DONALD J. DEVINE, DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT, PETITIONER V. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., ET AL. No. 84-312 In the Supreme Court of the United States October Term, 1984 The Solicitor General, on behalf of the Director of the Office of Personnel Management, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the District Of Columbia Circuit PARTIES TO THE PROCEEDING In addition to the parties named in the caption, the Sierra Club Legal Defense Fund, Inc.; the Puerto Rican Legal Defense and Education Fund, Inc.; the Federally Employed Women Legal and Education Fund, Inc.; the Indian Law Resource Center; the Lawyers' Committee for Civil Rights Under Law; and the Natural Resources Defense Council, Inc. are respondents. TABLE OF CONTENTS Opinions below Jurisdiction Executive Order involved Statement 1. Background of the Combined Federal Campaign 2. Structure and operation of the Campaign under Executive Order No. 12,404 3. Proceedings in this case Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-76a) is reported at 727 F.2d 1247. The opinion of the district court (App., infra, 84a-97a) is reported at 567 F. Supp. 401. JURISDICTION The judgment of the court of appeals (App., infra, 77a-78a) was entered on February 17, 1984. A petition for rehearing was denied on April 30, 1984 (App., infra, 79a-83a). On July 18, 1984, Justice White extended the time within which to file a petition for a writ of certiorari to and including August 28, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). EXECUTIVE ORDER INVOLVED Exec. Order No. 12,404, 3 C.F.R. 151, provides in pertinent part: By the authority vested in me as President * * * and in order to lessen the burdens of government and of local communities in meeting needs of human health and welfare, it is hereby ordered as follows: Section 1. Executive Order No. 12353 of March 23, 1982, is amended as follows: (a) By deleting Section 1 of that Order and inserting in its place the following provision: "Section 1. The Director of the Office of Personnel Management shall make arrangements for voluntary health and welfare agencies to solicit contributions from Federal employees and members of the uniformed services at their places of employment or duty. These arrangements shall take the form of an annual Combined Federal Campaign in which eligible voluntary agencies are authorized to take part." (b) In Section 2 insert "(a)" after the Section number and add the following new subsection after the existing provision: "(b) In establishing those criteria (for determining the eligibility of voluntary agencies that may participate in each of the annual Combined Federal Campaigns), the Director shall be guided by the following principles and policies: "(1) The objectives of the Combined Federal Campaign are to lessen the burdens of government and of local communities in meeting needs of human health and welfare; to provide a convenient channel through which Federal public servants may contribute to these efforts; to minimize or eliminate disruption of the Federal workplace and costs to Federal taxpayers that such fund-raising may entail; and to avoid the reality and appearance of the use of Federal resources in aid of fund-raising for political activity or advocacy of public policy, lobbying, or philanthropy of any kind that does not directly serve needs of human health and welfare. "(2) To meet these objectives, eligibility for participation in the Combined Federal Campaign shall be limited to voluntary, charitable, health and welfare agencies that provide or support direct health and welfare services to individuals or their families. * * * Such services must directly benefit human beings * * *. Such services must consist of care, research or education in the fields of human health or social adjustment and rehabilitation; relief of victims of natural disasters and other emergencies; or assistance to those who are impoverished and therefore in need of food, shelter, clothing, education, and basic human welfare services. "(3) Agencies that seek to influence the outcomes of elections or the determination of public policy through political activity or advocacy, lobbying, or litigation on behalf of parties other than themselves shall not be deemed charitable health and welfare agencies and shall not be eligible to participate in the Combined Federal Campaign. QUESTION PRESENTED Whether Executive Order No. 12,404, which limits participation in the Combined Federal Campaign to traditional health and welfare charities and thus excludes legal advocacy groups, violates the First Amendment. STATEMENT 1. Background of the Combined Federal Campaign Prior to 1957, there were no government-wide rules governing solitation by charitable organizations in the federal workplace. In some federal facilities managers did not permit any solicitation; in others, there were no restrictions, and solicitations occurred so frequently that they disrupted the workplace. App., infra, 3a. Federal officials in some facilities "were beseiged by dozens of agencies seeking endorsements and the privilege of soliciting employees on the job." U.S. Civil Service Comm'n., Manual on Fund-Raising Within the Federal Service for Voluntary Health and Welfare Organizations Section 1.1 (1977). /1/ In 1957, President Eisenhower promulgated procedures for a program of charitable solicitation in the federal workplace and established in the President's Committee on Fund-Raising Within the Federal Service to review and modify the fund-raising program. Exec. Order No. 10,728, 3 C.F.R. 387 (1957). In 1961, President Kennedy abolished the Committee and directed the Chairman of the Civil Service Commission to "make arrangements for such national voluntary health and welfare agencies and such other national voluntary agencies as may be appropriate to solicit funds from Federal employees and members of the armed forces at their places of employment or duty stations." /2/ Exec. Order No. 10,927, Section 2(a), 3 C.F.R. 454 (1961). The program developed in response to this directive came to be known as the Combined Federal Campaign. For the next 20 years, the provision for Campaign participation