the statutes

were unconstitutional under the First Amendment overbreadth doctrine and

as applied to Jacobsen. They contend that we should uphold the South

Dakota statutes because they are not facially overbroad, are reasonable

regulations by the state, and are only incidental regulations of speech not

directed to the suppression of speech. Because we conclude that the

statutes are unconstitutional as applied to Jacobsen, we need not consider

the overbreadth question. We affirm the judgment of the district court.

Jacobsen publishes a newspaper, Solo RFD, for single adults, that he

primarily distributes through vending machines. In July 1991 Jacobsen

placed a newspaper vending machine at the Interstate 29 rest area near

Vermillion, South Dakota. Several weeks later, an independent contractor

for the South Dakota Department of Transportation removed the vending

machine from the rest area and placed it in storage. Jacobsen sued Howard

and Holden, individually and in their official capacities, seeking to

enjoin the South Dakota officials from enforcing the state statutes under

which the vending machine was removed and declaring the statutes

unconstitutional. He also sued Holden and Howard under 42 U.S.C. § 1983

(1994), claiming that the removal of his vending machine from the rest area

deprived him of his rights under the First and Fourteenth Amendments and

constituted a seizure of property without due process. 

Both parties moved for summary judgment. Howard and Holden argued

that Congress delegated the authority to regulate vending machines at

interstate rest areas to the states, 23 U.S.C. § 111(b)(1994), and that

South Dakota could enact laws to prohibit the placement of all vending

machines except soft drink vending machines operated for the benefit of

visually impaired vendors. The district court rejected Howard and Holden's

argument and
 23 U.S.C. § 111(b) states: 2

Vending machines.-- Notwithstanding subsection (a), any

State may permit the placement of vending machines in

rest and recreation areas, and in safety rest areas,

constructed or located on rights-of-way of the Interstate

System in such State. Such vending machines may only

dispense such food, drink, and other articles as the

State highway department determines are appropriate and

desirable. Such vending machines may only be operated by

the State. In permitting the placement of vending

machines, the State shall give priority to vending

machines which are operated through the State licensing

agency designated pursuant to section 2(a)(5) of the Act

of June 20, 1936, commonly known as the "RandolphSheppard Act" (20 U.S.C. 107a(a)(5)). The costs of

installation, operation, and maintenance of vending

machines shall not be eligible for Federal assistance

under this title. (Emphasis added).

 The South Dakota statutes are: 3

31-8-16. Commercial establishment on right-of-way

prohibited--Exception-- Violation as misdemeanor. No

automotive service station or other commercial

establishment for serving motor vehicle users may be

constructed or located within the right-of-way of, or on

publicly owned or publicly leased land acquired or used

for or in connection with a controlled-access highway.

This section does not apply to a vending facility vending

soft drinks only operated for the benefit of visually

impaired vendors licensed by the division of service to

the visually impaired. A violation of this section is a

Class 2 misdemeanor.

S.D. Codified Laws § 31-8-16 (Michie Supp. 1996).

31-29-83. Commercial activities in rest areas or

information centers not permitted-- Exception. Nothing

in §§ 31-29-61 to 31-29-83, inclusive, authorizes the

state or any political subdivision to operate or

maintain, directly or indirectly, any commercial activity

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interpreted 23 U.S.C. § 111(b) to be a delegating statute, granting states 2

authority to permit the placement of vending machines in rest areas of the

interstate system, but not authorizing any type of regulation concerning

the vending machines. The court then held the three statutes in question3
in any safety rest area or information center. This

section does not apply to a vending facility vending

soft drinks only operated for the benefit of visually

impaired vendors licensed by the division of service to

the visually impaired.

S. D. Codified Laws § 31-29-83 (Michie Supp. 1996).

31-32-13. Business requiring use of highway by customers

as misdemeanor-- Exceptions. It is a Class 2 misdemeanor

for any person to conduct an establishment or maintain a

business the nature of which requires the use by patrons

or customers of any part of the right-of-way of a state

trunk highway while the patron or customer is receiving

or discharging any merchandise or commodity at the place

of business. This section does not apply to streets

within the limits of municipalities which are under the

control and regulation of the municipality. This section

does not apply to a vending facility vending soft drinks

only operated for the benefit of visually impaired

vendors licensed by the Division of Service to the

Visually Impaired.

S.D. Codified Laws § 31-32-13 (Michie Supp. 1996).

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facially 
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unconstitutional under the First Amendment overbreadth doctrine because the

statutes "sweep within their ban on commercial use of interstate rest areas

all newspaper vending machines . . . creat[ing] a virtual First Amendment

Free Zone."

Alternatively, the district court held that the state statutes were

unconstitutional as applied. Relying on Sentinel Communications Co. v.

