CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 84-312 Argued: February 19, 1985 --- Decided: July 2, 1985
JUSTICE O'CONNOR delivered the opinion of the Court.
This case requires us to decide whether the Federal Government violates the First Amendment when it excludes legal defense and political advocacy organizations from participation in the Combined Federal Campaign (CFC or Campaign), a charity drive aimed at federal employees. The United States District Court for the District of Columbia held that the respondent organizations could not be excluded from the CFC, and the Court of Appeals affirmed. 234 U.S.App.D.C. 148, 727 F.2d 1247 (1984). We granted certiorari, 469 U.S. 929 (1984), and we now reverse.
The CFC is an annual charitable fundraising drive conducted in the federal workplace during working hours largely through the voluntary efforts of federal employees. At all times relevant to this litigation, participating organizations [p791] confined their fundraising activities to a 30-word statement submitted by them for inclusion in the Campaign literature. [n1] Volunteer federal employees distribute to their coworkers literature describing the Campaign and the participants along with pledge cards. 5 CFR §§ 950.521(c) and (e) (1983). Contributions may take the form of either a payroll deduction or a lump-sum payment made to a designated agency or to the general Campaign fund. § 950.523. Undesignated contributions are distributed on the local level by a private umbrella organization to certain participating organizations. § 950.509(c)(5). Designated funds are paid directly to the specified recipient. Through the CFC, the Government employees contribute in excess of $100 million to charitable organizations each year. Brief for Petitioner 3.
The CFC is a relatively recent development. Prior to 1957, charitable solicitation in the federal workplace occurred on an ad hoc basis. Federal managers received requests from dozens of organizations seeking endorsements and the right to solicit contributions from federal employees at their worksites. U.S. Civil Service Commission, Manual on Fund-Raising Within the Federal Service for Voluntary Health and Welfare Agencies § 1.1 (1977) (Manual on Fund-Raising). In facilities where solicitation was permitted, weekly campaigns were commonplace. Executive Orders 12353 and 12404 As They Regulate the Combined Federal Campaign (Part 1), Hearing before the House Committee on [p792] Government Operations, 98th Cong., 1st Sess., 67-68 (1983). Because no systemwide regulations were in place to provide for orderly procedure, fundraising frequently consisted of passing an empty coffee can from employee to employee. Id. at 68. Eventually, the increasing number of entities seeking access to federal buildings and the multiplicity of appeals disrupted the work environment and confused employees who were unfamiliar with the groups seeking contributions. Ibid.
In 1957, President Eisenhower established the forerunner of the Combined Federal Campaign to bring order to the solicitation process and to ensure truly voluntary giving by federal employees. Exec.Order No. 10728, 3 CFR 387 (1954-1958 Comp.). The Order established an advisory committee and set forth general procedures and standards for a uniform fundraising program. It permitted no more than three charitable solicitations annually, and established a system requiring prior approval by a committee on fundraising for participation by "voluntary health and welfare" agencies. Id. §§ 1(c) and 3(d). One of the principal goals of the plan was to minimize the disturbance of federal employees while on duty. Id. § 1(d).
Four years after this initial effort, President Kennedy abolished the advisory committee and ordered the Chairman of the Civil Service Commission to oversee fundraising by "national voluntary health and welfare agencies and such other national voluntary agencies as may be appropriate" in the solicitation of contributions from all federal employees. Exec.Order No. 10927, 3 CFR 454 (1959-1963 Comp.). From 1963 until 1982, the CFC was implemented by guidelines set forth in the Civil Service Commission's Manual on Fund-Raising. Only tax-exempt, nonprofit charitable organizations that were supported by contributions from the public and that provided direct health and welfare services to individuals were eligible to participate in the CFC. Manual on Fund-Raising § 5.21 (1977). [p793]
Respondents in this case are the NAACP Legal Defense and Educational Fund, Inc., the Sierra Club Legal Defense Fund, the Puerto Rican Legal Defense and Education Fund, the Federally Employed Women Legal Defense and Education Fund, the Indian Law Resource Center, the Lawyers' Committee for Civil Rights under Law, and the Natural Resources Defense Council. Each of the respondents attempts to influence public policy through one or more of the following means: political activity, advocacy, lobbying, or litigation on behalf of others. In 1980, two of the respondents -- the NAACP Legal Defense and Educational Fund, Inc., and the Puerto Rican Legal Defense and Education Fund (the Legal Defense Funds) -- joined by the NAACP Special Contribution Fund, for the first time sought to participate in the CFC. The Office of Personnel Management (OPM), which in 1978 had assumed the duties of the Civil Service Commission, refused admission to the Legal Defense Funds. This action led to a series of three lawsuits, the third of which is before us today.
