### The Honorable Lawrence L. Piersol, United States Distric t 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.

Ri chard Howard, Secretary of State of South Dakota Transportation , and Jeff Holden, Director of South Dakota Highway Safety and Moto r Vehi cles, appeal from the district court's order declarin g 1

unc onstitutional three South Dakota statutes, that prohibit newspape r vending machines at interstate rest areas, and e njoining Howard and Holden from enforcing the statutes against

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Harlan L. Jacobsen, a newspaper publisher and distributor. Howard an d Holden argue that the district court erred in co ncluding that the statutes
were unconstitutional under the First Amendment overbreadth doctrine and

as applied to Jacobsen. They contend that we should uphold the Sout h Dakota statutes because they are not facially overbroad, are reasonabl e regulations by the state, and are only incidental regulations of speech no t dire cted to the suppression of speech. Because we conclude that th e statutes are unconstitutional as applied to Jaco bsen, 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 primar ilydistributes through vending machines. In July 1991 Jacobse n place d a newspaper vending machine at the Interstate 29 rest area nea r Vermillion, South Dak ota. Several weeks later, an independent contractor for th e South Dakota Department of Transportation removed the vendin g machine from the rest area and placed it in stor age. Jacobsen sued Howard and Ho lden, individually and in their official capacities, seeking t o enjoin the South Dako ta officials from enforcing the state statutes under which the vending machine was removed and declaring the statute s 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 are a deprived him of his rights under the First and Fourteenth Amendments and constituted a seizure of property without due process.

Both par ties moved for summary judgment. Howard and Holden argue d that C ongress delegated the authority to regulate vending machines a t interstate rest areas to the states, 23 U.S.C. § 111(b)(1994), and tha t South Dakota could enact laws to prohibit the placement of all vendin g
mac hines except soft drink vending machines operated for the benefit o f 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 Stat e may permit the placement of vending machines i n re st and recreation areas, and in safety rest areas , constructedor located on rights-of-way of the Interstat e Systemin such State. Such vending machines may onl y di spense such food, drink, and other articles as th e State highway department determines are appropriate and desirable. Such vending machines may only be operated by the St ate. In permitting the placement of vendin g mac hines, the State shall give priority to vendin g machines which are operated through the State licensing agency designated pursuant to section 2(a)(5) of the Act of Jun e 20, 1936, commonly known as the "Randolph

Sheppard Act" (20 U.S.C. 107a(a)(5)). The costs o f installation, operation, and maintenance of vendin g mach ines shall not be eligible for Federal assistanc e under this title. (Emphasis added).

The South Dakota statutes are: 3


### 31-8-16. Commercial establishment on right-of-wa y prohibited--Exception-- Violation as misdemeanor. N o automotive service station or other commercia l establ ishment for serving motor vehicle users may b e constructed or located within the right-of-way of, or on publicly owned or publicly leased land acquired or used fo r or in connection with a controlled-access highway

. This section does not apply to a vending facility vendin g soft drinks only operated for the benefit of visuall y impaired vendors licensed by the division of service to the visually impaired. A viol ation 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 o r information centers not permitted-- Exception. Nothing in § § 31-29-61 to 31-29-83, inclusive, authorizes th e state or any political subdivision to operate o r maintain, directly or indirectly, any commercial activit y -3- interpreted 23 U.S.C. § 111(b) to be a delegating statute, gra nting states 2 authority to permit the placement of vending mac hines in rest areas of the interstate system, but not authorizing any type of regulation concerning the vendin g machines. The court then held the three statutes in question 3

### in any safety rest area or information center. Thi s

sectio n does not apply to a vending facility vendin g soft drinks only operated for the benefit of visuall y 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 customer s as misdemeanor-- Exceptions. It is a Class 2 misdemeano r for any person to conduct an e stablishment or maintain a business the nature of which r equires 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 street s within the limits of municipalities which are under the control and regulation of the municipality. This sectio n does not apply to a vending fa cility vending soft drinks onl yoperated for the benefit of visually impaire d vendor s licensed by the Division of Service to th e Visually Impaired. S.D. Codified Laws § 31-32-13 (Michie Supp. 1996).

-4- facially

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unconstitutional under the First Amendment overbreadth doctrine because th e statutes "sweep within their ban on commercial use of interstate rest area s all newspaper vendingmachines . . . creat[ing] a virtual First Amendment Free Zone."

Alternati vely, the district court held that the state statutes were
uncons titutional as applied. Relying on Sentinel Communications Co. v

. Watts , 936 F.2d 1189 (11th Cir. 1991), the court agreed that the rest area s
were n on-public fora and, as such, the regulations restricting Firs t Amendment rights must only be reviewed for reasonableness. After examinin g the inter ests served by the statutes and the impact the statutes had o n First Amendment activities, the court concluded that the statutes wer e 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 ar gues in his brief that he is entitled to monetary 4 

### damages; however, he did not f ile a cross appeal from the district court's ruling to the contrary.
-6- that distributing andreading of newspapers is compatible with the normal activities at interstate rest areas, and that the state's interests i n meetin g the safety, rest, and information needs of interstate traveler s were not jeopardized by permitting the constitut ionally protected activity of distributing newspapers at these areas. The court was influenced by th e 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. Th e court entered summary judgment in favor of Howar d 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 actio n 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 over broad, and Jacobsen must sho w 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 un constitutional as applied.