Watts, 936 F.2d 1189 (11th Cir. 1991), the court agreed that the rest areas

were non-public fora and, as such, the regulations restricting First

Amendment rights must only be reviewed for reasonableness. After examining

the interests served by the statutes and the impact the statutes had on

First Amendment activities, the court concluded that the statutes were

unreasonable because they banned all commercial activities at interstate

rest areas and unreasonably interfered with the constitutionally protected

activity of newspaper distribution. The court reasoned
 Jacobsen argues in his brief that he is entitled to monetary 4

damages; however, he did not file a cross appeal from the district

court's ruling to the contrary. 

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that distributing and reading of newspapers is compatible with the normal

activities at interstate rest areas, and that the state's interests in

meeting the safety, rest, and information needs of interstate travelers

were not jeopardized by permitting the constitutionally protected activity

of distributing newspapers at these areas. The court was influenced by the

less restrictive regulations of other states, and the state's failure to

show an effective alternative means of distribution or communication,

especially considering the sparse population in most areas of South Dakota.

After concluding that the statutes were also unconstitutional as applied,

the court enjoined the state officers from enforcing the statutes. The

court entered summary judgment in favor of Howard and Holden on Jacobsen's

section 1983 claim, ruling that Jacobsen failed to allege any facts that

would establish that Howard and Holden were directly involved in the action

of the independent contractor who removed Jacobsen's vending machine and

whom Jacobsen did not name as a party. Howard and Holden appeal. 4

I.

Howard and Holden argue that the statutes are not facially overbroad,

and Jacobsen must show that the statutes are unconstitutional as applied.

Howard and Holden further attack the district court's alternative ruling

that the statutes are unconstitutional as applied. We first consider the

district court's ruling that the statutes are unconstitutional as applied.

Our First Amendment analysis depends on the type of forum being

regulated. In a traditional public forum or a public forum by government

designation, First Amendment restrictions are subject to strict scrutiny.

Board of Airport Commissioners v. Jews for
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Jesus, 482 U.S. 569, 572-73 (1987). We uphold an exclusion of expressive

activities if the regulation is necessary to serve a compelling state

interest and the regulation is narrowly drawn to achieve that interest.

Id. at 573 (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460

U.S. 37, 45 (1983)); Cornelius v. NAACP, 473 U.S. 788, 800 (1985). A state

may restrict access to a nonpublic forum, however, as long as the

regulation is reasonable and not an effort to suppress expression merely

because of opposition to a speaker's view. Jews for Jesus, 482 U.S. at 573

(citation and quotation omitted).

Howard and Holden contend that interstate safety rest areas are

nonpublic fora, and are subject to the state's reasonable regulation.

Jacobsen concedes that the rest areas are nonpublic fora, but he argues

that access to these areas is critical if his newspapers are to survive.

He urges us to declare that the sidewalks within the interstate rest areas

are public fora, like other public streets and sidewalks. 

The district court relied on Sentinel Communications in deciding that

interstate rest areas, though resembling city parks, "are hardly the kind

of public property that has 'by long tradition or by government fiat . . .

been devoted to assembly and debate.'" 936 F.2d at 1203 (quoting Perry

Educ. Ass'n, 460 U.S. at 45). Of course, a rule based entirely on "long

tradition" might fail to adjust First Amendment protections to significant

changes in the ways the public congregates, communicates, and travels.

Moreover, from the standpoint of the government's need to limit free

speech, interstate rest areas seem quite different from airport terminals,

which were held to be nonpublic fora in International Society for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 680-81 (1992). Nevertheless,

because Jacobsen did not develop an adequate record on the issue, and

because we find the statutes infirm under the less rigorous standard for

nonpublic fora, we assume without deciding that the district court

correctly decided that the
 23 C.F.R. Section 752.5(b) provides: 5

The State may permit the placement of vending machines in

existing or new safety rest areas located on the rightsof-way of the Interstate system for the purpose of

dispensing such food, drink, or other articles as the

State determines are appropriate and desirable. . . .

Such vending machines shall be operated by the State.

(Emphasis added).

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interstate rest areas are nonpublic fora, and we turn our attention to

whether the South Dakota statutes are reasonable. 

Howard and Holden argue that the district court analyzed the

reasonableness of the statutes in a backwards fashion. They argue that the

court erred because it first considered whether the newspaper vending

machines were compatible with the purpose of the safety rest area, instead

of examining the statutes alone to decide if the restrictions contained in

the statutes were arguably reasonable. They stress that federal law

disfavors vending machines in rest areas and prohibits those not operated

directly or under contract with the state. See 23 U.S.C. § 111(b); 23

C.F.R. § 752.5(b)-(c) (1996). They state that they are in a better

5

position than the federal court to determine the reasonableness of the

statutes. 