by "national voluntary health and welfare agencies and such other(s) *** as may be appropriate" was understood by all concerned to limit participation to those charities that engaged in medical research or that provided traditional health and welfare services to needy people. C.A. App. 385-386. /3/ This understanding was codified in the Manual on Fund-Raising Within the Federal Service, supra, Section 5.21, which provided that participation in the Campaign was confined to charitable organizations "providing direct services to persons in the fields of health and welfare services" (emphasis supplied). In 1980, several legal advocacy groups ("legal defense funds") /4/ that had been denied the opportunity to participate in the Campaign challenged the "direct services" requirement. In NAACP Legal Defense and Educational Fund, Inc. v. Campbell, 504 F. Supp. 1365 (D.D.C. 1981), the court held that the "direct services" requirement was unconstitutionally vague and could not be used as a basis for excluding organizations from participation in the Campaign. Following the ruling in Campbell, the Office of Personnel Management concluded that it was obliged to allow a variety of groups, including respondents, to participate in the Campaign, at least until more precise guidelines for participation could be developed. /5/ This change in the traditional scope of the Campaign brought a number of complaints that the Campaign was being politicized, as well as open resistance to the Campaign in some quarters. For example, in 1982 a number of federal employee unions threatened to boycott the Campaign; in some cases those threats were carried out. App., infra, 7a-10a, 63a-66a. /6/ 2. Structure and Operation of the Campaign Under Executive Order No. 12,404 /7/ In February 1983, President Reagan issued Exec. Order No. 12,404, 3 C.F.R. 151. /8/ The new executive order represented an attempt to cure the vagueness condemned by the district court in NAACP Legal Defense and Educational Fund, Inc. v. Campbell, supra, and to return the Campaign to its original scope. Section 1(b) of Exec. Order No. 12,404 specifies that the Campaign is to be conducted for the benefit only of those organizations dedicated to providing: (1) care, research or education in the fields of human health or social adjustment and rehabilitation; (2) relief of victims of natural disasters and other emergencies; or (3) assistance to those who are impoverished and therefore in need of food, shelter, clothing, education, and basic human welfare services. Organizations that do not provide or support such services, including those "that seek to influence the outcomes of elections or the determination of public policy through political activity or advocacy, lobbying, or litigation on behalf of parties other than themselves," are not eligible to receive contributions through the Campaign. The executive order explains that the purposes of the Campaign, and the rationale for the eligibility criteria, are to: (1) lessen the burdens of the federal government and local communities in supplying health and welfare services; (2) minimize disruption to the federal workplace and costs of fund-raising; and (3) avoid the fact and appearance of governmental support for organizations that advocate partisan political viewpoints and causes. Exec. Order No. 12,404, Section 1(b). The government annually solicits more than $100 million in contributions from civilian and military employees through the Campaign. The Campaign is conducted by volunteer federal employees, in the federal workplace, on government time, and at government expense. 5 C.F.R. 950.103(d) and (e). All supervisory and oversight personnel for the Campaign are federal officials. 5 C.F.R. 950.103(c) and (d), 950.201 et seq. The Director of the Office of Personnel Management or his delegate makes all policy, procedural, and eligibility decisions for the Campaign. Exec. Order No. 12,353; 5 C.F.R. 950.201(a). The charities that receive contributions through the Campaign are barred by regulation from themselves engaging in any on-the-job solicitation of federal employees. See 5 C.F.R. 950.507(a). Federal employees distribute to their colleagues pledge cards and copies of a contributor's leaflet, which contains a list of participating charities and brief, 30-word statements about the nature of each charity's program. 5 C.F.R. 950.521. These materials are "developed in the local area under direction of the local Federal (officials conducting the Campaign)" and cannot be used without the approval of those officials. 5 C.F.R. 0.521(a). Federal employees may donate lump sums or may request that specified amounts be withheld from their salaries under a government payroll deduction plan. Employees may designate one or more of the organizations listed in the contributor's leaflet to receive their contributions. Undesignated contributions are paid to a private umbrella organization that takes responsibility for distributing those funds to other organizations participating in the Campaign. 5 C.F.R. 950.509(e) and (g), 950.513, 950.519(d), 950.523. See App., infra, 88a. /9/ Only designated contributions are at issue in this case at this stage of the proceedings. 3. Proceedings in this Case a. Following the issuance of Exec. Order No. 12,404, respondents, seven legal defense funds, brought this action in the United States District Court for the District of Columbia. Respondents contended that their First and Fifth Amendment rights would be violated if participation in the Campaign were limited to traditional health and welfare charities in accordance with Exec. Order No. 12,404. The district court permanently enjoined the government from excluding respondents from eligibility to receive designated contributions through the Campaign (App., infra, 84a-99a). Applying Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983), the court held that, "to the extent that it permits numerous charitable organizations to present their messages to federal employees," the Campaign constitutes a "limited public forum" subject to First Amendment constraints (App., infra, 90a). The court characterized the restrictions on participation in the Campaign as a