FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

POCATELLO EDUCATION 

ASSOCIATION; IDAHO EDUCATION

ASSOCIATION; PROFESSIONAL FIRE

FIGHTERS OF IDAHO, INC.; SERVICE

EMPLOYEES INTERNATIONAL UNION,

LOCAL 687; AFL-CIO,

Plaintiffs-Appellees,

v.

M No. 06-35004 ARK HEIDEMAN, in his official

capacity as Bannock County D.C. No.  Prosecuting Attorney, CV 03-0256 BLW

Defendant, OPINION

and

BEN YSURSA, in his official

capacity as Secretary of State for

the State of Idaho; LAWRENCE

WASDEN, in his official capacity as

Attorney General for the State of

Idaho,

Defendants-Appellants. 

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted

August 9, 2007—Seattle, Washington

Filed October 5, 2007

Before: William C. Canby, Jr., A. Wallace Tashima, and

Consuelo M. Callahan, Circuit Judges.

13527
Opinion by Judge Tashima

13528 POCATELLO EDUCATION ASS’N v. HEIDEMAN
COUNSEL

Clay R. Smith, Idaho Deputy Attorney General, Boise, Idaho,

for the defendants-appellants. 

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13529
Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C.,

for the plaintiffs-appellees. 

OPINION

TASHIMA, Circuit Judge: 

Plaintiff labor organizations (“Plaintiffs”) sued officials of

the State of Idaho, claiming that the Voluntary Contributions

Act (“VCA”), Idaho Code §§ 44-2004(2) and -2601 to -2605,

violated Plaintiffs’ constitutional rights under the First

Amendment as well as other constitutional provisions. Before

the district court, the State officials conceded that all challenged provisions were unconstitutional, except Idaho Code

§ 44-2004(2), which prohibits any payroll deductions for “political activities.” The district court held the ban on payroll

deductions to be constitutional as applied to the state government itself, but unconstitutional as applied to private and local

government employers. The State officials contend on appeal

that the payroll deduction ban may be constitutionally applied

to local government employers. We have jurisdiction pursuant

to 28 U.S.C. § 1291. 

We hold that Idaho Code § 44-2004(2), as applied to local

government employers, violates the First Amendment because

it is a content-based law for which the State officials assert no

compelling justification. Moreover, the State officials have

not demonstrated that the law should be reviewed under the

more relaxed standard applicable to speech restrictions in

nonpublic fora. In particular, they have not shown that the

State of Idaho may properly assert a proprietary interest in

controlling access to the payroll systems that constitute the

fora in this case. Caselaw suggests that the authority over

local governments the State possesses by operation of law is

not enough to associate the local workplaces or payroll deduction programs with the State of Idaho, and the State officials

13530 POCATELLO EDUCATION ASS’N v. HEIDEMAN
have adduced no specific evidence that the State actually does

own, administer, or control the payroll deduction programs. 

STANDARD OF REVIEW

We review de novo the district court’s decision on crossmotions for summary judgment, Arakaki v. Hawaii, 314 F.3d

1091, 1094 (9th Cir. 2002), applying the same standard used

by the trial court under Federal Rule of Civil Procedure 56(c),

Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110,

1131 (9th Cir. 2003). We must decide whether the record,

when viewed in the light most favorable to the non-moving

party, shows that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986); Guebara v. Allstate Ins. Co.,

237 F.3d 987, 992 (9th Cir. 2001). Mixed questions of law

and fact and ultimate conclusions of law receive de novo

review. Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, Inc., 515 U.S. 557, 567 (1995); Bose Corp.

v. Consumers Union of U.S., Inc., 466 U.S. 485, 501 (1984).

We may affirm the district court’s grant of summary judgment on any ground supported by the record. Enlow v. SalemKeizer Yellow Cab Co., 371 F.3d 645, 649 (9th Cir. 2004). 

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, the Idaho legislature enacted the VCA, a series of

amendments to Title 44 of the Idaho Code, including an

amendment to Chapter 20 (“Right to Work”). See 2003 Idaho

Sess. Laws Ch. 97, 340 (enacting H.B. 329 and S.B. 1176);

id. Ch. 340 (S.B. 1176). The Chapter 20 amendment states:

“Deductions for political activities as defined in chapter 26,

title 44, Idaho Code, shall not be deducted from the wages,

earnings or compensation of an employee.” Idaho Code § 44-

2004(2).1“Political activities” are defined as “electoral activi1The VCA also amended Idaho Code § 67-6605, allowing political

committees to “solicit or obtain contributions from individuals as provided

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13531
ties, independent expenditures, or expenditures made to any

candidate, political party, political action committee or political issues committee or in support of or against any ballot

measure.” Idaho Code § 44-2602(1)(e). 

Plaintiffs filed suit challenging the constitutionality of the

VCA, naming as defendants Bannock County Prosecuting

Attorney Mark Heideman, Idaho Attorney General Lawrence

Wasden, and Secretary of State Ben Ysursa (collectively,

“Defendants”). Plaintiffs sought declaratory and injunctive

relief from enforcement of § 44-2004(2) as violative of their

rights to free speech and equal protection under the First and

Fourteenth Amendments.2

Defendants conceded that several provisions of the VCA

were unconstitutional because they restricted the ability of

labor organizations to solicit political contributions, namely,

Idaho Code §§ 44-2601 to -2605. On cross-motions for summary judgment with respect to the remaining substantive provision banning payroll deductions for political activities, the

district court held that the payroll deduction prohibition violated the First Amendment to the extent it applied to local

government employers and private employers. It also held,

however, that the payroll deduction ban could be applied conin chapter 26, title 44, Idaho Code, or as provided in section 44-2004,

Idaho Code.” 