We are persuaded that the district court correctly analyzed the South

Dakota statutes. In considering the reasonableness of the statutes, the

Supreme Court has uniformly directed us to consider the speech which is

being restricted by the government regulation. For example, in City of

Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988), the Supreme

Court discussed a "hypothetical ordinance" prohibiting newsracks on public

property. Id. at 763. Although the Court declined to decide whether a

city could constitutionally prohibit the placement of newsracks on public

property, id. at 762 n.7, the Court instructed that it would analyze an

ordinance prohibiting all newsracks using the time,
 See, e.g., Gold Coast Publications, Inc. v. Corrigan, 42 F.3d 6

1336, 1343-44 (11th Cir. 1994), cert. denied, 116 S. Ct. 337

(1995); Miami Herald Publ'g Co. v. City of Hallandale, 734 F.2d

666, 673 (11th Cir. 1984); Gannett Satellite Info. Network, Inc. v.

Metropolitan Transp. Auth., 745 F.2d 767, 772 (2d Cir. 1984). See

also International Caucus of Labor Comms. v. City of Montgomery, 87

F.3d 1275, 1278 (11th Cir. 1996) (upholding city policy banning

tables from city sidewalks and distinguishing newsrack cases as

precedent). 

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place, and manner test. Id. at 763. The Court identified the risk

necessitating the First Amendment inquiry as the government's silence or

restraint of a channel of speech, and stated that the appropriate inquiry

is "whether some interest unrelated to speech justifies this silence." Id.

"[T]he question is whether the manner of expression is basically

incompatible with the normal activity of a particular place at a particular

time." Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 116

(1972)). As explained by the Second Circuit:

Public property . . . which is neither a traditional nor a

designated public forum, can still serve as a forum for First

Amendment expression if the expression is appropriate for the

property and is not incompatible with the normal activity of a

particular place at a particular time. 

Gannett Satellite Info. Network, Inc. v. Metropolitan Transp. Auth., 745

F.2d 767, 773 (2d Cir. 1984) (citations and quotations omitted).

The Supreme Court used a similar inquiry in Perry Education

Association, 460 U.S. at 50-51, instructing that a restriction on speech

is "reasonable" when it is "consistent with the [state's] legitimate

interest in preserving the property for the use to which it is lawfully

dedicated." 

The district court relied on Sentinel Communications when it stated

that there is a constitutional right to distribute and circulate newspapers

through the use of newsracks. 936 F.2d at 1196. The Eleventh Circuit

relied on a number of cases in reaching this conclusion, including City of

Lakewood, 486 U.S. at 768. Although several courts have indicated that a

city may not completely ban newsracks from public property, City of

6

Lakewood
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did not decide the question. 486 U.S. at 762 n. 7 ("we do not pass on [the

dissent's] view that a city may constitutionally prohibit the placement of

newsracks on public property"). 

In addition, there is, at least, a disagreement among members of the

Supreme Court on whether a city may prohibit newsracks from public rightsof-way. Several justices have stated that the right to distribute

newspapers does not include the right to distribute newspapers using

newsracks. City of Lakewood, 486 U.S. at 778 (White, J., dissenting)

(citing Breard v. Alexandria, 341 U.S. 622, 642 (1951)). Justice White

specifically concluded that although a newspaper publisher may have the

right to distribute newspapers, this right does not "encompass the right

to take city property . . . and appropriate it for . . . exclusive use, on

a semipermanent basis, by means of the erection of a newsbox." Id. at 778.

See also City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 438,

445 (1993) (Rehnquist, C.J., dissenting) (stating that a city could order

the removal of all newsracks from its public rights-of-way). 

In Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1993) (en banc),

cert. denied, 114 S. Ct. 1837 (1994), the Seventh Circuit considered a

challenge to a city ordinance governing the licensing of sidewalk

newsstands. Id. at 1311. A plurality of five judges, distinguishing

newsracks from newsstands, concluded that a newsstand on public property

was not entitled to First Amendment protection. Id. at 1314-17. Seven

other judges, however, disagreed. See id. at 1327-28 (Flaum, J.,

concurring, joined by Cudahy, J.) (writing separately to "emphasize my

belief that the erection and maintenance of newspaper stands qualifies as

conduct
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 commonly associated with expression . . . implicat[ing] the First