content-based prohibition (id. at 91a) and concluded that the reasons set forth in Exec. Order No. 12,404 for those restrictions were insufficient to justify exclusion of respondents from eligibility to receive designated contributions through the Campaign (App., infra, 92a-94a). /10/ b. A divided panel of the court of appeals affirmed (App., infra, 1a-76a). Judge Edwards, writing for the majority, found it unnecessary to decide whether the Campaign constituted a "limited public forum" or a "nonpublic forum" under Perry Education Assn. because the court concluded that exclusion of respondents did not satisfy even the reasonableness standard applicable to measures restricting speech in nonpublic forums (App., infra, 16a-20a). /11/ The court asserted that it was necessary to examine carefully the government's justification for restricting participation in the Campaign because, in the court's view, there was no difference in "status" between the excluded organizations and those that participate in the Campaign. In support of this conclusion, the court noted, inter alia, that respondents qualified as charitable organizations under the Internal Revenue Code. Id. at 20a-24a. The court of appeals rejected the government's explanation that limitation of participation in the Campaign to traditional health and welfare charities would decrease the burden on the government to provide such services (App., infra, 24a-25a). The court found it significant that groups like the United States Olympic Committee had been allowed to participate in the Campaign; and it noted that the litigation efforts of one respondent had resulted in benefits to needy people (ibid.). The court of appeals also rejected the government's explanation that advocacy, litigation, and lobbying groups were excluded from the Campaign in order to avoid the appearance of government support for partisan causes (App., infra, 25a-27a). The court observed that legal defense funds were not considered to be political action groups for purposes of the Internal Revenue Code (App., infra, 25a-26a). The court expressed doubt that legal defense funds could constitutionally be excluded on the ground that their controversial nature might result in disruption of the workplace and pose a danger to the fund-raising purposes of the Campaign (id. at 28a-31a). In addition, the court found no "tangible evidence in the record suggesting that some real and serious disruptions of the workplace will likely occur" (id. at 32a). Finally, the court of appeals rejected the government's suggestion that without eligibility limitations the government would be inundated with philanthropic organizations seeking to participate in the Campaign (App., infra, 35a-36a). The court further concluded that the availability to respondents of alternative means of communication with federal employees was essentially irrelevant to analysis of the reasonableness of the Campaign limitations (id. at 36a-37a). The court ended by criticizing the dissenting opinion for, inter alia, applying a "rational basis test," rather than a reasonableness test (id. at 38a-39a). Judge Starr dissented (App., infra, 43a-76a). In his view, because this case involved a nonpublic forum, the majority had employed "a stringent standard of review under the guise of a 'reasonableness test' that comports not at all with the deferential standard demanded by Supreme Court precedent" (id. at 44a). Judge Starr noted that there was ample record evidence that inclusion of the legal advocacy groups had caused losses during the 1983 Campaign and had threatened the future success of the Campaign (id. at 62a-66a). He stated that the limitations on Campaign participation articulated in Exec. Order No. 12,404 constituted a reasonable means of minimizing disruption in the federal workplace and avoiding the appearance of governmental favoritism toward advocacy groups (id. at 66a-70a). Accordingly, Judge Starr concluded that limitation of participation in the Campaign to traditional health and welfare charities was constitutional because it was both reasonable and view-point-neutral. c. The court of appeals denied the government's suggestion for rehearing en banc by a vote of four to four (App., infra, 80a-83a). /12/ Judge Starr, joined by Judges Wilkey, Bork, and Scalia, filed a dissenting statement. The dissenters noted that the panel's invocation of tax exempt status as the linchpin of its analysis would make it "difficult, if not impossible, for the federal government to exclude on a principled basis any of the hundreds of thousands of organizations across the country that enjoy (such status" (App., infra, 82a). They concluded that en banc consideration was warranted "because of the enormous potential impact of this case on the (Campaign); because of its critical misinterpretation of important First Amendment doctrine; and because of its misapplication of the standard for affirming the grant of summary judgment on appeal" (id. at 82a-83a). REASONS FOR GRANTING THE PETITION Through six different Administrations, beginning in 1961 with the Kennedy Administration, the federal government (like many private employers that sponsor charitable drives in the workplace) has limited participation in the Combined Federal Campaign to traditional health and welfare charities. In this case, however, the court of appeals ruled on First Amendment grounds that the President may not impose such a limitation. The four judges who voted in favor of en banc consideration correctly noted that the court of appeals' holding rests on a "critical misinterpretation of important First Amendment doctrine" (App., infra, 83a). Moreover, the decision below creates serious practical problems for administration of the Campaign and fundamentally alters the nature of this major federal activity. The court of appeals' application of a stringent standard of review of restrictions on access to nonpublic forums is likely to cause difficulties for the government in other contexts as well. Review by this Court is plainly warranted. 