Finally, the VCA added the following subsection to Idaho Code § 44-

2004: 

(3) Nothing in this chapter shall prohibit an employee from personally paying contributions for political activities as defined in

chapter 26, title 44, Idaho Code, to a labor organization unless

such payment is prohibited by law. 

See 2003 Idaho Sess. Laws ch. 97 (enacting H.B. 329). 

2The district court denied Eleventh Amendment immunity to Wasden

and Ysursa and that denial was affirmed on appeal. Pocatello Educ. Ass’n

v. Heideman, 123 F. App’x 765 (9th Cir. 2005). 

13532 POCATELLO EDUCATION ASS’N v. HEIDEMAN
stitutionally to the State’s own payroll system, i.e., to employees of the State of Idaho. Accordingly, the court granted in

part and denied in part both motions. Pocatello Educ. Ass’n

v. Heideman, 2005 WL 3241745 (D. Idaho 2005). Ysursa and

Wasden (“Appellants”) now appeal the district court’s ruling

that § 44-2004(2) is unconstitutional with respect to local

government employers and school district employers.3

ANALYSIS

Idaho Code § 44-2004(2) burdens speech by diminishing

Plaintiffs’ ability to conduct any of the activities defined by

the Idaho Code as “political.” The term “political activities”

is broadly defined to include virtually all types of electioneering, including “electoral activities” as well as spending on

behalf of or against candidates, ballot measures, political

action or issue committees, or parties. See Idaho Code § 44-

2602(1)(e). 

The First Amendment provides that “Congress shall make

3School districts are but one category of local governmental entities in

Idaho. The Idaho Constitution specifically recognizes cities and counties.

Idaho Const. art. XII, § 1 (providing for incorporation of cities and towns),

Code § 50-201; Idaho Const. art. XVIII, §§ 1-12 (county organization);

see also Idaho Code § 50-201. In addition, the state legislature has created

“[a] wide variety of special districts,” including school districts. See

Michael C. Moore, The Idaho Constitution & Local Governments —

Selected Topics, 31 Idaho L. Rev. 417, 422 & n.29 (1995) (discussing the

creation by statute of local government units such as regional airport

authorities, cemetery maintenance districts, fire protection districts, ambulance districts, regional solid waste disposal districts, recreation districts,

school districts, library districts, hospital districts, mosquito abatement

districts, highway districts, water and sewer districts, irrigation districts,

and auditorium districts). Although Appellants’ briefs and the district

court’s order sometimes refer to school districts as distinct from local government, the First Amendment analysis undertaken here applies to all local

governmental entities. Therefore, except where relevant under Idaho law,

we do not separate or separately discuss school district employers from

other local government employers. 

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13533
no law . . . abridging the freedom of speech, or of the press;

or the right of people peaceably to assemble, and to petition

the Government for a redress of grievances.” The Fourteenth

Amendment renders that prohibition applicable to the States.

See, e.g., Thornhill v. Alabama, 310 U.S. 88, 95 (1940)

(explaining that freedom of speech is one of the fundamental

personal rights and liberties secured against state abridgment

by the Fourteenth Amendment). 

This restriction on voluntary political contributions burdens

political speech, which is protected by the First Amendment;

indeed, political speech is a “central concern” of First Amendment jurisprudence. See Burson v. Freeman, 504 U.S. 191,

196 (1992) (plurality opinion); accord, Fed. Election Comm’n

v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2664 (2007); Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 657

(1990); Ariz. Right to Life Political Action Comm. v. Bayless,

320 F.3d 1002, 1008 (9th Cir. 2003). “[T]here is practically

universal agreement that a major purpose of that Amendment

was to protect the free discussion of governmental affairs.”

Mills v. Alabama, 384 U.S. 214, 218 (1966). 

The law does not prohibit Plaintiffs from participating in

political activities, but it hampers their ability to do so by

making the collection of funds for that purpose more difficult.

The district court found that unions face substantial difficulties in collecting funds for political speech without using payroll deductions because of their members’ concerns over

identity theft associated with other electronic transactions, as

well as the time-consuming nature of face-to-face solicitation.

The district court found that the payroll deduction ban would

decrease the revenues available to Plaintiffs to use for political speech. Restricted funding will, therefore, diminish Plaintiffs’ ability to engage in political speech, and § 44-2004(2) is

properly viewed as a regulation of protected speech. Cf.

Meyer v. Grant, 486 U.S. 414, 420-23 (1988) (holding that a

Colorado law prohibiting the payment of circulators of initiative petitions is properly viewed as a burden on political

13534 POCATELLO EDUCATION ASS’N v. HEIDEMAN
speech because its effect was to limit the number of voices

who would convey a petition’s message, limit the size of the

audience who would receive the message, and make it less

likely the petition would gain enough signatures to earn placement on the state ballot). 

