United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2011 Decided July 13, 2012

No. 10-5337

INITIATIVE AND REFERENDUM INSTITUTE, ET AL.,

APPELLANTS

v.

UNITED STATES POSTAL SERVICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:00-cv-01246)

David F. Klein argued the cause for appellants. With him 

on the briefs were Mark S. Davies, Matthew G. Jeweler, and 

Arthur B. Spitzer.

Alice Neff Lucan and René P. Milam were on the brief for 

amici curiae Newspaper Association of America, et al. in 

support of appellants.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued 

the cause for appellee. With her on the brief were Ronald C. 

Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant 

U.S. Attorney.
2

Before: HENDERSON, BROWN, and GRIFFITH, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Circuit Judge BROWN.

GRIFFITH, Circuit Judge: This appeal is the latest step in a 

long-running controversy over the use of post office 

sidewalks to gather signatures on petitions. Originally a 

dispute over a ban on soliciting signatures on all post office 

property, the issues in the case have changed in response to a 

decision of ours and subsequent revisions to Postal Service 

regulations. Before us now is a facial challenge to a ban on 

collecting signatures on post office sidewalks that do not run 

along public streets. We agree with the district court that the 

ban does not violate the First Amendment. 

I

In 1998, the Postal Service banned “soliciting signatures 

on petitions” on “all real property under the charge and 

control of the Postal Service.” 39 C.F.R. § 232.1(a), (h)(1) 

(2002). Violations are punishable by a criminal fine and 

imprisonment. Id. § 232.1(p)(2).

The appellants use sidewalks on postal property to 

circulate petitions aimed at placing initiatives and referenda 

on state and local election ballots. In 2000, they brought a 

facial challenge to the 1998 ban, arguing it violated the First 

Amendment. Following discovery, both parties moved for 

summary judgment. At a hearing on those dueling motions, 

the Postal Service announced that the ban would not extend to 

sidewalks that form the perimeter of post office property and
3

are indistinguishable from adjacent public sidewalks,

1 and

that the regulation would be enforced only against the 

collecting of signatures, not the mere asking for them. See

Mots. Hr’g Tr. 29, 32-34, Sept. 24, 2002. The Postal Service

also said it would “issue a bulletin to its postmasters directing 

them to adhere to this changed position.” Initiative & 

Referendum Inst. v. U.S. Postal Serv., No. 00-1246, Order at 1 

(D.D.C. Sept. 26, 2002). 

The district court granted summary judgment for the 

Postal Service, holding that the regulation, as narrowed by the 

newly announced enforcement policy, was a reasonable time, 

place, or manner restriction that would pass constitutional 

muster even on sidewalks that were public forums. Initiative 

& Referendum Inst. v. U.S. Postal Serv., 297 F. Supp. 2d 143, 

154 (D.D.C. 2003). Reaching that conclusion, the district 

court did not need to decide if they were. 

We reversed the district court, holding that the ban would 

be an impermissible restriction on expressive activity if postal 

sidewalks were public forums because it was not narrowly 

tailored to target disruptive activity and did not allow for 

petitioning anywhere on postal property. Initiative & 

Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1306-07 

(D.C. Cir. 2005). We remanded the case for the district court 

to determine whether the ban reached “a substantial number”

 1 We refer to these as Grace sidewalks. In United States v. 

Grace, 461 U.S. 171 (1983), the Supreme Court held that the 

“sidewalks forming the perimeter of the Supreme Court grounds” 

are traditional public forums, places where expressive activity is 

lightly regulated, because they are “indistinguishable from any 

other sidewalks in Washington, D.C.” Id. at 179-80. 
4

of public forums.2 Id. at 1313. To guide the district court, we 

noted that interior postal sidewalks “may be hard to 

categorize” but that Grace sidewalks are surely public forums

where the regulation may not be enforced. Id. at 1313-14. 