In the first action, the Legal Defense Funds challenged the "direct services" requirement on the grounds that it violated the First Amendment and the equal protection component of the Fifth Amendment. NAACP Legal Defense & Educational Fund, Inc. v. Campbell, 504 F.Supp. 1365 (DC 1981) (NAACP I). The District Court did not reach the equal protection challenge, because it found that the "direct services" requirement as formulated in the Manual on Fund-Raising was too vague to satisfy the strict standards of specificity required by the First Amendment. Id. at 1368. The Government did not appeal the District Court's decision, and the plaintiffs, along with other legal defense funds, were allowed to participate in the 1982 and 1983 Campaigns and receive funds designated for their use by federal employees.
In the second proceeding, the Legal Defense Funds challenged the decision of the Director of OPM to authorize local federal coordinating groups to determine what share, if any, [p794] of the undesignated funds to allocate to organizations classified as national service associations. NAACP Legal Defense & Educational Fund, Inc. v. Devine, 560 F.Supp. 667, 672 (DC 1983) (NAACP II). The plaintiff legal defense funds categorized themselves as "national service associations," a category that OPM had defined as agencies having a domestic welfare service function which includes direct services to meet basic human welfare needs. Manual on Fund-Raising § 4.2(e). The District Court rejected claims that OPM's decision, which essentially permitted local coordinating groups to choose not to allocate undesignated funds to the Legal Defense Funds, violated their rights under the Due Process Clause and the First Amendment. 560 F.Supp. at 676. The court found that local coordinating groups must have flexibility to distribute funds in accordance with the intent of donors and the benefit to the local community. Due process was satisfied by the participation of national service associations in the process by which the local groups determined how to distribute funds. Id. at 675. The court determined that the exclusion was necessary to protect the First Amendment rights of donors not to contribute to organizations whose purposes were inconsistent with their beliefs and to serve the Government's interest in ensuring that as much money as possible was received through the Campaign. Id. at 675-676. The Legal Defense Funds did not appeal the decision.
In response to the District Court's decision in NAACP I, President Reagan took several steps to restore the CFC to what he determined to be its original purpose. In 1982, the President issued Executive Order No 12353, 3 CFR 139 (1983), to replace the 1961 Executive Order which had established the CFC. The new Order retained the original limitation to "national voluntary health and welfare agencies and such other national voluntary agencies as may be appropriate," and delegated to the Director of the Office of Personnel Management the authority to establish criteria for determining appropriateness. Shortly thereafter, the President [p795] amended Executive Order No. 12353 to specify the purposes of the CFC and to identify groups whose participation would be consistent with those purposes. Exec.Order No. 12404, 3 CFR 151 (1984). The CFC was designed to lessen the Government's burden in meeting human health and welfare needs by providing a convenient, nondisruptive channel for federal employees to contribute to nonpartisan agencies that directly serve those needs. Id., § 1(b), amending Exec.Order No. 12353, § 2(b)(1). The Order limited participation to "voluntary, charitable, health and welfare agencies that provide or support direct health and welfare services to individuals or their families," ibid., amending Exec.Order No. 12353, § 2(b)(2), [n2] and specifically excluded those
[a]gencies 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.
Ibid., amending Exec.Order No. 12353, § 2(b)(3).