The law on its face prohibits payroll deductions only for

political activities. This is subject-matter discrimination,

which is a form of content discrimination. Consol. Edison Co.

v. Pub. Serv. Comm’n, 447 U.S. 530, 537-38 (1980); see also

Burson, 504 U.S. at 197 (holding a Tennessee law prohibiting

speech related to a political campaign near polling places to

be a content-based restriction); Bayless, 320 F.3d at 1009

(holding a state statute restricting only expenditures which

expressly advocate election or defeat of a candidate to be a

content-based restriction). 

Ordinarily, because we are dealing with content-based

restriction of political speech, we would evaluate its validity

under strict scrutiny. Fed. Election Comm’n, 127 S. Ct. at

2664. Indeed, content-based regulations of speech are generally presumptively invalid, under the rationale “that content

discrimination ‘raises the specter that the Government may

effectively drive certain ideas or viewpoints from the marketplace.’ ” R.A.V. v. City of St. Paul, 505 U.S. 377, 387 (1992)

(quoting Simon & Schuster, Inc. v. Members of N.Y. State

Crime Victims Bd., 502 U.S. 105, 116 (1991)). To be constitutional, § 44-2004(2) must be narrowly tailored to serve a compelling interest. Fed. Election Comm’n, 127 S. Ct. at 2664. As

Appellants proffer no compelling interest in favor of the law,

both sides agree that it would easily fail strict scrutiny.4

Strict scrutiny, however, is not applied in all circumstances

4The parties appear to agree that this is the proper outcome with respect

to the payroll deductions of private employers, as Appellants do not challenge on appeal the district court’s holding that § 44-2004(2) is unconstitutional with respect to this group. 

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13535
involving content-based restrictions. See Davenport v. Wash.

Educ. Ass’n, 127 S. Ct. 2372, 2381 (2007). Appellants contend that two excepted circumstances apply here, and it is to

that argument that we now turn. 

I. Government-Subsidized Speech

[1] In general, government may refrain from paying for

speech with which it disagrees. See, e.g., Regan v. Taxation

With Representation, 461 U.S. 540, 544-46 (1983) (explaining that Congress may make content-based distinctions when

it subsidizes speech, in that case by granting to qualifying

organizations the amount of income taxes they would otherwise owe); Chamber of Commerce v. Lockyer, 463 F.3d 1076,

1080, 1096-97 (9th Cir. 2006) (en banc) (California law prohibiting the use of state grant and program funds on activities

related to union organizing did not infringe affected employers’ First Amendment rights). The nonsubsidy doctrine is

premised on the rationale that the government is free to confer

no benefit at all and is therefore entitled to condition the

receipt of the benefit on speech or silence. See Regan, 461

U.S. at 549-50; but cf. Legal Aid Soc’y v. Legal Servs. Corp.,

145 F.3d 1017, 1024-29 (9th Cir. 1998) (discussing unconstitutional restrictions upon which the government may not condition receipt of a benefit). 

[2] Applying this doctrine, the district court held that the

State of Idaho could properly forbid payroll deductions of its

own employees to be used for union activities, as the First

Amendment imposes no obligation to subsidize union and

employee speech by paying for the administration of the payroll deductions. Pocatello Educ. Ass’n, 2005 WL 3241745, at

*2; cf. Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307,

319-20 (6th Cir. 1998); S.C. Educ. Ass’n v. Campbell, 883

F.2d 1251, 1257 (4th Cir. 1989). The parties appear to be in

agreement as to this point, and the holding is unchallenged on

appeal. As the district court noted, however, there is no sub13536 POCATELLO EDUCATION ASS’N v. HEIDEMAN
sidy by the State of Idaho for the payroll deduction systems

of local governments. 

II. Forum Analysis

In certain cases, regulation of speech on government property is not subject to strict scrutiny. In particular, it is well

established “that, when the government permits speech on

government property that is a nonpublic forum, it can exclude

speakers on the basis of their subject matter, so long as the

distinctions drawn are viewpoint neutral and reasonable in

light of the purpose served by the forum.” Davenport, 127

S. Ct. at 2381; see also Ark. Educ. Television Comm’n v.

Forbes, 523 U.S. 666, 682-83 (1998) (approving exclusion of

independent political candidate from public television debate

because he had little popular support). Appellants invoke this

doctrine, arguing that the proper way to view the statute is to

look at the payroll deduction programs of local governments

as nonpublic fora belonging to the State.5 Appellants argue

that § 44-2004(2) is therefore valid because it is viewpoint

neutral, applying to all employers and to any type of political

contribution, and assert that the restriction “is plainly reasonable given Idaho’s interest in its payroll system not assisting

or having the appearance of assisting with political matters.”

A.

[3] Government regulation of speech in public spaces has

historically been governed by the public forum doctrine. See

United States v. Kokinda, 497 U.S. 720, 725-27 (1990)

5Appellants assert their First Amendment forum-analysis argument for

the first time on appeal. We usually consider such arguments to be waived.

See Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 n.4 (9th Cir. 2002);

United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978). It is within our

discretion, however, to consider pure questions of law raised for the first

time on appeal. See Janes, 279 F.3d at 888 n.4; Patrin, 575 F.2d at 712.