Contrary to the argument of the Postal Service that its new 

enforcement policy corrected the regulation’s defect as to 

Grace sidewalks, we held that placing them beyond its reach 

was not a plausible construction of a regulation whose express 

terms still applied to all postal property. Id. at 1317-18. We 

also identified a different problem with the regulation: Even

in nonpublic forums restrictions must be reasonable, and a 

ban on merely asking for signatures would not be. Id. at 1314-

16. The Postal Service’s new enforcement policy, however,

remedied that infirmity by plausibly construing the ban to bar 

only the actual collection of signatures. Id. at 1317.

While the matter was before the district court on remand, 

the Postal Service amended its regulations to account for our 

discussion of the new enforcement policy. The 2010 

regulations prohibit “collecting” signatures, but not 

“soliciting” them, on all postal property other than Grace

sidewalks. 39 C.F.R. § 232.1(a), (h)(1) (2010) (prohibiting 

“collecting signatures on petitions” on all postal property 

except “sidewalks along the street frontage of postal 

property . . . that are not physically distinguishable from 

adjacent municipal or other public sidewalks”).

Which brings us to the present controversy: The 

appellants argue that § 232.1(h)(1) is still unconstitutional on 

 2 We explained that the appellants could sustain their facial 

challenge to the regulation by showing that it restricts “a substantial 

amount of protected free speech, judged in relation to [its] plainly 

legitimate sweep.” Initiative & Referendum Inst., 417 F.3d at 1312 

(quoting Virginia v. Hicks, 539 U.S. 113, 118-19 (2003) (citation 

and internal quotation marks omitted)). 
5

its face because the sidewalks to which it applies are public 

forums. In response to the district court’s request for a more 

complete factual record, the parties sent a questionnaire to 

selected postmasters asking about the nature and frequency of 

expressive activity on various types of postal sidewalks. The 

appellants argued that the survey results showed that many 

interior sidewalks at post offices are public forums and moved 

for summary judgment on that ground. And even if they were 

not, the appellants claim the regulation still violates the First 

Amendment because it is unreasonable. The appellants also 

asked the district court to enjoin enforcement of the regulation 

on Grace sidewalks. The Postal Service countered with its 

own motion for summary judgment, arguing that the regulated

sidewalks are not public forums and the regulation is 

reasonable. The district court sided with the Postal Service 

and also held that the express exemption of Grace sidewalks 

from the regulation mooted the request for injunctive relief. 

Initiative & Referendum Inst. v. U.S. Postal Serv., 741 F. 

Supp. 2d 27, 35, 41 (D.D.C. 2010). This appeal followed. We 

exercise jurisdiction pursuant to 28 U.S.C. § 1291.

II

The first question we must decide is whether interior 

postal sidewalks are public forums. It is hard to imagine many 

activities more central to the purpose of the First Amendment 

than collecting signatures on a petition with the goal of 

placing an issue before the electorate. Yet even such a

worthwhile endeavor is not altogether free of government 

regulation when it takes place on government property 

dedicated to other types of public business. 

We analyze restrictions on expressive activity on 

government property for compliance with the First 

Amendment under the public forum doctrine. This approach 
6

divides government property into three categories, and the 

category determines what types of restrictions will be 

permissible. The “traditional public forum” category consists 

of property that has “by long tradition or by government 

fiat . . . been devoted to assembly and debate.” Perry Educ. 

Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 

(1983). Quintessential examples are streets and parks, which 

“have immemorially been held in trust for the use of the 

public, and, time out of mind, have been used for purposes of 

assembly, communicating thoughts between citizens, and 

discussing public questions.” Id. (quoting Hague v. CIO, 307 

U.S. 496, 515 (1939)) (internal quotation marks omitted). In

such a forum we subject content-based restrictions on speech 

to strict scrutiny, but use the less demanding time, place, or 

manner test to assess content-neutral restrictions. Id. A

“designated public forum” is property that “the State has 

opened for use by the public as a place for expressive 

activity.” Id. Expressive activity there may be restricted to 

particular groups or subjects. Id. at 46 n.7. A “nonpublic 

forum” is “not by tradition or designation a forum for public 

communication.” Id. at 46. In these places the government

may “reserve the forum for its intended purposes, 

communicative or otherwise, as long as the regulation on 

speech is reasonable and not an effort to suppress expression 

merely because public officials oppose the speaker’s view.”