Respondents brought this action challenging their threatened exclusion under the new Executive Order. They argued that the denial of the right to seek designated funds violates their First Amendment right to solicit charitable contributions, and that the denial of the right to participate in undesignated funds violates their rights under the equal protection [p796] component of the Fifth Amendment. Respondents also contended that the "direct services" requirement in § 1(b) of the Executive Order suffered from the same vagueness problems as the requirement struck down in NAACP I. The District Court dismissed the vagueness challenge and the equal protection claim on ripeness grounds. NAACP Legal Defense & Educational Fund, Inc. v. Devine, 567 F.Supp. 401 (DC 1983) (NAACP III). Those rulings were not appealed, and are not before us. The District Court also held that respondents' exclusion from the designated contribution portion of the CFC was unconstitutional. The court reasoned that the CFC was a "limited public forum," and that respondents' exclusion was content-based. Id. at 407. Finding that the regulation was not narrowly drawn to support a compelling governmental interest, the District Court granted summary judgment to respondents and enjoined the denial of respondents' pending or future applications to participate in the solicitation of designated contributions. Id. at 410.
The judgment was affirmed by a divided panel of the United States Court of Appeals for the District of Columbia Circuit. NAACP Legal Defense & Educational Fund, Inc. v. Devine, 234 U.S.App.D.C. 148, 727 F.2d 1247 (1984). The majority did not decide whether the CFC was a limited public forum or a nonpublic forum under Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983), because, in its view, the Government restrictions were not reasonable, and therefore failed even the least exacting scrutiny. The dissent disagreed with both the analysis used and the result reached by the majority. 234 U.S.App.D.C. at 169, 727 F.2d at 1268 (Starr, J., dissenting). The dissent defined the relevant forum as the federal workplace, and found that it was a nonpublic forum under our cases. Based on this characterization, the dissent argued that the Government must merely provide a rational basis for the exclusion, and that this standard was met here. An equally divided court denied the Government's request for rehearing en banc. App. to Pet. for Cert. 80a. [p797]
The issue presented is whether respondents have a First Amendment right to solicit contributions that was violated by their exclusion from the CFC. To resolve this issue, we must first decide whether solicitation in the context of the CFC is speech protected by the First Amendment, for, if it is not, we need go no further. Assuming that such solicitation is protected speech, we must identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic. Finally, we must assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard. Applying this analysis, we find that respondents' solicitation is protected speech occurring in the context of a nonpublic forum, and that the Government's reasons for excluding respondents from the CFC appear, at least facially, to satisfy the reasonableness standard. We express no opinion on the question whether petitioner's explanation is merely a pretext for viewpoint discrimination. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Charitable solicitation of funds has been recognized by this Court as a form of protected speech. In Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980), the Court observed:
[S]oliciting funds involves interests protected by the First Amendment's guarantee of freedom of speech. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 761 (1976). . . .
Id. at 629.
Soliciting financial support is undoubtedly subject to reasonable regulation, but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps [p798] persuasive speech seeking support for particular causes or for particular views . . . and for the reality that, without solicitation, the flow of such information and advocacy would likely cease. . . . Furthermore, . . . it has not been dealt with in our cases as a variety of purely commercial speech.
Id. at 632. See also Bates v. State Bar of Arizona, 433 U.S. 350, 363 (1977).
In Village of Schaumburg, the Court struck down a local ordinance prohibiting solicitation in a public forum by charitable organizations that expended less than 75 percent of the receipts collected for charitable purposes. The plaintiff in that case was a public advocacy group that employed canvassers to distribute literature and answer questions about the group's goals and activities, as well as to solicit contributions. The Court found that
charitable appeals for funds, on the street or door to door, involve a variety of speech interests -- communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes -- that are within the protection of the First Amendment.
444 U.S. at 632. The ordinance was invalid, the Court held, because it unduly interfered with the exercise of protected rights.