1. The court of appeals' holding that the President may not limit the scope of the Campaign in a way that excludes legal advocacy groups from receipt of designated contributions rests on a serious misreading of this Court's First Amendment precedents. Indeed, as Judges Starr, Wilkey, Bork, and Scalia noted (App., infra, 82a), the decision below amounts to an unprecedented "transformation of the public forum doctrine in First Amendment analysis." a. The court of appeals purported to analyze this case within the framework of this Court's "forum" decisions, particularly Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983). In Perry Education Assn. the Court explained (id. at 44) that the standard by which limitations on access to public property must be evaluated differs depending on the character of the property. /13/ To the extent this can properly be regarded as a "forum" case, /14/ the court of appeals was plainly correct in assuming that it fell within the third category of cases mentioned by this Court in Perry -- those involving nonpublic forums. Neither the federal workplace nor the Campaign itself has ever been "open for use by the general public" (Perry, 460 U.S. at 47). See also Minnesota Board for Community Colleges v. Knight, No. 82-898 (Feb. 21, 1984), slip op. 9; Greer v. Spock, 424 U.S. 828, 838 (1976) (noting that federal military reservations have not traditionally served as "a place for free public assembly and communication of thoughts by private citizens"). The federal government, acting in its capacity as employer, has a strong interest in controlling activities in the workplace where the Campaign takes place. Cf. Connick v. Myers, No. 81-1251 (Apr. 20, 1983), slip op. 12. Indeed, the impetus for establishment of the Campaign was not the desire to provide a forum for expressive activity; rather, it was the need to minimize the disruption to the federal workplace that had resulted from an ad hoc charitable solicitation policy. From the outset, federal officials have directed the Campaign, and federal employees have been responsible for direct solicitation; the charities themselves are not permitted to send representatives into the federal workplace. Because it was willing to assume that this case involved a nonpublic forum, the court of appeals should have evaluated the limitation on Campaign participation according to whether it "is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view" (Perry Education Assn., 460 U.S. at 46). As Judge Starr noted (App., infra, 44a, 56a-59a), this Court, in undertaking the "reasonableness" inquiry, has accorded considerable deference to the judgment of government officials concerning the need for restrictions in nonpublic forums. /15/ But although the court of appeals invoked the Perry "reasonableness" standard, in fact it applied a far greater level of scrutiny. Indeed, the court itself confirmed its departure from this Court's precedents when it sharply distinguished what it viewed as the proper standard from what it termed the "rational basis" test applied by the dissent. See App., infra, 38a. /16/ b. The court of appeals' misapplication of the Perry standard led it to reject each of the President's stated reasons for limiting participation in the Campaign to traditional health and welfare charities. But that limitation is clearly reasonable, and it contributes significantly to the success of the Campaign. The distinction between traditional health and welfare charities and other organizations is not illogical or difficult to grasp. Cf. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 635 (1980). Most people would perceive some difference between traditional charities that render services to the needy or the sick (e.g., the American Red Cross), on the one hand, and legal defense funds and other advocacy groups, on the other; there is at least likely to be a greater consensus that the goals of the former are worthwhile. Even the court of appeals recognized (App., infra, 35a) that it may be necessary for the government to draw a line somewhere in order to confine the Campaign to a manageable scope. The President chose to define eligibility in the way that had proved to be successful in practice for 20 years following initiation of the Campaign. As Judge Starr noted (id. at 51a-52a), private employers commonly limit on-the-job charitable solicitation drives to traditional charities. See, e.g., Serv-Air, Inc. v. NLRB, 395 F.2d 557, 560 (10th Cir.), cert. denied, 393 U.S. 840 (1968). The federal government, acting in its capacity as employer, should be free to do likewise. Exec. Order No. 12,404 sets out the purposes of the Campaign: lessening the burden of government and local communities in meeting human health and welfare needs, minimizing disruption of the federal workplace and costs of fund-raising, and avoiding the reality and appearance of using federal resources to advance the cause of political activity or advocacy. Each of these purposes provides a rational basis for the President's decision to limit the Campaign to traditional health and welfare charities. The court of appeals did not reject the proposition that the government has a significant interest in reducing the level of public funds that must be directed to various social programs by maximizing the amount of support for similar private activities. The court nevertheless termed "patently ludicrous" the government's use of this consideration as a basis for restricting the scope of the Campaign (App., infra, 24a), because, in the court's judgment, the efforts of respondents benefit the needy and society in general as much as the efforts or organizations included in the Campaign. But the President surely may rationally conclude, in Judge Starr's words, that "in general a dollar given to a traditional health and welfare charity will more certainly aid the needy than a dollar given to an advocacy group" (App., infra, 67a n.39). Cf. Regan v. Taxation With Representation, No. 81-2338 (May 23, 1983), slip op. 8. Limiting Campaign participation to traditional health and welfare charities also serves to minimize disruption of the federal workplace and costs of fund-raising, as well as to maximize the success of the Campaign. Although it seems self-evident that the government has a strong interest in avoiding disruption and ensuring the success of