Id.

In United States v. Kokinda, 497 U.S. 720 (1990), the 

Supreme Court addressed but did not resolve the question 

before us: whether interior sidewalks at post offices are public 

forums. At issue was a Postal Service regulation that 

prohibited “[s]oliciting alms and contributions” on a sidewalk 

that led from the parking lot to the front door of the post 

office building. Id. at 722-23 (plurality opinion). Writing for a 

plurality, Justice O’Connor explained that the forum analysis 
7

turns on more than whether the government property is a 

sidewalk: “the location and purpose of a publicly owned 

sidewalk” are key. Id. at 727-29. The plurality concluded that

this sidewalk was not a public forum because “it [led] only 

from the parking area to the front door of the post office” and 

“was constructed solely to provide for the passage of 

individuals engaged in postal business.” Id. at 727. Unlike 

other sidewalks, it was not a “public passageway” meant “to 

facilitate the daily commerce and life of the neighborhood or 

city.” Id. at 727-28. Justice Kennedy concurred in the 

judgment upholding the regulation but would not join the 

plurality’s conclusion that the sidewalk was not a public 

forum. Noting there was “a powerful argument” that the 

sidewalk was “more than a nonpublic forum,” he nevertheless 

found no need to reach that issue because the regulation was 

in his view a valid time, place, or manner restriction. Id. at 

737-38 (Kennedy, J., concurring in the judgment). 

Five courts of appeals have addressed the status of 

interior postal sidewalks under the public forum doctrine and 

all have agreed with the plurality that they are not public 

forums. See Del Gallo v. Parent, 557 F.3d 58 (1st Cir. 2009); 

Paff v. Kaltenbach, 204 F.3d 425 (3d Cir. 2000); Jacobsen v. 

U.S. Postal Serv., 993 F.2d 649 (9th Cir. 1992); Longo v. U.S. 

Postal Serv., 983 F.2d 9 (2d Cir. 1992); United States v. 

Belsky, 799 F.2d 1485 (11th Cir. 1986). We join their ranks. 

No court of appeals has held otherwise, except the Fourth 

Circuit which was reversed by the Supreme Court in Kokinda. 

United States v. Kokinda, 866 F.2d 699 (4th Cir. 1989), rev’d, 

497 U.S. 720. 

Like the Kokinda plurality, we recognize that “[t]he

dispositive question is not what the forum is called, but what 

purpose it serves, either by tradition or specific designation.” 

Boardley v. U.S. Dep’t of Interior, 615 F.3d 508, 515 (D.C. 
8

Cir. 2010). We agree with Justice O’Connor that it is not 

enough to know that the regulated property is a sidewalk. 

True, we start “at a very high level of generality” where there 

is “a working presumption that sidewalks, streets and parks 

are normally to be considered public forums.” Oberwetter v. 

Hilliard, 639 F.3d 545, 552 (D.C. Cir. 2011) (quoting 

Henderson v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir. 1992)) 

(internal quotation marks omitted). But then we must

“examine the history and characteristics of the particular 

property at issue, mindful ‘that when government has 

dedicated property to a use inconsistent with conventional 

public assembly and debate . . . then the inconsistency 

precludes classification as a public forum.’” Id. (quoting 

Henderson, 964 F.2d at 1182). In this case, the location, 

purpose, and history of interior postal sidewalks combine to 

show that they are not public forums.

Their location distinguishes them from “ordinary 

sidewalks used for the full gamut of urban walking.”