Although Village of Schaumburg establishes that noncommercial solicitation is protected by the First Amendment, petitioner argues that solicitation within the confines of the CFC is entitled to a lesser degree of protection. This argument is premised on the inherent differences between the face-to-face solicitation involved in Village of Schaumburg and the 30-word written statements at issue here. In a face-to-face encounter, there is a greater opportunity for the exchange of ideas and the propagation of views than is available in the CFC. The statements contained in the CFC literature are merely informative. Although prepared by the participants, the statements must conform to federal standards [p799] which prohibit persuasive speech and the use of symbols "or other distractions" aimed at competing for the potential donor's attention. 5 CFR § 950.521(d) (1983).
Notwithstanding the significant distinctions between in-person solicitation and solicitation in the abbreviated context of the CFC, we find that the latter deserves First Amendment protection. The brief statements in the CFC literature directly advance the speaker's interest in informing readers about its existence and its goals. Moreover, an employee's contribution in response to a request for funds functions as a general expression of support for the recipient and its views. See Buckley v. Valeo, 424 U.S. 1, 21 (1976). Although the CFC does not entail direct discourse between the solicitor and the donor, the CFC literature facilitates the dissemination of views and ideas by directing employees to the soliciting agency to obtain more extensive information. 5 CFR § 950.521(e)(ii) (1983). Finally, without the funds obtained from solicitation in various fora, the organization's continuing ability to communicate its ideas and goals may be jeopardized. See Village of Schaumburg v. Citizens for a Better Environment, supra, at 632. Thus, the nexus between solicitation and the communication of information and advocacy of causes is present in the CFC as in other contexts. Although Government restrictions on the length and content of the request are relevant to ascertaining the Government's intent as to the nature of the forum created, they do not negate the finding that the request implicates interests protected by the First Amendment.
The conclusion that the solicitation which occurs in the CFC is protected speech merely begins our inquiry. Even protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property [p800] without regard to the nature of the property or to the disruption that might be caused by the speaker's activities. Cf. Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 136 (1977). Recognizing that the Government,
no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated,
Greer v. Spock, 424 U.S. 828, 836 (1976), the Court has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum. Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. See Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. at 45. Similarly, when the Government has intentionally designated a place or means of communication as a public forum, speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are "reasonable, and [are] not an effort to suppress expression merely because public officials oppose the speaker's view." Id. at 46.
To determine whether the First Amendment permits the Government to exclude respondents from the CFC, we must first decide whether the forum consists of the federal workplace, as petitioner contends, or the CFC, as respondents maintain. Having defined the relevant forum, we must then determine whether it is public or nonpublic in nature.
Petitioner contends that a First Amendment forum necessarily consists of tangible government property. Because the only "property" involved here is the federal workplace, in petitioner's view, the workplace constitutes the relevant [p801] forum. Under this analysis, the CFC is merely an activity that takes place in the federal workplace. Respondents, in contrast, argue that the forum should be defined in terms of the access sought by the speaker. Under their view, the particular channel of communication constitutes the forum for First Amendment purposes. Because respondents seek access only to the CFC, and do not claim a general right to engage in face-to-face solicitation in the federal workplace, they contend that the relevant forum is the CFC and its attendant literature.
We agree with respondents that the relevant forum for our purposes is the CFC. Although petitioner is correct that, as an initial matter, a speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns, forum analysis is not completed merely by identifying the government property at issue. Rather, in defining the forum, we have focused on the access sought by the speaker. When speakers seek general access to public property, the forum encompasses that property. See, e.g., Greer v. Spock, supra. In cases in which limited access is sought, our cases have taken a more tailored approach to ascertaining the perimeters of a forum within the confines of the government property. For example, Perry Education Assn. v. Perry Local Educators' Assn., supra, examined the access sought by the speaker and defined the forum as a school's internal mail system and the teachers' mailboxes, notwithstanding that an "internal mail system" lacks a physical situs. Similarly, in Lehman v. City of Shaker Heights, 418 U.S. 298, 300 (1974), where petitioners sought to compel the city to permit political advertising on city-owned buses, the Court treated the advertising spaces on the buses as the forum. Here, as in Perry Education Assn., respondents seek access to a particular means of communication. Consistent with the approach taken in prior cases, we find that the CFC, rather than the federal workplace, is the forum. This conclusion does not mean, [p802] however, that the Court will ignore the special nature and function of the federal workplace in evaluating the limits that may be imposed on an organization's right to participate in the CFC. See Perry Education Assn. v. Perry Local Educators' Assn., supra, at 44.