the Campaign, the court of appeals found it "extremely disturbing" that the government might choose to structure the Campaign in a manner that would minimize employee protests (App., infra, 28a). The court found "no plausible reason to suspect that the limited and unobtrustive communications at issue will in any way interfere with the normal activities in the workplace" and therefore declined to defer to what it referred to as "the fanciful -- and somewhat specious -- speculations" of the government on this subject (id. at 32a). The court also discounted the government's contention that inclusion of legal advocacy groups would threaten the fund-raising ability of the Campaign (id. at 33a-34a). The court of appeals' approach is at odds with the Court's recognition in several nonpublic forum cases /17/ that the government may have an interest in excluding expressive activity that is controversial or that threatens the success of some governmental venture. In such cases the Court has not required government officials to produce evidence in support of their predictions about the likely effect of controversial speech. See Perry Education Assn., 460 U.S. at 52 n.12. The court of appeals' failure to defer to the President's judgment concerning the disruption that could result from including legal advocacy groups in the Campaign is particularly egregious in view of the record in this case, which confirms those judgments. Following the decision in NAACP Legal Defense and Educational Fund, Inc. v. Campbell, 504 F. Supp. 1365 (D.D.C. 1981) (see page 6, supra), federal officials concluded that they were required for the time being to include legal advocacy groups in the Campaign. Judge Starr correctly noted (App., infra, 63a) that "inclusion of the advocacy groups caused both specific losses in the 1983 campaign and threatened the success of the charitable campaign in the years to come." The record contains numerous letters (some of which are cited or reproduced in Judge Starr's opinion, see id. at 63a-66a, 68a-70a, 73a-76a) in which employees, union officials, local Campaign officials, and traditional beneficiaries of the Campaign protested (some in quite vehement terms) the inclusion of advocacy groups; a number of employees indicated that they would not be willing to contribute to the Campaign unless it were returned to its traditional scope. /18/ Some federal employee unions urged employees to boycott the 1983 Campaign because of the inclusion of the National Right to Work Legal Defense Foundation. At least one union boycotted the Campaign on a nationwide basis; others desisted only after federal officials represented that the Campaign would return to its traditional scope in the future. See App., infra, 63a-64a. /19/ Even Members of Congress wrote to protest the inclusion of advocacy, litigation, and lobbying groups in the Campaign. /20/ The court of appeals agreed that the third justification offered by the government -- avoiding the reality and appearance of using federal resources to advance the cause of political activity or advocacy -- is a legitimate governmental interest, /21/ but it disagreed with the President's judgment that exclusion of legal advocacy groups from the Campaign would advance that interest. In the court's view, the tax exempt status of the funds indicated that they were not engaged in political advocacy (App., infra, 25a-26a). But the perception that inclusion in the Campaign of a group like the National Right to Work Legal Defense Foundation is motivated by politics will not be dispelled merely by the fact that the organization is tax exempt. Both common sense and the record in this case support the President's view that inclusion of legal defense funds in the Campaign is likely to be perceived as politically motivated. /22/ There is no good reason for the court of appeals' failure to defer to the judgment of the President on this point. /23/ Finally, limitation of participation in the Campaign to traditional health and welfare charities is reasonable because alternative channels of communication (i.e., solicitation of federal employees outside the workplace) are available to organizations that do not participate in the Campaign. The court of appeals asserted, without citation of authority, that "the availability of alternative forums has never been considered to justify Government attempts to 'pick and choose' among preferred speakers" (App., infra, 36a). But this Court has made clear that the availability of such alternatives is relevant to a determination of the reasonableness of a restriction on expression in a nonpublic forum. See, e.g., Perry Education Assn., 460 U.S. at 53-54; Greer v. Spock, 424 U.S. at 839. /24/ 2. The court of appeals' decision creates substantial practical difficulties for federal officials. It is undisputed that the Campaign serves a significant governmental purpose. See pages 3-4, supra (describing the chaotic situation with respect to charitable solicitation in the federal workplace prior to establishment of the Campaign). For a period of 20 years, the Campaign provided an efficient and effective mechanism through which federal employees made charitable contributions through the federal workplace. The Campaign has been an important source of assistance to traditional health and welfare charities, many of which depend heavily on the Campaign for funding of their services. See, e.g., C.A. App. 381, 485. The decision below requires a significant change in the nature of the Campaign. On its face the decision mandates only that respondents in this case be included in the Campaign. But as the judges dissenting from the denial of rehearing en banc recognized, the court's reasoning sweeps much more broadly. In support of its assertion that respondents were similarly situated to organizations included in the Campaign, the court of appeals stressed that both types of organizations qualified for tax exemption under the Internal Revenue Code (App., infra, 21a). Under that reasoning, any tax exempt organization, presumably including churches, schools, and a variety of other groups, could claim a constitutional right to be included in the Campaign. /25/ Rather than itself