Henderson, 964 F.2d at 1182; see also Grace, 461 U.S. at 

179. Most lead only to the front door of the post office 

building, see Kokinda, 497 U.S. at 727 (plurality opinion), 

and a person stepping onto one would generally be aware that 

he was not on an ordinary sidewalk that runs along a public 

street, see Del Gallo, 557 F.3d at 71. That physical separation

from ordinary sidewalks suggests they are subject to greater 

regulation. See Int’l Soc’y for Krishna Consciousness, Inc. v. 

Lee (ISKCON), 505 U.S. 672, 680 (1992) (explaining that 

“separation from acknowledged public areas may serve to 

indicate that the separated property is a special enclave, 

subject to greater restriction”). 

Interior postal sidewalks also have a different purpose 

than ordinary sidewalks, which are generally open for “the 

free exchange of ideas.” See Cornelius v. NAACP Legal Def. 
9

& Educ. Fund, Inc., 473 U.S. 788, 800 (1985). Like streets, 

ordinary sidewalks are “not only a necessary conduit in the 

daily affairs of a locality’s citizens, but also a place where 

people may enjoy the open air or the company of friends and 

neighbors in a relaxed environment.” Heffron v. Int’l Soc’y 

for Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981). 

By contrast, interior postal sidewalks are not meant to serve 

as forums for free expression. They are neither public

thoroughfares nor gathering places, see Kokinda, 497 U.S. at 

727 (plurality opinion), but are typically used only by 

customers and employees of the post office and are built

solely to provide efficient access to the post office, see id. at 

728; Hintenach Decl. in Supp. of Def.’s Mot. for Summ. J. 

¶ 12.

There is no venerable tradition of using these sidewalks 

for expressive activities. It is no doubt true, as the appellants 

explain, that in the early days of the Republic post offices 

were “a favorite gathering place” among townsmen who 

congregated to discuss the news of the day and gossip.

Appellants’ Br. 31-36 (quoting RICHARD R. JOHN, SPREADING 

THE NEWS: THE AMERICAN POSTAL SYSTEM FROM FRANKLIN 

TO MORSE 161 (1995)); see also John Dep. 36:20-37:10, Jan. 

4, 2002. But post offices then were not quite the same as post 

offices now. Historically, a post office consisted of a desk or 

counter in a store, tavern, or coffeehouse. See John Dep. 42:6-

43:6; JAMES H. BRUNS, GREAT AMERICAN POST OFFICES 3

(1998); JOHN, supra, at 113. “[P]ost offices were rarely 

located in a freestanding building,” and “[a]lmost none were 

owned by the government outright.” JOHN, supra, at 113. The 

history the appellants cite tells us little about interior postal 

sidewalks, which are a comparatively recent development. Cf.

ISKCON, 505 U.S. at 680-81 (explaining that the lateness 

with which the modern air terminal made its appearance 
10

precludes a finding that it has been used for expressive 

activity “time out of mind”).

The appellants argue that interior postal sidewalks are 

public forums because they are widely used for expressive 

activity. They contend that the results of the postmaster 

survey show that much public discourse takes place on postal 

sidewalks and there is no significant difference between what

takes place on Grace sidewalks and what takes place on

interior postal sidewalks. Appellants’ Br. 36-40; see also

Kadane Decl. 4-5, Mar. 28, 2008. In fact, the survey results 

show that only about 7% of the postmasters who responded

had ever observed people using Grace or interior sidewalks 

for expressive activity. Kadane Decl. Ex. 2 (358 postmasters 

said that exterior spaces have been used for expressive 

activities and 4,736 said they have not). Even if all the 

observed activity occurred on interior sidewalks, we are hard 

pressed to agree with the appellants that it is a substantial

amount. These results do not show that a substantial number 

of these sidewalks have been used for political activity and 

expression with “sufficient historical regularity” to make 

them traditional public forums. Initiative & Referendum Inst., 

741 F. Supp. 2d at 37; see also Del Gallo, 557 F.3d at 71 

(finding that “the Pittsfield Post Office sidewalk has not 

consistently, historically ‘been used for public assembly and 

debate,’ nor was it intended to be used as such” (citation 

omitted)). Further, “comparing the frequency of expressive 

activity within the recent past on the two types of sidewalks 

sheds little, if any, light on the forum status of [interior] 