Having identified the forum as the CFC, we must decide whether it is nonpublic or public in nature. Most relevant in this regard, of course, is Perry Education Assn. There, the Court identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum. Traditional public fora are those places which, "by long tradition or by government fiat, have been devoted to assembly and debate." 460 U.S. at 45. Public streets and parks fall into this category. See Hague v. CIO, 307 U.S. 496, 515 (1939). In addition to traditional public fora, a public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects. Perry Education Assn., supra, at 45 and 46, n. 7. Of course, the government "is not required to indefinitely retain the open character of the facility." Id. at 46.
The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse. Ibid. Accordingly, the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum. Ibid. The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government's intent. For example, in Widmar v. Vincent, 454 U.S. 263 (1981), we found that a state university that had an express policy of making its meeting facilities available to registered student groups had created a public forum for their use. Id. at 267. The policy evidenced a clear intent to create a public forum, not [p803] withstanding the University's erroneous conclusion that the Establishment Clause required the exclusion of groups meeting for religious purposes. Additionally, we noted that a university campus, at least as to its students, possesses many of the characteristics of a traditional public forum. Id. at 267, n. 5. And in Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167 (1976), the Court held that a forum for citizen involvement was created by a state statute providing for open school board meetings. Id. at 174, n. 6. Similarly, the Court found a public forum where a municipal auditorium and a city-leased theater were designed for and dedicated to expressive activities. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975)
Not every instrumentality used for communication, however, is a traditional public forum or a public forum by designation. United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 130, n. 6 (1981). "[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government." Id. at 129. We will not find that a public forum has been created in the face of clear evidence of a contrary intent, see ibid., nor will we infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity. See, e.g., Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119 (1977). In Perry Education Assn., we found that the School District's internal mail system was not a public forum. In contrast to the general access policy in Widmar, school board policy did not grant general access to the school mail system. The practice was to require permission from the individual school principal before access to the system to communicate with teachers was granted. Similarly, the evidence in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), revealed that the city intended to limit access to the advertising spaces on city transit buses. It had done so for 26 years, and [p804] its management contract required the managing company to exercise control over the subject matter of the displays. Id. at 299-300. Additionally, the Court found that the city's use of the property as a commercial enterprise was inconsistent with an intent to designate the car cards as a public forum. In cases where the principal function of the property would be disrupted by expressive activity, the Court is particularly reluctant to hold that the government intended to designate a public forum. Accordingly, we have held that military reservations, Greer v. Spock, 424 U.S. 828 (1976), and jailhouse grounds, Adderley v. Florida, 385 U.S. 39 (1966), do not constitute public fora.
Here, the parties agree that neither the CFC nor the federal workplace is a traditional public forum. Respondents argue, however, that the Government created a limited public forum for use by all charitable organizations to solicit funds from federal employees. Petitioner contends, and we agree, that neither its practice nor its policy is consistent with an intent to designate the CFC as a public forum open to all tax-exempt organizations. In 1980, an estimated 850,000 organizations qualified for tax-exempt status. H. Godfrey, Handbook on Tax Exempt Organizations 5 (1983). In contrast, only 237 organizations participated in the 1981 CFC of the National Capital Area. 1981 Combined Federal Campaign Contributor's Leaflet, National Capital Area. The Government's consistent policy has been to limit participation in the CFC to "appropriate" voluntary agencies, and to require agencies seeking admission to obtain permission from federal and local Campaign officials. Although the record does not show how many organizations have been denied permission throughout the 24-year history of the CFC, there is no evidence suggesting that the granting of the requisite permission is merely ministerial. Cf. Perry Education Assn., 460 U.S. at 47. The Civil Service Commission and, after 1978, the Office of Personnel Management developed extensive admission criteria to limit access to the Campaign to [p805] those organizations considered appropriate. See Manual on Fund-Raising, ch. 5, and 5 CFR pt. 950 (1983). Such selective access, unsupported by evidence of a purposeful designation for public use, does not create a public forum. See Greer v. Spock, supra, at 838, n. 10.