Because Appellants present their forum-analysis argument as a pure question of law, we exercise our discretion to address it. 

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13537
(explaining development of doctrine); Perry Educ. Ass’n v.

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

(formally classifying public property into three groups). The

extent to which the government can control access depends on

the nature of the relevant forum. Cornelius v. NAACP Legal

Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800 (1985). The

traditional public forum includes property characterized, “by

long tradition or by government fiat” as “devoted to assembly

and debate.” Perry Educ. Ass’n, 460 U.S. at 45 (noting that

streets and parks are the quintessential examples of public

fora). The government may exclude speakers from a traditional public forum “only when the exclusion is necessary to

serve a compelling state interest and the exclusion is narrowly

drawn to achieve that interest.” Cornelius, 473 U.S. at 800;

see also Hague v. Comm. for Indus. Org., 307 U.S. 496, 515-

16 (1939) (Opinion of Roberts, J.) (“The privilege . . . to use

the streets and parks for communication of views on national

questions may be regulated in the interest of all; . . . but it

must not, in the guise of regulation, be abridged or denied.”).

In comparison, “designated public fora” are created where

the government has opened public property for expressive

activity. Perry Educ. Ass’n, 460 U.S. at 45. If the government

has opened the property to a class of speakers, rather than

offering selective access to individual speakers, the property

is a designated public forum with respect to all speakers

within that class. Ark. Educ. Television Comm’n, 523 U.S. at

678; Flint v. Dennison, 488 F.3d 816, 831 (9th Cir. 2007);

Widmar v. Vincent, 454 U.S. 263, 267 (1981) (state university

created designated public forum for registered student groups

by implementing policy that expressly made its meeting facilities “generally open” to such groups). The state may also

designate a public forum for discussion of certain subjects.

Perry Educ. Ass’n, 460 U.S. at 46 n.7, citing City of Madison

Joint Sch. Dist. v. Wis. Pub. Employment Relations Comm’n,

429 U.S. 167 (1976). In a designated public forum, contentbased prohibitions on speech, including the exclusion of particular speakers, “must be narrowly drawn to effectuate a

13538 POCATELLO EDUCATION ASS’N v. HEIDEMAN
compelling state interest.” Perry Educ. Ass’n, 460 U.S. at 46;

see Ark. Educ. Television Comm’n, 523 U.S. at 678; Cornelius, 473 U.S. at 802.6

 In other words, as long as the forum is

open, the state is bound by the same standards as apply to the

traditional public forum. Perry Educ. Ass’n, 460 U.S. at 46.

Finally, a nonpublic forum has been characterized as “[a]ny

public property that is not by tradition or designation a forum

for public communication.” Faith Ctr. Church Evangelistic

Ministries v. Glover, 480 F.3d 891, 907 (9th Cir. 2007). For

example, in International Society for Krishna Consciousness,

Inc. v. Lee, 505 U.S. 672 (1992) (“ISKCON”), the Court

declared airport terminals to be a nonpublic forum because,

although speech activity occurs in airport terminals, their tradition and purpose is to facilitate passenger air travel and

serve as a commercial enterprise, not to promote expression.

Id. at 679, 682-83. The government may limit access to “a

nonpublic forum to activities compatible with the intended

purpose of the property.” Perry Educ. Ass’n, 460 U.S. at 49.7

6On occasion, this circuit has referred to the “limited public forum” as

a subcategory of the designated public forum. See Flint, 488 F.3d at 830-

31; Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001). Other

decisions treat the terms interchangeably. See, e.g., Currier v. Potter, 379

F.3d 716, 728 n.8 (9th Cir. 2004) (citing, inter alia, Rosenberger v. Rector

& Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)). 

7Government property need not be any type of forum at all. For example, the Supreme Court has held that, as a general rule, most public television shows are not fora because broadcasters must retain considerable

programming discretion in order to fulfill their mandate of airing programming that serves the public interest. Ark. Educ. Television Comm’n, 523

U.S. at 673-75. In those instances, the First Amendment does not guarantee any right of access. See United States v. Am. Library Ass’n, Inc., 539

U.S. 194, 205 (2003) (noting that forum analysis is “incompatible” with

consideration of internet access in public libraries because library staff

must consider content in making decisions regarding the library collection,

including the library’s internet); Nat’l Endowment for the Arts v. Finley,

524 U.S. 569, 586 (1998) (declining to apply forum analysis because it

would conflict with the content-based nature of funding consideration). 

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13539
[4] A “forum” does not need to be a physical place. See

Rosenberger, 515 U.S. at 830 (endorsing use of forum analysis in considering fora defined “more in a metaphysical than

in a spatial or geographic sense”). For example, in Cornelius,

the Supreme Court held that a charity drive within federal

workplaces constituted a forum. 473 U.S. at 801. The Court

reasoned that the relevant forum should be determined on the

basis of the type of access sought by the speaker to the relevant property, and the NAACP did not claim any general right

of access to the federal workplace outside of the charity drive.

Id. at 801-02. Thus, the Court considered the relevant forum

to be the charity drive itself rather than the federal workplace.

Id.; see also Rosenberger, 515 U.S. at 830 (forum is the university’s student fund responsible for monetary reimbursements to student groups); Perry Educ. Ass’n, 460 U.S. at 46

(forum is the public school mail facilities and delivery system); Flint, 488 F.3d at 831 (forum is a student government

election); Child Evangelism Fellowship v. Anderson Sch. Dist.