sidewalks.” Initiative & Referendum Inst., 741 F. Supp. 2d at 

38. The relevant inquiry is whether these sidewalks have 

historically been used for public discourse. Id. And Grace

sidewalks are public forums because they are 

indistinguishable from ordinary sidewalks, not because of the 
11

quantum of expression that happens on them. Grace, 461 U.S. 

at 179. 

Nor does the survey show that interior postal sidewalks 

are designated public forums. That the Postal Service has 

allowed certain expressive activities on them does not 

transform them into designated public forums because “[t]he 

government does not create a public forum by . . . permitting 

limited discourse, but only by intentionally opening a 

nontraditional forum for public discourse.” Kokinda, 497 U.S. 

at 730 (plurality opinion) (quoting Cornelius, 473 U.S. at 802) 

(internal quotation marks and emphasis omitted). There is no 

evidence in this case that the Postal Service intended to make 

sidewalks used primarily by customers and employees to get 

into the post office “generally available” for expressive 

activity. See Ark. Educ. Television Comm’n v. Forbes, 523 

U.S. 666, 677 (1998). Because interior postal sidewalks are 

neither traditional nor designated public forums, we review 

the regulation’s application to them for its reasonableness. 

Kokinda, 497 U.S. at 730 (plurality opinion). 

III

The appellants argue that even if they are nonpublic 

forums, banning the collection of signatures on interior postal 

sidewalks is still unconstitutional because it is unreasonable. 

Perry, 460 U.S. at 46 (holding that restrictions on speech in 

nonpublic forums must be reasonable). A regulation is

reasonable if it is consistent with the government’s legitimate 

interest in maintaining the property for its dedicated use. Id. at 

50-51. And the restriction “need only be reasonable; it need 

not be the most reasonable or the only reasonable limitation.” 

Cornelius, 473 U.S. at 808. According to the Postal Service, 

its customers and employees have complained that collecting

signatures on postal sidewalks blocks the flow of traffic into 
12

and out of the post office building. The Postal Service also

seeks to avoid the appearance of endorsing the group 

collecting signatures.

The appellants respond that there is no reasonable fit 

between those interests and the regulation. They think the ban 

unnecessary because “[d]isorderly conduct” and “imped[ing]

ingress . . . or egress” are already proscribed. See 39 C.F.R. 

§ 232.1(e). But certainly the Postal Service is free to adopt 

multiple means to ensure that customers visiting the post 

office can transact their business unimpeded. See Initiative & 

Referendum Inst., 417 F.3d at 1309 (“Of course, the 

availability of other means of accomplishing a governmental 

objective does not foreclose the government’s ability to 

pursue its chosen course.”). In a nonpublic forum the 

government need not adopt the most narrowly tailored means 

available. Cornelius, 473 U.S. at 809.

The appellants also argue that it is unreasonable to 

distinguish between soliciting signatures and collecting them 

because both are equally disruptive. But we previously made 

that very distinction, looking askance at a ban on pure 

solicitation, but concluding that a ban on collection would be 

permissible. See Initiative & Referendum Inst., 417 F.3d at 

1314-17. The Postal Service is simply following our lead. 

Tracking the analysis of the plurality and Justice Kennedy in

Kokinda, we observed that different consequences are likely 

to follow from merely asking postal customers for their 

signatures and actually collecting them. Id. at 1317. 

Collecting contributions involves the type of immediate 

response the Kokinda plurality thought could be reasonably 

banned because it would cause postal customers to stop, 

transact the business requested, and thus disrupt the flow of 

traffic at the post office. Kokinda, 497 U.S. at 733-34

(plurality opinion). By contrast, the plurality thought that 
13

distributing a leaflet that merely asked postal patrons for their 

help posed no such risk and could not reasonably be banned. 