determining the scope of the charitable drive it sponsors, as would a private employer, the federal government would assume the role of publicity and collection agent for all tax exempt organizations. Moreover, the court of appeals' holding threatens the efficacy, and perhaps the very existence, of the Campaign. As we discussed in the preceding section, inclusion of advocacy, litigation, and lobbying groups in recent Campaigns (in compliance with court orders) has caused many federal employees to become seriously disenchanted with the Campaign and has led to threatened and actual boycotts of the Campaign. In view of this experience, it seems clear that implementation of the decision below will result in a significant decrease in the success of the Campaign; it may also create morale problems and divert some federal employees from their normal duties. /26/ Officials who implement the decision below are again likely to be perceived as attempting to politicize the Campaign. And under the decision below Congress itself would be powerless to remedy the situation by enacting legislation authorizing conduct of the Campaign in the form it existed during the two decades after it was created by President Kennedy. 3. As harmful as the court of appeals' decision may be to the Campaign, we believe it is likely to create even greater problems in other areas. The court adopted a particularly demanding standard for measuring the reasonableness of government line-drawing with respect to nonpublic forums. Future application of that standard could impede the government's ability to engage in a variety of activities. The government could face First Amendment challenges to distinctions it draws with respect to who may have access to federal buildings, military bases, agency meetings, government publications, activities within federal institutions (e.g., prisons, hospitals), and so on. Under the decision below, even if the government can show that a nonpublic forum is involved, its determinations concerning access will be subjected to exacting scrutiny that allows courts to second guess the judgment of federal officials about the need for restrictions. Since challenges to federal agency actions are frequently brought in the District of Columbia, the First Amendment standard adopted by the court of appeals in this case could cause serious practical difficulties for the government in a wide variety of contexts. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General CAROLYN F. CORWIN Assistant to the Solicitor General ANTHONY J. STEINMEYER Attorney JOSEPH A. MORRIS General Counsel Office of Personnel Management AUGUST 1984 /1/ Until recently the Campaign was governed by the provisions of the Manual on Fund-Raising Within the Federal Service, originally issued in 1963. In 1982, the Office of Personnel Management promulgated a comprehensive regulatory scheme, codified at 5 C.F.R. Pt. 950, implementing the executive orders governing the Campaign. See 47 Fed. Reg. 29496 (1982). These regulations were amended in 1983 and 1984. See 48 Fed. Reg. 29458 (1983); 49 Fed. Reg. 32735 (1984). /2/ These duties were transferred to the Director of the Office of Personnel Management when the Civil Service Commission was abolished in 1978. /3/ The Director of the Office of Personnel Management described the history of the Campaign as follows: Everyone seemed to understand that the Combined Federal Campaign was intended to support the traditional kinds of charities that undertake research into the causes and cures of dread diseases or that render health and welfare services directly to needy people. The world of not-for-profit organizations had always included many other kinds of groups and institutions, of course, ranging from private schools and universities to opera guilds, sports associations, recreation societies, and many more, including the newer "advocacy groups" such as legal defense funds and public policy research organizations, all of which number today in the many tens of thousands. But it had never been though appropriate -- and certainly not practical -- for these kinds of institutions to participate in the Combined Federal Campaign, especially since they were not engaged in supplying health and welfare services directly to human beings who were ill, inform, poor, or distressed, thereby lessening the burdens of government in meeting such needs. Statement of Donald J. Devine before the Subcomm. on Manpower and Housing of the House Comm. on Government operations, 98th Cong., 1st Sess. 3-4 (Mar. 24, 1983), reproduced at C.A. App. 385-386. /4/ We use the terms "legal advocacy groups" and "legal defense funds" to refer generally to organizations that provide legal services to clients based on whether the clients have a cause or claim that the legal defense funds wish to advance; the term "legal aid societies" refers to organizations that make legal services available to clients on the basis of financial need, without distinguishing on the basis of a particular cause. See C.A. App. 433; 5 C.F.R. 950.101(a)(1)(i)(H). /5/ In addition to respondents in this case, new participants in the Campaign included, inter alia, the Conservative Legal Defense and Education Fund, the National Right to Work Legal Defense Foundation, the Center for Auto Safety, and the National Organization for Women Legal Defense and Education Fund. See C.A. App. 550-551. /6/ See also, e.g., 48 Fed. Reg. 29458 (1983); Executive Orders 12353 and 12404 As They Regulate the Combined Federal Campaign (Part 1): Hearing Before a Subcomm. of the House Comm. on Government Operations, 98th Cong., 1st Sess. 69-70 (1983) (statement of Donald J. Devine), reproduced at C.A. App. 400-402. /7/ The description of the operation of the Campaign here and at later points in the petition reflects the regulatory scheme promulgated by the Office of Personnel Management in 1983 to implement Exec. Order No. 12,404. OPM recently revised those regulations in an effort to comply with the decisions below pending further review. See 49 Fed. Reg. 32735 (1984). The new regulations change both the eligibility criteria (which are at issue in this case) and certain operational features of the Campaign, so that