Five, 470 F.3d 1062, 1069 (4th Cir. 2006) (forum is the

school’s policy of waiving fees for the after-hours use of

school facilities). 

[5] Following Cornelius, the relevant forum in this case

would be the payroll deduction programs of the local governments, as Plaintiffs seek access to this part of local government workplaces. Appellants assert that the payroll deduction

programs are nonpublic fora. The government may place

content-based limits on speech in a nonpublic forum, Perry

Educ. Ass’n, 460 U.S. at 49, “so long as the distinctions

drawn are reasonable in light of the purpose served by the

forum and are viewpoint neutral.” Cornelius, 473 U.S. at 806.

Appellants assert that § 44-2004(2) meets this test.8

Nevertheless, Plaintiffs argue strenuously that forum analy8

In Cornelius, a restriction similar to that at issue here passed muster as

a reasonable content-based restriction of speech in the context of a nonpublic forum. 473 U.S. at 811. 

13540 POCATELLO EDUCATION ASS’N v. HEIDEMAN
sis does not apply at all because neither the payroll deduction

programs nor the local workplaces are “property” of the State

of Idaho in any sense, and the State of Idaho therefore cannot

assert an interest in protecting the fora. To resolve this question, we consider first the required relationship between the

government entity seeking to impose a free speech restriction

and the forum in which it is imposed. We then examine the

relationship between the State of Idaho and the workplaces of

its local governments. 

B.

[6] In ISKCON, the Court explained the rationale for forum

analysis as follows: “Where the government is acting as a proprietor, managing its internal operations, rather than acting as

lawmaker with the power to regulate or license, its action will

not be subjected to the heightened review to which its actions

as a lawmaker may be subject.” 505 U.S. at 678. Thus, in

these situations, the role of the government has changed from

regulator to something akin to that of a private landowner,

with at least some of the associated exclusionary rights.9See

Greer v. Spock, 424 U.S. 828, 836 (1976) (“The State, no less

than a private owner of property, has power to preserve the

property under its control for the use to which it is lawfully

dedicated.”); Davis v. Massachusetts, 167 U.S. 43, 47 (1897)

(analogizing the government’s control over public property to

that of “the owner of a private house”). 

Forum analysis developed in battles over access to physical

spaces, such as streets, buses, and airports, where property

law provides a ready guide to the scope of the government’s

rights. Supreme Court precedent accordingly suggests that a

9Of course, if the government opens property it owns to the general

public for expression, its regulations of content are subject to strict scrutiny. Cornelius, 473 U.S. at 800. Thus, proprietorship alone is not enough

to exclude selectively; the proprietor must confine its property to narrow

uses. 

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13541
forum may be subject to government control where the government entity maintains a proprietary relationship over the

relevant property. For example, in ISKCON, the Court noted

specifically that the Port Authority of New York and New Jersey, the entity which had adopted the speech-restricting regulation, owned and operated the airport terminals which

constituted the property subject to the challenged regulation.

505 U.S. at 675; see also Ark. Educ. Television Comm’n, 523

U.S. at 669, 678 (state agency owned and operated the television station which held the political debate determined to be

a nonpublic forum); Kokinda, 497 U.S. at 723, 725 (federal

government acted in a proprietary capacity in restricting

access to postal service sidewalk owned by postal service);

Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974)

(content-based limits placed by city on access to municipal

transit system’s advertising space held to be “reasonable legislative objectives advanced by the city in a proprietary capacity”).10

By contrast, the mere possession of legal authority to regulate an entity, without more, represents an insufficient level of

control over that property to claim the forum in the name of

the State. In Consolidated Edison, the Supreme Court rejected

an attempt by the State of New York, acting through the New

York Public Service Commission, to regulate Consolidated

10As noted above, where a plaintiff seeks only selective access to the

property, such as a particular program administered on the property, then

the forum is the program rather than the property. See, e.g., Cornelius, 473

U.S. at 801. Nevertheless, in such cases, courts have continued to focus

on the proprietor of the property itself, evaluating the right of that party

to control access to the forum at issue. See, e.g., Currier, 379 F.3d at 729

(examining whether Postal Service “open[ed] up its property for use as a

public forum” even though the relevant forum was only the provision of

general delivery service); cf. Cornelius, 473 U.S. at 801-02 (noting that

the Court would not ignore the nature of the federal workplace itself even

though the forum was merely a type of access to that property). Here,

although the workplaces of the local governments constitute the larger

properties, the relevant fora are the payroll deduction programs to which

Plaintiffs seek access. 

13542 POCATELLO EDUCATION ASS’N v. HEIDEMAN
Edison’s monthly bill inserts. 447 U.S. at 532-33. The State

argued that it was entitled to treat the billing envelope as

“subject to the State’s plenary control” because of the State’s

regulatory interest in controlling operations of a public utility.

Id. at 540; see also id. at 534 n.1 (noting that Consolidated

Edison, although privately owned, was a governmentregulated monopoly). The Court held that the State’s legitimate regulatory interest in controlling Consolidated Edison’s

activities did not alter the nature of the property as private;

therefore, caselaw governing rights of access to governmental

property did not apply. Id. at 539-40 & n.8. 