Id. at 734. Justice Kennedy made a similar point when he 

concluded it would be reasonable to ban a request that 

naturally leads to an immediate response that would disrupt 

customer traffic at the post office. Id. at 738-39 (Kennedy, J., 

concurring in the judgment). That distinction, we have already 

determined, is meaningful, and while a ban on pure 

solicitation is unreasonable, a ban on collection is not. 

Initiative & Referendum Inst., 417 F.3d at 1317. That 

discussion, which the Postal Service followed in crafting the 

regulation before us, controls our disposition. 

IV

We said before that § 232.1(h)(1) could not be enforced 

on Grace sidewalks. They are public forums, and the ban on 

collecting signatures there is not a reasonable time, place, or 

manner restriction. Id. at 1313-14 (citing Grace, 461 U.S. at 

180). Although it seemed likely that many post offices had 

Grace sidewalks, making this restraint on protected speech 

“substantial,” we remanded the case for the district court to 

make that determination. Id. at 1314. We also noted that this 

part of the appellants’ challenge “may be pretermitted if the 

Postal Service amends the regulation to exclude [Grace]

sidewalks from the prohibition against solicitation.” Id. at 

1318. Based on our decision, the appellants sought to enjoin 

enforcement of § 232.1(h)(1) on Grace sidewalks, but the 

Postal Service beat them to the punch by amending the 

regulation to exempt Grace sidewalks. The district court 

ruled, therefore, that the appellants’ request was moot. 

Initiative & Referendum Inst., 741 F. Supp. 2d at 34-35. We 

agree. 
14

“Federal courts lack jurisdiction to decide moot cases 

because their constitutional authority extends only to actual 

cases or controversies.” Iron Arrow Honor Soc’y v. Heckler, 

464 U.S. 67, 70 (1983). “Even where litigation poses a live 

controversy when filed,” a federal court must “refrain from 

deciding it if events have so transpired that the decision will 

neither presently affect the parties’ rights nor have a morethan-speculative chance of affecting them in the future.” Am.

Bar Ass’n v. FTC, 636 F.3d 641, 645 (D.C. Cir. 2011). The

intervening event here is of the Postal Service’s own doing. 

“[G]enerally voluntary cessation of challenged activity does 

not moot a case,” unless “the party urging mootness 

demonstrates that (1) ‘there is no reasonable expectation that 

the alleged violation will recur’ and (2) ‘interim relief or 

events have completely or irrevocably eradicated the effects 

of the alleged violation.’” Nat’l Black Police Ass’n v. District 

of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (quoting 

Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).

A challenge to a superseded law is rendered moot unless 

“there [is] evidence indicating that the challenged law likely 

will be reenacted.” Id. The case primarily relied upon by the

appellants had just such evidence. See City of Mesquite v. 

Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.11 (1982) (noting 

that the city had announced its intent to reenact the challenged 

ordinance). There is no evidence in this case to suggest the 

Postal Service has anything like that in mind. “[T]he mere 

power to reenact a challenged law is not a sufficient basis on 

which a court can conclude that a reasonable expectation of 

recurrence exists.” Nat’l Black Police Ass’n, 108 F.3d at 349. 

It is implausible that the Postal Service would have gone 

through the cumbersome process of amending its regulation to 

exempt Grace sidewalks only to re-amend the regulation after 

this case is resolved to once again cover them, especially 
15

when we have already said that it would be unconstitutional to 

do so. 

Because the challenged regulation no longer applies to 

Grace sidewalks, the amendment “completely and irrevocably

eradicated the effects of the alleged violation.” Id. at 350. At 

this point, “declaratory and injunctive relief would no longer 

be appropriate.” Id.

