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Conduct on Postal Service Property — Update on Prohibitions on Signature Solicitation

In the article "Conduct on Postal Service Property — Prohibitions on Signature Solicitation" in Postal Bulletin 22119 (1-8-04, page 19), we informed Postal ServiceTM managers of the favorable decision in Initiative and Referendum Institute v. United States Postal Service, in which the District Court for the District of Columbia upheld the Conduct on Postal Property (COPP) regulations ban against soliciting signatures on Postal Service property. The plaintiffs filed an appeal in the Court of Appeals for the DC Circuit and an opinion was issued on August 9, 2005. The Court of Appeals vacated the earlier decision and remanded the case back to the District Court. The case is now being relitigated in the District Court. In its opinion, the appellate court strongly suggested that the Postal Service amend its regulations to clarify certain points. The court did not issue an injunction against the Postal Service or otherwise mandate suspension of the prohibition. As such, the prohibition against soliciting signatures on Postal Service property is still valid and must be enforced. Based on the appellate opinion, on December 1, 2005, the Postal Service published amendments to the regulations in the Federal Register, 70 FR 72078. These amendments are explained in detail below.

The earlier Postal Bulletin article clarified two matters. First, it pointed out that the prohibition against soliciting signatures extends only to efforts to have members of the public provide signatures on Postal Service premises, and not to communications that promote the signing of petitions, polls, and surveys somewhere other than on Postal Service premises. In the recent amendments, the Postal Service further clarified this by changing the phrase "soliciting signatures" to "collecting signatures."

In the earlier article, the Law Department also advised Postal Service managers that the regulations did not apply to municipal or other perimeter sidewalks, even if the Postal Service's property line extends onto such a sidewalk, or even if there is some obligation on the part of the Postal Service to maintain the city sidewalk, such as by removing snow. This advice was based on a Supreme Court decision, United States v. Grace. In that case the Court determined that the federal regulations at issue, similar to the Postal Service's Conduct on Postal Property (COPP) regulations, could not be enforced, even though the sidewalks surrounding the Supreme Court Building, hereinafter known as "Grace sidewalks," were owned by the federal government. This was because members of the public could not distinguish them from other municipal or public sidewalks in Washington, DC. As such, members of the public would not be able to tell that they had entered a "federal enclave" where special rules applied, potentially chilling free speech activities.

The appellate court in the Initiative and Referendum Institute (IRI) case had similar concerns about the Postal Service's COPP regulations, suggesting that even though the Postal Service had made it clear to postal managers that the rules did not apply to Grace sidewalks, members of the public, just as in the Grace case, had not been notified and would not be able to tell where the COPP regulations applied and where they did not. Therefore, the regulations have been amended to reflect the Postal Service's established non-enforcement policy.

Note that in the earlier Postal Bulletin article, the Law Department advised that none of the COPP regulations applied to Grace sidewalks that are indistinguishable from adjacent municipal or other public sidewalks. The recent amendments clarify that this enforcement exception for Grace sidewalks applies only to sections 39 Code of Federal Regulations (CFR) 232.1(h); Postal Operations Manual (POM) 124.54 and 39 CFR 232.1(o); POM 124.55. These are the provisions involving expressive, or free speech, activities. This includes newspaper vending machines, which may be placed on Grace sidewalks, provided they do not violate other provisions of the regulations, such as impeding ingress and egress from Post OfficeTM facilities. The rest of the conduct regulations may be enforced on Grace sidewalks, such as the prohibitions against causing disturbances (39 CFR 232.1(e); POM 124.51); blocking entrances, driveways, loading platforms, or fire hydrants (39 CFR 232.1(k)(4); POM 124.42.d); or gambling (39 CFR 232.1(f); POM 124.52.)

The amended regulations are now in full force and effect and the amended language is found below.

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Section 232.1(a) was amended as follows:

(a) Applicability. This section applies to all real property under the charge and control of the Postal Service, to all tenant agencies, and to all persons entering in or on such property. This section shall be posted and kept posted at a conspicuous place on all such property. This section shall not apply to-

(i) Any portions of real property, owned or leased by the Postal Service, that are leased or subleased by the Postal Service to private tenants for their exclusive use;

(ii) With respect to sections 232.1(h)(1) and 232.1(o), sidewalks along the street frontage of postal property falling within the property lines of the Postal Service that are not physically distinguishable from adjacent municipal or other public sidewalks, and any paved areas adjacent to such sidewalks that are not physically distinguishable from such sidewalks.

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Sec. 232.1(e), added the phrase ``impedes ingress to or egress from post offices, or otherwise'' before the term ``obstructs.''

Section 232.1(h)(1), the words ``soliciting signatures'' were removed and the words ``collecting signatures'' were added in their place. The phrase ``and impeding ingress to or egress from post offices'' was deleted from this section and placed in section 232.1(e), as indicated above.

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The Law Department will be working with Retail to revise POM part 124 and Poster 7, Rules and Regulations Governing Conduct on Postal Property, to comply with these amendments. In the meantime, managers may wish to keep a copy of this article on hand to be distributed to members of the public who may not yet be aware of the regulatory amendments and who may wish to engage in signature gathering activities on postal property.

— General Law Service Center, General Counsel and Customer Service Operations, Operations, 2-16-06

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