C.

Reviewing the relationship between the State of Idaho and

the workplaces of local governments, we conclude that

Appellants have failed to establish that the State of Idaho is

the proprietor of the local workplaces or of local government

payroll systems. The State’s relationship with the local governments instead resembles that of a regulator who possesses

broad powers over them. 

Appellants’ evidence of control over local governments is

similar to that presented by the State of New York in Consolidated Edison. Appellants rely exclusively on the state legislature’s authority over Idaho’s political subdivisions, arguing

that the state’s power to regulate various aspects of local government necessarily gives it the right to control access to the

local governments’ payroll deduction programs. They point

out that the legislature may create, control, alter and abolish

local governments as it sees fit, subject only to the limits of

the Idaho Constitution, citing State ex rel. Hays v. Steunenberg, 45 P. 462, 463 (Idaho 1896). Appellants discuss the

doctrine of preemption of municipal law by State law, note

that local governments may levy taxes only to the extent they

are authorized to do so by the legislature, and note the limits

on the borrowing capabilities of counties, cities, and school

districts, citing Idaho Const. art. XII, § 6; id. art. XIII, § 4;

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13543
Brewster v. City of Pocatello, 768 P.2d 765, 766 (Idaho

1988); Caesar v. State, 610 P.2d 517 (Idaho 1980); Idaho

Water Res. Bd. v. Kramer, 548 P.2d 35 (Idaho 1976); State v.

Robbins, 81 P.2d 1078, 1080 (Idaho 1938)). 

Appellants note that school districts are supervised and

controlled by the State Board of Education, Idaho Code § 33-

116, which must approve the changing of school district

boundaries, the addition or subtraction of territory, and the

creation of new districts. Id. §§ 33-307, 33-308, 33-312.

Appellants also highlight Common School District No. 61 v.

Twin Falls Bank & Trust Co., 4 P.2d 342 (Idaho 1931), which

states that school districts are agencies of the state. Id. at 343;

but see Smith v. Meridian Joint Sch. Dist. No. 2, 918 P.2d

583, 591 (Idaho 1996) (calling this holding into doubt in light

of the subsequent passage of the Idaho Administrative Procedures Act, which specifically defines the term “agency”).

Finally, school districts can only exercise implied powers

consistent with those expressly granted by the legislature.

Olmstead v. Carter, 200 P. 134, 135-36 (Idaho 1921). 

[7] As illustrated by Consolidated Edison, however, the

generalized lawmaking power held by the legislature with

respect to a state’s political subdivisions does not establish

that the state is acting as a proprietor with respect to the property of local governments. In Consolidated Edison, the New

York legislature had granted the Public Service Commission

broad regulatory powers over Consolidated Edison. See Consol. Edison Co. v. Pub. Serv. Comm’n, 47 N.Y.2d 94, 102

(1979) (noting that the Public Service Commission was

granted “ ‘all powers necessary or proper to enable it to carry

out the purposes of’ the Public Service Law”) (quoting N.Y.

Pub. Serv. Law § 4(1)), rev’d, 447 U.S. 530 (1980). The

Court nevertheless found this broad grant of authority insufficient to render Consolidated Edison’s billing envelopes a

forum of the Public Service Commission. Here, nothing in the

Idaho Code suggests that Idaho is the proprietor of the local

government workplaces or their payroll deduction programs.

13544 POCATELLO EDUCATION ASS’N v. HEIDEMAN
The statutes instead suggest the opposite — that the State has

granted units of local government the right to own and control

their own property, independent of the State’s control. 

Many units of local government in Idaho are expressly

declared to be independent corporate bodies, suggesting independent powers of management and governance as compared

with state agencies, which lack a similarly corporate status.

See, e.g., Idaho Code §§ 27-115 (cemetery maintenance districts), 31-601 (counties), 31-4204 (housing authorities), 31-

4317 (recreation districts), 31-4903 (waste disposal districts),

33-301 (school districts), 33-2714 (library districts), 40-1301

(highway districts), 50-301 (cities); cf. id. §§ 20-201 (declaring State Board of Corrections to be an agency of the State),

33-101 (State Board of Education belongs to the executive

department of state government), 36-101 (classifying Department of Fish and Game as a branch of the executive department of state government). 

Caselaw has also recognized that local governments are

distinct entities from the State of Idaho. Cf. Idaho Sch. for

Equal Educ. Opportunity v. State, 97 P.3d 453, 457-58 (Idaho

2004) (affirming school districts’ right to sue the State despite

a statute purporting to limit this right); Smith, 918 P.2d at

590-91 (holding that school districts and their boards of trustees are separate entities from the state); Union Pac. R.R. v.

Idaho, 654 F. Supp. 1236, 1241 (D. Idaho 1987) (denying

Eleventh Amendment immunity to county officials and holding that counties are independent political subdivisions of the

state).11

11We note that the line of reasoning Appellants assert in this case has

also been considered and rejected with respect to the question of local

governments’ entitlement to Eleventh Amendment immunity. Various

local governments, arguing that they are creatures of their respective

states, have attempted to assert immunity from suit, but it is wellestablished that local governments are not considered arms of the state for

such purposes. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 280-81 (1977); Workman v. City of New York, 179 U.S.