V

The judgment of the district court is 

Affirmed.
BROWN, Circuit Judge, concurring: I join the Court’s 

public forum analysis in full, and given our holding in 

Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 

1299, 1314–17 (D.C. Cir. 2005), I join my colleagues in 

acknowledging the Postal Service’s scheme of banning 

signature-collection while permitting signature-solicitation is 

one we previously approved. After all, as the Court explains, 

the Postal Service is merely “following our lead” from that 

case, Majority Op. at 12, since we suggested there that 

banning only same-place signature-collecting would “cure the 

problem” posed by an outright ban on solicitation of 

signatures. 417 F.3d at 1317. 

But this half-a-loaf solution seems more persnickety than 

practical. The harms about which the Postal Service is 

concerned—the impeding of traffic and the appearance of 

Postal Service endorsement, Majority Op. at 11–12—and, 

indeed, all of the harms I can imagine,1

 accrue in the initial, 

permitted phase of a signature-gathering encounter: the 

solicitation. 

As I imagine an encounter under the current set of 

regulations, a postal patron will approach the door to a post 

office. The patron will then be approached by a signaturegatherer and asked to sign a petition, at which point, one of 

two things will happen: the patron may ignore the signature-

 

1

 For example, Frederick Hintenach, a Postal Service official 

involved in writing the regulation, testified that “what drove the 

intrusiveness was the fact that [postal patrons] were being 

approached as they were trying to get in and out of the building.” 

Hintenach Dep. at 85 (emphasis added). This remains permitted. 

Hintenach went on to say, “I don’t think our customers or our 

employees should be subjected to the opinions of someone else if 

they don’t choose to do so. And referendum and signature 

collection forces that interaction.” Id. at 94. The permitted 

solicitation “forces” that same interaction. 
2 

gatherer, giving him the brush-off and walking right into the 

post office, or seek to sign the petition. All of these 

interactions are permitted. Once the patron expresses an 

interest in signing the petition, however, the signaturegatherer will have to explain that postal regulations prohibit 

collecting signatures in this location, and invite the patron to 

move to the nearest Grace sidewalk to affix his signature.2

From the perspective of the uninterested patron, the 

disruption is the same, collection or no collection. But from 

the perspective of the interested patron, the disruption is only 

increased by the awkward two-step required by the 

regulations—that patron must further deviate from her postal 

business in order to complete her interaction with a signaturegatherer. Whatever doorway impedance is alleviated by 

moving signature-collection offsite is surely netted out by the 

necessarily lengthier explanations of the convoluted rules. 

Nor does this arrangement dissipate concern about the 

Postal Service’s apparent endorsement of the message of 

signature-gatherers. Postal patrons are unlikely to make any 

useful distinction on this score between soliciting signatures 

and collecting them. 

When the Supreme Court has evaluated similar speech 

restrictions, it has only encountered bans on solicitation, not 

bans on collection where solicitation remains permitted. 

Compare Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 

 

2

 Of the 24 states that allow citizen initiatives, 18 require petition 

circulators to personally witness each signature and to sign an 

affidavit to that effect. Nat’l Conf. of State Legis., Laws Governing 

Petition Circulators, http://www.ncsl.org/legislatureselections/elections/laws-governing-petition-circulators.aspx (last 

accessed June 25, 2012). Asking a supporter to mail in a signature 

at a later date is thus out of the question for at least these efforts. 
3 

505 U.S. 672, 676, 683–85 (1992) (upholding ban on inperson solicitation of money); United States v. Kokinda, 497 

U.S. 720, 724, 733 (1990) (“[T]he single issue before us [is 

whether] the Government’s prohibition of solicitation on 

postal sidewalks [is] unreasonable?”). Thus, while we can 

only commend the Postal Service for so assiduously following 

our directions, the Service may conclude, on further 

reflection, that the present compromise causes more confusion 

and disruption than it abates. In that case, the Service may 

decide to do what is sensible and permit the entire signaturegathering encounter—for that would surely not be 

unreasonable.