Our First Amendment analysis depends on the type of forum bein g regulated. In a trad itional public forum or a public forum by government designation, First Am endment 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 activit ies if the regulation is necessary to serve a compelling stat e int erest and the regulation is narrowly drawn to achieve that interest

. Id. at 573 (citing Pe rry 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 stat e may rest rict access to a nonpublic forum, however, as long as th e 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 57 3 (citation and quotation omitted).

Howard and Holden contend that interstate safety rest areas ar e nonpub lic fora, and are subject to the state's reasonable regulation

. Jacobsenconcedes that the rest areas are nonpublic fora, but he argue s that access to these areas is critical if his newspapers are to survive. He urges us to declare that the sidewalks withinthe interstate rest areas are public fora, like other public streets and sidewalks.

The district court relied on Sentinel Communications in decidin g that interstate rest areas , though resembling city parks, "are hardly the kind of public property that has 'by long tradition o r by government fiat . . . been devo ted to assembly and debate.'" 936 F.2d at 1203 (quoting Perr y 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 change s in the ways the public congregates, communicates, and travels

. More over, from the standpoint of the government's need to limit fre e speech, interstate rest areas seem quite differe nt from airport terminals, which were held to be nonpublic fora in International Society for Krishna Con sciousness, Inc. v. Lee , 505 U.S. 672, 680-81 (1992). Nevertheless , because Ja cobsen did not develop an adequate record on the issue, an d because we find the statutes infirm under the less rigorous standard for nonpub lic fora, we assume without deciding that the district cour t correctly decided that the

### 23 C.F.R. Section 752.5(b) provides: 5


### The State may permit the placement of vending machines i n existing or new safety rest ar eas located on the rightsof-way of the Interstate system for the purpose o f disp ensing such food, drink, or other articles as th e Stat e determines are appropriate and desirable. . .

. Such vending machines shall be operated by the State

. (Emphasis added).
-8- inter state rest areas are nonpublic fora, and we turn our attention t o whether the South Dakota statutes are reasonable.

Howard and Holden argue that the district court analyzed th e reasonableness of the statutes in a backwards fashion. They argue that th e court erred because it first considered whether the newspaper vendin g 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 la w disfavors vending mac hines in rest areas and prohibits those not operated directly or under contract with the state. See 23 U.S.C. § 111(b); 2 3 C.F.R
. § 752.5(b)-(c) (1996). They state that they are in a bette r 5 positionthan the federal court to determine the reasonableness of th e 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 i s being restricted by the government regulation. For example, in City o f Lakewood v. Plain Dea ler Publishing Co. , 486 U.S. 750 (1988), the Supreme Court discussed a "hypothetical ordinance" prohi biting newsracks on public propert y. Id. at 763. Although the Court declined to decide whether a city could constituti onally prohibit the placement of newsracks on public property, id. at 762 n.7, the Court instructed that it would analyze a n 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. 33 7 (1995); Miami Herald Publ'g Co. v. City of Hallandale , 734 F.2 d 666, 673 (11th Cir. 1984); Gannett Satellite Info. Network, Inc. v. Metropolitan Transp. Auth. , 74 5 F.2d 767, 772 (2d Cir. 1984). See also International Caucus of Labor Comms. v. City of Montgom ery , 87 F.3d 1 275, 1278 (11th Cir. 1996) (upholding city policy bannin g tabl es from city sidewalks and distinguishing newsrack cases a s precedent).
-9- place, and manner test. Id. at 763. The Court identified the ris k necessitating the First Amendment inquiry as the government's silence or restraint of a channe l 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 basicall y incompatible with the normal activity of a particular place at a particula r time." I d. (quoting Grayned v. City of Rockford , 408 U.S. 104, 11 6 (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 inco mpatible 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 Educatio n Association , 460 U.S. at 50-51, instructing that a restriction on speech is "re asonable" when it is "consistent with the [state's] legitimat e interest in preserving the property for the use to which it is lawfull y dedicated."