552, 563-66 (1900); Lincoln County v. Luning, 133 U.S. 529 (1890); see

also Regents of the Univ. v. Doe, 519 U.S. 425, 429-31 (1997). 

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13545
Of particular importance to forum analysis, the legislature

has granted many local governmental units various powers to

acquire, hold, and convey real and personal property. See,

e.g., Idaho Code §§ 27-118 (cemetery maintenance districts),

31-604 (counties), 31-1419 (fire protection districts), 31-4114

(television translator districts), 31-4204 (housing authorities),

31-4317 (recreation districts), 33-301 (school districts), 50-

301 (cities). These rights of ownership are clearly independent of the State itself, as other portions of the Code discuss

the ability of the local government units to grant property to

the State or to other political subdivisions of the State. See,

e.g., Idaho Code §§ 31-1420(7). For example, school districts

have the same property transfer rights vis-à-vis the State as

they have vis-à-vis other government entities. Id. § 33-

601(4)(b). Appellants presented no evidence that local workplaces are treated differently than other types of property

owned by local government. 

[8] In sum, the State’s broad powers of control over local

government entities are solely those of a regulator, analogous

to the New York Public Service Commission’s regulatory

powers over Consolidated Edison. Local governments are

independent corporations and many are explicitly granted the

right to own and control their own property. Lacking any evidence of the State’s proprietary relationship with the local

government workplace, Appellants’ assertion that the payroll

deduction programs of local governments are nonpublic fora

belonging to the State must fail. 

D.

When pressed at oral argument, Appellants conceded that

the State of Idaho is not the proprietor of local government

workplaces or their payroll deduction programs. Nevertheless,

Appellants suggest that Consolidated Edison, involving use of

private property, is fundamentally different from the situation

presented here, and that Plaintiffs’ focus on property ownership and control is inapposite. They emphasize that, unlike

13546 POCATELLO EDUCATION ASS’N v. HEIDEMAN
private corporations such as Consolidated Edison, local governments are exclusively creatures of the State’s creation;

therefore, the instrumentalities of local governments are necessarily the instrumentalities of the State of Idaho, regardless

of who “owns” them. 

We do recognize that the forum doctrine’s stated roots in

property rights has been subject to some criticism. See, e.g.,

Kokinda, 497 U.S. at 747 n.4 (Brennan, J., dissenting); Timothy Zick, Speech and Spatial Tactics, 84 Tex. L. Rev. 581

(2006) (arguing that First Amendment rights should depend

on the “place” of speech rather than the form of property);

Robert C. Post, Between Governance and Management: The

History and Theory of the Public Forum, 34 UCLA L. Rev.

1713, 1777 (1987) (“The Court’s present focus ‘on the character of the property at issue’ is a theoretical dead end,

because there is no satisfactory theory connecting the classification of government property with the exercise of first

amendment rights.”) (quoting Perry Educ. Ass’n, 460 U.S. at

44). There is some support in the caselaw for an alternative

theory of forum analysis which evaluates the forum in light of

the degree of control exercised by the government entity.

Under this approach, the question is not one of ownership or

proprietorship but whether the government has exercised a

sufficient degree of control over the forum such that it should

be granted the right to make speech-restrictive rules in the

forum. 

In United States Postal Service v. Council of Greenburgh

Civic Ass’ns, 453 U.S. 114 (1981), for example, the Court

applied forum analysis to privately-owned mailboxes. Id. at

123, 128. Clearly, no proprietary relationship exists between

the government and private mailboxes. Nevertheless, the

Court compared the government’s rights with respect to the

mailboxes to those of a private owner and declared that the

State had the ability to preserve “property under its control.”

Id. at 130. Cited laws controlling the use of mailboxes

included a federal regulation designating the boxes as “authoPOCATELLO EDUCATION ASS’N v. HEIDEMAN 13547
rized depositor[ies]” of mail and federal criminal laws affording such boxes protection against damage and the destruction

of the mail contained therein. Id. at 123. Indeed, the boxes

only became “mailboxes” because of the government’s daily

use of the boxes for that purpose; in that sense, their essential

character was completely controlled by the government. See

also Perry, 460 U.S. at 46 (citing Greenburgh, 453 U.S. at

129, for the proposition that property owned or controlled by

the government calls for forum analysis); United Church of

Christ v. Gateway Econ. Div. Corp. of Greater Cleveland,

Inc., 383 F.3d 449, 454 (6th Cir. 2002) (recognizing that

whether a privately-owned sports Complex could be treated as

public property for purposes of forum analysis “turned on the

amount of control exercised over . . . the Complex by the

state”); Perez v. Hoblock, 368 F.3d 166, 169 n.2, 173 (2d Cir.

2004) (finding a private office in a privately-owned racetrack

to be a nonpublic forum where New York regulations extensively controlled the sport of horse racing as well as the

track’s owner); Texas v. Knights of the Ku Klux Klan, 58 F.3d

1075, 1078-79 (5th Cir. 1995) (defining the adopt-a-highway

program as a nonpublic forum of the State of Texas, citing the

State’s detailed management of the program’s administration). 

