In Initiative and Referendum Institute, individuals and organizations attempting to collect signatures for petitions on sidewalks and other exterior areas of post offices challenged a USPS regulation banning the solicitation of signatures on petitions, polls, or surveys on USPS property. The court concluded that the regulation was unconstitutional when applied to a public forum. Although the Postal Service’s interest in minimizing disruption of postal business and unimpeded ingress and egress was content-neutral, the regulation was not narrowly tailored. The problems associated with solicitors arose only “occasionally,” meaning an across-the-board ban resulted in significant over-inclusiveness. Moreover, the Postal Service could achieve its aims through other means, such as bans on disturbing patrons and employees and bans on impeding entry. While such means may not stop patrons from being irritated, shutting off discourse solely to protect others from hearing it is dependent upon a showing that substantially privacy interests are invaded in an essentially intolerable manner—an element not met here. Further, the regulation did not leave open ample alternative channels of communication—it was not enough that the appellants could solicit signatures at other locations; one’s right to speech in an appropriate place cannot be abridged on account of the fact it can be exercised elsewhere. Finally, the fact that the Postal Service allowed other forms of communication, like leafleting and talking about an issue, did not save the signature solicitation ban; exacting scrutiny is applied to an absolute prohibition on a particular type of expression.
Because the regulation was unconstitutional when applied to a public forum, it would be facially invalid if a substantial number of post office sidewalks constituted public forums (which depended on the type of sidewalk), a fact issue that was remanded. But the court pointed out another facial flaw—it appeared to bar pure solicitation, i.e., asking patrons to sign petitions, even if the signatures themselves are collected off postal premises. Such a prohibition would be unconstitutional even if all postal properties were nonpublic forums. The court concluded that a limiting construction of the regulation allowing for such pure solicitation would cure the problem, at least with respect to exterior postal properties that did not constitute public forums.