The distr ict court relied on Sentinel Communications when it stated that there is a constitutional right to distribute and circulate newspaper s through the use of newsracks. 936 F.2d at 1196. The Eleventh Circui t relied on a number of cases in reaching this con clusion, 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 o f 6 Lakewood

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did not decide the question. 486 U.S. at 762 n. 7 ("we do not pass on [th e dissent's] view that a city may constitutionally prohibit the placement of newsracks on public property"). In addition, there is, at least, a d isagreement among members of the Supreme Court on whether a city may prohibit new sracks from public rightsof-way. Several justices have stated that the right to distribut e newspa pers does not include the right to distribute newspapers usin g newsracks. City of Lakewood , 486 U.S. at 778 (White, J., dissenting ) (citing Breard v. Alexandria , 341 U.S. 622, 642 (1951)). Justice Whit e specif icallyconcluded that although a newspaper publisher may have th e right to distribute newspapers, this right does not "encompass the right to take city property . . . and appropriate it f or . . . 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 challe nge to a city ordinance governing the licensing of sidewal k newsstands

. Id. at 1311. A plurality of five judges, distinguishin g newsracks from newsstands, concluded that a newsstand on public property
was not e ntitled to First Amendment protection. Id. at 1314-17. Seve n other judges, however, disagreed. See id. at 1327-28 (Flaum, J. , concur ring, joined by Cudahy, J.) (writing separately to "emphasize my belief that the erect ion and maintenance of newspaper stands qualifies as conduct

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commonl y associated with expression . . . implicat[ing] the Firs t Amend ment'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 expres sive activity); id . at 1335 (Cummings, J., dissenting, joined b y Bauer, J., and Fairchild, J.) (same). Thus, although Graff considered a licensing scheme and not a ban on all newsracks, it reinforces our vie w tha t the state's prohibition is unreasonable and cannot square with th e Fi rst Amendment. Because the statutes here go far beyond merel y prohibiting newspaper vending machines, we are n ot faced with deciding the First Amendment limitations on time, place, and manner regulation o f newsracks and vending machines. The three statutes prohibit all commercia l distri butionof newspapers. The state has presented no credibl e explanation why the d istribution 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 prot ected speech"); International Caucus of Labor Comms.

v. Ci ty of Montgomery , 87 F.3d 1275, 1278 (11th Cir. 1996) (discussin g significance of newsracks in public places). We conclude that the statute s are unconstitutional insofar as they ban the dis tribution of newspapers at interstate rest areas.

Howard a nd Holden's argument that Jacobsen did not have a contrac t with the state to dis tribute 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 hesit ation in deciding that the distribution of newsp apers at an interstate rest area is fully compatible withthe state's interests in providing safety, rest, and information to interstate travelers.

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We c onclude that the state statutes are unreasonable, and affirm th e district court's ruli ng that the statutes are unconstitutional as applied to Jacobsen.

II.

Because we hold the statutes are unconstitutional as applied t o Jacobsen, we need not decide whether the statutes are facially overbroad as held by the district court. However, we poin t out that the overbreadth doc trine is "strong medicine," Broadrick v. Oklahoma , 413 U.S. 601, 61 3 (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 ma y validly be prohibited or sanctioned . . . to challenge a statute on its face because it also threatens other s not before the court--those who desire to engage in legally protecte d expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partiall y invalid.

Brockett v. Spokane Arcades, Inc. , 472 U.S. 491, 503 (1985). "[T]here mus t be a realistic danger that the statute itself will significantly compromis e recognized First Amendment protections of partie s 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 fo r Vincent , 466 U.S. 789, 801 (1984)).
"It is not the usual judicial practi ce, . . . 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 facia l challenge "would convert the use of the overbreadth doctrine from a necessarymeans of vindicating the plaintiff's own right not to be bound by a statute

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that i s unconstitutional into a means of mounting gratuitous wholesal e attacks upon state and federal laws." Id. at 485. Because we conclud e that the statutes are invalid as applied, it is appropriate that we no t consider the overbreadth issue. See id. Similarly, the district cour t shou ld have first considered the validity of the statutes as applie d instead of reaching the overbreadth question in the first instance. Had the district court done so, it also would have found it unnecessary t o consider the overbrea dth issue. Accordingly, we must vacate that portion of t he district court's opinion and judgment that holds the statute s overbroad.

III.

Our conclusion that the statutes are unconstitutional undercut s Holden's and Howard's remaining argument that we should uphold the statute s under the incidental speech doctrine. "[W]hen 'speech' and 'nonspeech ' elements are combined in the same course of conduct, a sufficientl y important governmental interest in regulating the nonspeech element ca n justify incidental limitations on First Amendment freedoms." United State s
v. O'Brie n , 391 U.S. 367, 376 (1968). We will uphold an incidenta l regulation of speech if the regulation:

is within the constitutional power of the Government; if i t furthers an important or substantial governmental interest; if the go vernmental interest is unrelated to the suppression o f free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is esse ntial to the furtherance of that interest.

Id. at 377.

Howard and Holden contend that the p urpose behind the statutes is to prohib it all commercial activity at interstate rest areas, and thi s 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 vacat e the portion of the district court's opinion and judgmen t holding that the statutes are facially overbroad, and we affirm th e remainder of the judgment of the district court.

A true copy.

Attest:

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