Nor does the history of the CFC support a finding that the Government was motivated by an affirmative desire to provide an open forum for charitable solicitation in the federal workplace when it began the Campaign. The historical background indicates that the Campaign was designed to minimize the disruption to the workplace that had resulted from unlimited ad hoc solicitation activities by lessening the amount of expressive activity occurring on federal property. Indeed, the OPM stringently limited expression to the 30-word statement included in the Campaign literature. The decision of the Government to limit access to the CFC is not dispositive in itself; instead, it is relevant for what it suggests about the Government's intent in creating the forum. The Government did not create the CFC for purposes of providing a forum for expressive activity. That such activity occurs in the context of the forum created does not imply that the forum thereby becomes a public forum for First Amendment purposes. See United States Postal Service v. Council of Greenburgh Civic Assns., supra, at 130, n. 6, and cases cited therein.
An examination of the nature of the Government property involved strengthens the conclusion that the CFC is a nonpublic forum. Cf. Greer v. Spock, supra, at 838 ("[T]he business of a military installation [is] to train soldiers, not to provide a public forum"). The federal workplace, like any place of employment, exists to accomplish the business of the employer. Cf. Connick v. Myers, 461 U.S. 138, 150-151 (1983). "[T]he Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs." Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (POWELL, J., concurring in part). It follows that the [p806] Government has the right to exercise control over access to the federal workplace in order to avoid interruptions to the performance of the duties of its employees. Cf. United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. at 128-129. In light of the Government policy in creating the CFC and its practice in limiting access, we conclude that the CFC is a nonpublic forum.
Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint-neutral. Perry Education Assn., supra, at 49. Although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum, see Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), or if he is not a member of the class of speakers for whose especial benefit the forum was created, see Perry Education Assn., supra, the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject. The Court of Appeals found it unnecessary to resolve whether the government's denial of access to respondents was viewpoint-based, because it determined that respondents' exclusion was unreasonable in light of the purpose served by the CFC.
Petitioner maintains that the purpose of the CFC is to provide a means for traditional health and welfare charities to solicit contributions in the federal workplace, while at the same time maximizing private support of social programs that would otherwise have to be supported by Government funds and minimizing costs to the Federal Government by controlling the time that federal employees expend on the Campaign. Petitioner posits that excluding agencies that attempt to influence the outcome of political elections or the determination of public policy is reasonable in light of this [p807] purpose. First, petitioner contends that there is likely to be a general consensus among employees that traditional health and welfare charities are worthwhile, as compared with the more diverse views concerning the goals of organizations like respondents. Limiting participation to widely accepted groups is likely to contribute significantly to employees' acceptance of the Campaign, and consequently to its ultimate success. In addition, because the CFC is conducted largely through the efforts of federal employees during their working hours, any controversy surrounding the CFC would produce unwelcome disruption. Finally, the President determined that agencies seeking to affect the outcome of elections or the determination of public policy should be denied access to the CFC in order to avoid the reality and the appearance of Government favoritism or entanglement with particular viewpoints. In such circumstances, petitioner contends that the decision to deny access to such groups was reasonable.