Amendment's protection of expression"); id. at 1333-34 (Ripple, J.,

concurring, joined by Cudahy, J., and Rovner, J.) (finding "untenable" the

plurality's position that the placement of a newsstand does not implicate

expressive activity); id. at 1335 (Cummings, J., dissenting, joined by

Bauer, J., and Fairchild, J.) (same). Thus, although Graff considered a

licensing scheme and not a ban on all newsracks, it reinforces our view

that the state's prohibition is unreasonable and cannot square with the

First Amendment. Because the statutes here go far beyond merely

prohibiting newspaper vending machines, we are not faced with deciding the

First Amendment limitations on time, place, and manner regulation of

newsracks and vending machines. The three statutes prohibit all commercial

distribution of newspapers. The state has presented no credible

explanation why the distribution of newspapers at an interstate rest area

is incompatible with the state's interests in providing places of safety,

rest, and information to interstate travelers. In these circumstances, we

are persuaded that the state may not legislate such a broad ban on First

Amendment activity. See Discovery Network, 507 U.S. at 430 ("Cincinnati

has enacted a sweeping ban that bars from its sidewalks a whole class of

constitutionally protected speech"); International Caucus of Labor Comms.

v. City of Montgomery, 87 F.3d 1275, 1278 (11th Cir. 1996) (discussing

significance of newsracks in public places). We conclude that the statutes

are unconstitutional insofar as they ban the distribution of newspapers at

interstate rest areas. 

Howard and Holden's argument that Jacobsen did not have a contract

with the state to distribute newspapers as required by 23 U.S.C. § 111(b)

is unpersuasive, as the state statutes prohibit the state officials from

entering into such a contract. We have no hesitation in deciding that the

distribution of newspapers at an interstate rest area is fully compatible

with the state's interests in providing safety, rest, and information to

interstate travelers. 
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We conclude that the state statutes are unreasonable, and affirm the

district court's ruling that the statutes are unconstitutional as applied

to Jacobsen.

II.

Because we hold the statutes are unconstitutional as applied to

Jacobsen, we need not decide whether the statutes are facially overbroad

as held by the district court. However, we point out that the overbreadth

doctrine is "strong medicine," Broadrick v. Oklahoma, 413 U.S. 601, 613

(1973), used only if the overbreadth is "substantial," City of Houston v.

Hill, 482 U.S. 451, 458-59 (1987). The overbreadth doctrine allows:

an individual whose own speech or expressive conduct may

validly be prohibited or sanctioned . . . to challenge a

statute on its face because it also threatens others not before

the court--those who desire to engage in legally protected

expression but who may refrain from doing so rather than risk

prosecution or undertake to have the law declared partially

invalid.

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). "[T]here must

be a realistic danger that the statute itself will significantly compromise

recognized First Amendment protections of parties not before the Court for

it to be facially challenged on overbreadth grounds." Jews for Jesus,

Inc., 482 U.S. at 574 (quoting City Council of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 801 (1984)). 

"It is not the usual judicial practice, . . . nor do we consider it

generally desirable to proceed to an overbreadth issue unnecessarily--that

is, before it is determined that the statute would be valid as applied."

Board of Trustees v. Fox, 492 U.S. 469, 484-85 (1988). Permitting a facial

challenge "would convert the use of the overbreadth doctrine from a

necessary means of vindicating the plaintiff's own right not to be bound

by a statute
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that is unconstitutional into a means of mounting gratuitous wholesale

attacks upon state and federal laws." Id. at 485. Because we conclude

that the statutes are invalid as applied, it is appropriate that we not

consider the overbreadth issue. See id. Similarly, the district court

should have first considered the validity of the statutes as applied

instead of reaching the overbreadth question in the first instance. Had

the district court done so, it also would have found it unnecessary to

consider the overbreadth issue. Accordingly, we must vacate that portion

of the district court's opinion and judgment that holds the statutes

overbroad. 

III.

Our conclusion that the statutes are unconstitutional undercuts

Holden's and Howard's remaining argument that we should uphold the statutes

under the incidental speech doctrine. "[W]hen 'speech' and 'nonspeech'

elements are combined in the same course of conduct, a sufficiently

important governmental interest in regulating the nonspeech element can

justify incidental limitations on First Amendment freedoms." United States

v. O'Brien, 391 U.S. 367, 376 (1968). We will uphold an incidental

regulation of speech if the regulation:

is within the constitutional power of the Government; if it

furthers an important or substantial governmental interest; if

the governmental interest is unrelated to the suppression of

free expression; and if the incidental restriction on alleged

First Amendment freedoms is no greater than is essential to the

furtherance of that interest.

Id. at 377.

Howard and Holden contend that the purpose behind the statutes is to

prohibit all commercial activity at interstate rest areas, and this

prohibition only incidentally regulates speech. The
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statutes, however, ban the sale of newspapers. In light of our discussion

above, we cannot say that the statutes only incidentally regulate speech,

or, on the state of this record, further the state's asserted interests.

We vacate the portion of the district court's opinion and judgment

holding that the statutes are facially overbroad, and we affirm the

remainder of the judgment of the district court.

A true copy.

Attest:

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