Harlan L. Jacobsen v. United States Postal Service

993 F.2d 649 Harlan L. JACOBSEN, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee. No. 89-16054. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 10, 1992. Decided July 7, 1992. As Amended April 30, 1993. Harlan L. Jacobsen, pro se. Michael R. Arkfeld, Asst. U.S. Atty., Phoenix, AZ, for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before: WISDOM, * BEEZER and TROTT, Circuit Judges. TROTT, Circuit Judge: 1 Harlan Jacobsen placed newsracks containing his newspapers Single Scene or Solo RFD at three locations outside federal buildings housing United States Post Offices. He won a preliminary injunction in the Ninth Circuit against governmental removal of his newsracks located on perimeter sidewalks, which are public fora. The Court of Appeals, however, remanded to the district court the question of whether ingress-egress walkways were public fora. The district court, on remand, issued the injunction as ordered, but found the newsracks were, in fact, located on ingress-egress walks, which it held to be nonpublic fora. The removal of those racks was found not to violate the scope of…

Harlan Jacobsen placed newsracks containing his newspapers Single Scene or Solo RFD at three locations outside federal buildings housing United States Post Offices. He won a preliminary injunction in the Ninth Circuit against governmental removal of his newsracks located on perimeter sidewalks, which are public fora. The Court of Appeals, howéver, remanded to the district court the question of whether ingress-egress walkways were public fora. The district court, on remand, issued the injunction as ordered, but found the newsracks were, in fact, located on ingress-egress walks, which it held to be nonpublic fora. The removal of those racks was found not to violate the scope of injunction contemplated by the Court of Appeals. The district court also found the Randolph-Sheppard Act, which requires a percentage of receipts of vendors on federal property be given to the blind, did not violate the First Amendment. We affirm.

I

Harlan Jacobsen publishes singles newspapers in Arizona. The events surrounding this appeal have to do with Jacobsen’s placement of newspaper vending machines at United States Post Offices at three locations.

In Lincoln, Nebraska, Jacobsen placed his rack on…

concurring in part and dissenting in part:

I concur in the result reached by the majority with respect to the Lincoln, Nebraska and Aberdeen, South Dakota locations. I respectfully dissent, however, from the result reached by the majority with respect to the Fargo, North Dakota location.

The majority reads Monterey County Democratic Cent. Comm. v. United States Postal Service 1 and the plurality opinion in United States v. Kokinda 2 as holding that no federally owned ingress-egress sidewalk is a public forum. See op. at 654-66. I suggest that this reading of those cases is overly broad. Both of those cases held that a federally owned walkway that is not a public thoroughfare and that is separated from the public sidewalk by a parking lot is not necessarily a public forum. Thus, there are two questions to ask: (1) is the walkway in question a public thoroughfare and (2) is the walkway physically indistinguishable from the public sidewalk. Because sidewalks are traditionally considered public fora, 3 this Court should hold that a sidewalk is not a public forum only if these questions are answered in the negative.

In both Lincoln, Nebraska and Aberdeen, South Dakota these…