the Campaign may proceed in the fall of 1984. The preamble to the new regulations states that they are issued "without prejudice to (OPM's) right or duty further to modify the rules in the event of a supervening direction from a court, the Congress, or the President." Id. at 32735. /8/ Exec. Order No. 12,404 amended Exec. Order No. 12,353, 3 C.F.R. 139 (1982), which replaced the 1961 order establishing the Campaign. Exec. Order No. 12,353 retained the original criteria for participation in the Campaign. /9/ The umbrella organization, known as the Principal Combined Fund Organization (PCFO), is usually a United Way affiliate. The PCFO provides administrative support services to the federal officials charged with conducting the Campaign. Exec. Order No. 12,353, Section 5; 5 C.F.R. 950.211(e). It may be responsible for accounting for amounts pledged and disbursement to designated organizations, as well as printing and preparation of informational materials. 5 C.F.R. 950.509(e) and (h), 950.521. The PCFO does not engage in direct solicitation of funds from employees. /10/ The district court determined that respondents' claim that they should not be excluded from receipt of undesignated contributions received in the Campaign appeared to be more appropriately subject to equal protection analysis than to First aMendment review. It concluded, however, that consideration of this issue would be premature because final regulations implementing Exec. Order No. 12,404 had not yet been promulgated. The court therefore dismissed the claim of access to undesignated funds without prejudice. App., infra, 89a, 95a. /11/ Judge Wright would have found that the Campaign constituted a limited public forum and that the First Amendment requirements applicable to such a forum were not satisfied (App., infra, 42a). /12/ Chief Judge Robinson and Judges Wald and Mikva did not participate in consideration of the rehearing petition. See App., infra, 81a. /13/ The Court in Perry Education Assn. described three categories of cases involving the claimed right of access to public property for purposes of expression. First, in "places which by long tradition or by government fiat have been devoted to assembly and debate," such as public streets and parks, the government may enforce a "content-based exclusion" only if it serves a compelling state interest and is narrowly drawn to achieve that end (460 U.S. at 45). The government may also enforce time, place and manner regulations that "are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication" (ibid.). The second category of cases involves public property that was not traditionally recognized as a public forum but that the government, at least for the time being, "has opened for use by the public as a place for expressive activity" (460 U.S. at 45). In order to fall into this category, public property need not be opened to all segments of the public for all types of expression (id. at 46 n.7). A constitutional right of access extends "only to other entities of similar character" (id. at 48). University meeting facilities, school board meetings, and municipal theaters are within this "limited public forum" category (id. at 45-46). In cases of this type, as long as the open character of the facility is retained, the government "is bound by the same standards as apply in a traditional public forum" (id. at 46). The third category involved "Public property which is not by tradition or designation a forum for public communication" (460 U.S. at 46). "In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view" (ibid.). /14/ We have some doubt whether either the federal workplace or the Campaign is properly described as a "forum." The federal workplace, like any place of employment, does not exist to provide an outlet for expressive activity; rather, its purpose is to get the employer's work done. Cf. Connick v. Myers, No. 81-1251 (Apr. 20, 1983), slip op. 12. Charities are not permitted to send their representatives into the federal workplace. The Campaign itself also does not exist to provide a forum for expression by charities. It is the government that sponsors and operates the Campaign -- a role that gives the President a special interest in defining the scope of the Campaign. Moreover, participating charities communicate only indirectly with employees, by providing short descriptions of their work, which may be edited by federal officials. This Court has recognized that direct charitable solicitation constitutes expression that is protected by the First Amendment. See Secretary of State v. Joseph H. Munson Co. No. 82-766 (June 26, 1984); Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647 (1981); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980). But the indirect and limited communication by organizations that participate in the Campaign is quite different from the sort of charitable solicitation that is "characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political or social issues." Village of Schaumburg, 444 U.S. at 632. Of course, if this case were not subject to First Amendment "forum" analysis, the restrictions on Campaign participation would still be subject to an inquiry into whether the distinction the President has drawn violates the right to equal protection of the laws. Cf. Regan v. Taxation With Representation, No. 81-2338 (May 23, 1983). /15/ For example, in Jones v. North Carolina Prisoners' Union, 433 U.S. 119 (1977), the Court did not attempt to second guess prison officials' predictions about the likelihood of disruption resulting from prison union activities; and in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), the plurality deferred to the judgment of City officials that a policy of excluding political advertising on public transit vehicles would minimize chances of abuse, the appearance of favoritism, and the risk of imposing on a captive audience. And see, e.g., Note, A Unitary Approach to Claims of First Amendment Access to Publicly Owned Property, 35 Stan. L. Rev. 121, 127-131 (1982). /16/ The court of appeals' redefinition of "reasonableness" to signify a standard far more stringent than a rational basis test is directly contrary to the