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