Under such circumstances, one can argue that the state has

a sufficient managerial interest in the resource to justify judicial deference to its rules. See Post, supra, 34 UCLA L. Rev.

at 1775 (suggesting that the state is subject to greater First

Amendment restraints when it acts to govern the general public than when it acts in a “managerial” capacity toward its

own institutions); see, e.g., Cornelius, 473 U.S. at 805 (running of charity drive involves the government’s “discretion

and control over the management of its personnel and internal

affairs”) (internal quotation marks and citation omitted);

Greer, 424 U.S. at 836-40 (granting deference to commanding officer to control access to public areas of military base

when candidates sought access in order to meet with military

personnel). Deference is appropriate where the government

13548 POCATELLO EDUCATION ASS’N v. HEIDEMAN
needs to organize itself in an institutional manner. See Greenburgh, 453 U.S. at 126, 128 (noting that mailboxes must be

“under the direction and control of the Postal Service” in

order to ensure its efficient operation and that they are “an

essential part of the Postal Service’s nationwide system for

the delivery and receipt of mail”). The regular exercise of

control over the administrative activities of a particular entity

demonstrates that the government is indeed the manager of

that entity. Such pervasive management also lessens the likelihood that a decision made in the course of managing an

entity, which results in the exclusion of expressive activity,

had as its purpose the suppression of expression.12 See Davenport, 127 S. Ct. at 2381-82 (noting situations involving

content-based restrictions of speech that are subject to relaxed

scrutiny because they raise no realistic concern over the suppression of ideas). 

But even if we were to approach forum analysis from the

vantage point Appellants urge, it would not alter our conclusion. It is clear that the State of Idaho does not pervasively

manage local government workplaces or local government the

payroll deduction programs. Appellants cannot point to any

current or previous exercise of control over local governments’ administration of their payroll systems, except for the

subject statute, § 44-2004(2). Appellants could cite no other

situation in which Idaho has attempted to use its asserted

powers to manage the day-to-day operations of local government personnel. The unique nature of the State’s intervention

therefore strongly suggests that the State’s purpose here is

exactly that against which the First Amendment protects —

the denial of payroll deductions for the purpose of stifling

political speech. Cf. R.A.V., 505 U.S. at 390. Appellants have

failed to establish that local governments’ payroll deduction

12We emphasize, however, that this line of cases depends on pervasive

management. Mere governmental regulation of the property of others is

not enough to permit the government to control expressive content, as

Consolidated Edison shows, 447 U.S. at 539-40. 

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13549
programs involve Idaho’s discretion and control over the

management of its own internal affairs, see Cornelius, 473

U.S. at 805, such that the programs should be considered a

nonpublic forum of the State. 

[9] Much of First Amendment analysis balances interests;

forum analysis attempts to balance the interests of the government in controlling access to its property with the speech

interests of the parties who wish to gain access to the property. See Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482

U.S. 569, 572 (1987); see Hill v. Colorado, 530 U.S. 703, 718

(2000); Kokinda, 497 U.S. at 737 (Kennedy, J., concurring);

Cornelius, 473 U.S. at 800. In this case, Appellants have

established generally that the State of Idaho has the ultimate

power of control over the units of government at issue but

have not established that the State actually operates or controls the payroll deduction systems of local units of government. This suggests that the State of Idaho did not establish

the forum and does not currently operate the forum. Consequently, the State has a relatively weak interest in preventing

Plaintiffs from exercising their First Amendment rights as

compared to the actual controlling entities.13

13The balancing process associated with forum analysis, a heavily factual inquiry, illustrates the logic of our conclusion. The classification of

payroll deduction programs as a particular type of forum, and the attendant

First Amendment rights of Plaintiffs with respect to the payroll deduction

programs, depend heavily upon the nature of the government’s interests in

operating the payroll deduction system (as evidenced by stated intent, policy, and practice) and whether the local government workplaces are compatible with the type of expressive activity embodied by politicallyoriented payroll deductions. See Cornelius, 473 U.S. at 802; cf. Perry, 460

U.S. at 47 (looking to facts regarding school district’s practice in operating

its mail system to determine what type of forum existed); Stewart v. D.C.

Armory Bd., 863 F.2d 1013, 1016-21 (D.C. Cir. 1988) (reversing dismissal

of complaint and directing district court to examine “objective indicia” of

government’s intent in operating football stadium). Nowhere has the State

shown that it is in a position to provide this information with respect to

local government workplaces. Nonpublic forum analysis simply cannot

occur here. 

13550 POCATELLO EDUCATION ASS’N v. HEIDEMAN
[10] We therefore conclude that Appellants’ assertion that

local government payroll deduction systems are nonpublic

fora of the State of Idaho is unsupported by law or facts. The

public forum doctrine does not apply to Idaho’s decision to

prevent local government employers from granting an

employee’s request to make voluntary contributions to political activities through a payroll deduction program. Accordingly, we apply the strict scrutiny analysis described above,

and because § 44-2004(2) fails strict scrutiny, we hold the

statute unconstitutional as applied to local government

employers. The district court’s grant of summary judgment in

favor of Plaintiffs that Idaho Code § 44-2004(2) is unconstitutional with respect to local units of government, including

school districts, is 

AFFIRMED. 

POCATELLO EDUCATION ASS’N v. HEIDEMAN 13551