Court's statement in Jones v. North Carolina Prisoners' Union, 433 U.S. at 134 (emphasis added): A prison may be no more easily converted into a public forum than a military base. Thus appellants need only demonstrate a rational basis for their distinctions between organizational groups. The court of appeals appears to have justified its heightened scrutiny largely on the basis of its finding that respondents were similarly situated to other organizations that participate in the Campaign. See App., infra, 20a-24a. We disagree with that finding; it is particularly objectionable in view of the fact that this case was decided on respondents' motion for summary judgment. The court of appeals noted (App., infra, 21a) that both respondents and the organizations that participate in the Campaign were tax exempt for purposes of the Internal Revenue Code and therefore were not engaged in political activities inconsistent with that status. But organizations that have tax exempt status are by no means uniform in terms of the types of services they perform; and the purposes of tax exemption are different from the purposes of the Campaign. Moreover, as Judge Starr correctly noted (App., infra, 59a), this Court has never insisted that groups that are excluded from a nonpublic forum must have a different "status" from those admitted to the forum. The court of appeals also asserted (App., infra, 22a) that respondents "provide or support direct health and welfare services to individuals or their families" (Exec. Order No. 12,404, Section 1(b)) at least as effectively as organizations that had been found to qualify for participation in the Campaign, e.g., the National Parks and Conservation Association and the United States Olympic Committee. Because respondents did not call attention to the inclusion of the latter organizations at the district court stage, there is nothing in the record that indicates what evidence the organizations presented to convince federal officials that they met the direct health and welfare services criterion. (If the government had had occasion to submit such evidence, it would have shown, e.g., that the United States Olympic Committee advised federal officials that it encourages and supports, inter alia, research in medicine and safety, as well as amateur athletics among the handicapped and minorities.) Even if inclusion of the organizations cited by the court of appeals resulted from misapplication of the direct health and welfare services criterion, that would not affect the validity of the criterion itself, which is the issue in this case. /17/ See Perry Education Assn., 460 U.S. at 52 (exclusion of rival union from school mail system helps preserve labor peace within the schools); United States Postal Service v. Council of Greenburgh Civic Ass'ns., 453 U.S. 114, 129 (1981) (prohibition on deposit of unstamped mailable matter in letterboxes helps protect postal revenues); Jones v. North Carolina Prisoners' Union, 433 U.S. at 132-133 (prison officials' judgment about likelihood of disruption warrants restrictions on prison union activities); Lehman v. City of Shaker Heights, 418 U.S. at 304 (exclusion of political advertising on public transit vehicles helps to avoid jeopardizing revenues to the City). The Court has emphasized that the crucial question is whether a restriction on access is "reasonable in light of the purpose which the forum at issue serves." Perry Education Assn., 460 U.S. at 49. /18/ See C.A. App. 356, 358-361, 364-369, 373-380, 468, 470-473, 475-507. /19/ See also C.A. App. 361, 473, 476, 478-479, 482-484, 486, 487, 489-492, 494. /20/ See C.A. App. 362-363, 371-372. /21/ This Court has recognized the strong interest in preserving neutrality and the appearance of neutrality in the federal workplace in the Hatch Act cases. See Civil Service Commission v. Letter Carriers, 413 U.S. 548, 563-564 (1973). And in Lehman v. City of Shaker Heights, 418 U.S. at 305, and Greer v. Spock, 424 U.S. at 839, the Court concluded that the desire to avoid any appearance of favoritism or entanglement with political activity would justify restrictions on expressive activity in nonpublic forums. /22/ See, e.g., the statement of the AFL-CIO in response to the inclusion in the Campaign of the National Right to Work Legal Defense Foundation: "The Reagan Administration has granted yet another opportunity to the far right wing to enrich itself, this time at the expense of federal and postal employees and the needy" (C.A. App. 96). See also App., infra, 68a-69a. /23/ Deference is particularly appropriate in view of the posture of this case. Since the case was decided on respondents' motion for summary judgment, evidence relating to the reasonableness of restrictions on Campaign participation should be viewed in the light most favorable to the government. /24/ The panel majority did not reach the second part of the Perry standard for nonpublic forums -- whether a restriction is based on public officials' opposition to the speaker's view. The limitations on Campaign participation at issue here do not reflect any attempt to differentiate among organizations on the basis of their political or philosophical leanings; indeed, the groups that would be excluded from the Campaign span a wide range of views (see page 6 note 5 supra). In response to the suggestion that Exec. Order No. 12,404 discriminates against groups that advocate use of litigation to achieve their goals, Judge Starr correctly noted (App., infra, 71a) that litigation is properly regarded not as a viewpoint, but merely as a means of promoting a viewpoint. /25/ The 1983 Annual Report of the Commissioner of Internal Revenue and the Chief Counsel for the Internal Revenue Service, at 64, Table 20, states that over 300,000 organizations are listed as tax exempt under 26 U.S.C. 501(c)(3). (This figure does not include churches, which need not apply for an exemption.) /26/ The court of appeals' suggestion (App., infra, 32a) that the government may discipline federal employees who engage in Campaign-related disruption that impairs efficiency misses the point. The government's interest lies in avoiding situations that give rise to the need for discipline. APPENDIX