In respondents' view, the reasonableness standard is satisfied only when there is some basic incompatibility between the communication at issue and the principal activity occurring on the Government property. Respondents contend that the purpose of the CFC is to permit solicitation by groups that provide health and welfare services. By permitting such solicitation to take place in the federal workplace, respondents maintain, the Government has concluded that such activity is consistent with the activities usually conducted there. Because respondents are seeking to solicit such contributions and their activities result in direct, tangible benefits to the groups they represent, the Government's attempt to exclude them is unreasonable. Respondents reject petitioner's justifications on the ground that they are unsupported by the record.
The Court of Appeals accepted the position advanced by respondents. When the excluded and included speakers share a similar "status," the court asserted that a heightened reasonableness inquiry is appropriate. Here the status of [p808] respondents, in the court's view, is analogous to that of traditional health and welfare organizations, because both provide direct health and welfare services and are tax exempt under 26 U.S.C. § 501(c)(3). 234 U.S.App.D.C. at 159, 727 F.2d at 1258. In such circumstances, the Court of Appeals believed that the Government's decision to exclude some speakers from the nonpublic forum is reasonable only if the exclusion furthers a legitimate Government interest and that interest adequately accounts for the differential treatment accorded the speakers. Id. at 160, 727 F.2d at 1259.
Under this test, the Court of Appeals rejected petitioner's justifications as unreasonable. The court agreed that assistance to the needy is a laudable goal, but noted that respondents further this goal because their litigation efforts achieved direct benefits for many low-income persons. Id. at 161, 727 F.2d at 1260. It also agreed that avoiding the appearance of federal support for partisan causes is a legitimate interest, but rejected it as a justification in this case because the Tax Code does not define legal defense funds as political advocacy groups. Ibid. Relying principally on public forum cases, the court declined to accept the rationale that exclusion could be premised on the Government's interest in minimizing disruption in the workplace and maximizing the success of the Campaign. Id. at 162-163, 727 F.2d at 1261-1262.
Based on the present record, we disagree, and conclude that respondents may be excluded from the CFC. The Court of Appeals' conclusion to the contrary fails to reflect the nature of a nonpublic forum. The Government's decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation. In contrast to a public forum, a finding of strict incompatibility between the nature of the speech or the identity of the speaker and the functioning of the nonpublic forum is not mandated. Cf. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983); Lehman v. City [473 U.S. 809] of Shaker Heights, 418 U.S. 298 (1974). Even if some incompatibility with general expressive activity were required, the CFC would meet the requirement, because it would be administratively unmanageable if access could not be curtailed in a reasonable manner. Nor is there a requirement that the restriction be narrowly tailored, or that the Government's interest be compelling. The First Amendment does not demand unrestricted access to a nonpublic forum merely because use of that forum may be the most efficient means of delivering the speaker's message. See United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. at 129. Rarely will a nonpublic forum provide the only means of contact with a particular audience. Here, as in Perry Education Assn., supra, at 53-54, the speakers have access to alternative channels, including direct mail and in-person solicitation outside the workplace, to solicit contributions from federal employees.
The reasonableness of the Government's restriction of access to a nonpublic forum must be assessed in the light of the purpose of the forum and all the surrounding circumstances. Here, the President could reasonably conclude that a dollar directly spent on providing food or shelter to the needy is more beneficial than a dollar spent on litigation that might or might not result in aid to the needy. Moreover, avoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum. See Greer v. Spock, 424 U.S. at 839; Lehman v. City of Shaker Heights, supra, at 304. In furthering this interest, the Government is not bound by decisions of other executive agencies made in other contexts. Thus, respondents' tax status, while perhaps relevant, does not determine the reasonableness of the Government's conclusion that participation by such agencies in the CFC will create the appearance of favoritism.
The Court of Appeals' rejection of the Government's interest in avoiding controversy that would disrupt the workplace and adversely affect the Campaign is inconsistent with our [p810] prior cases. In Perry Education Assn., supra, at 52, we noted that "exclusion of the rival union may reasonably be considered a means of insuring labor peace within the schools." Similarly, the exclusion of respondents may reasonably be considered a means of "insuring peace" in the federal workplace. Inasmuch as the Court of Appeals rejected this reason for lack of conclusive proof of an actual effect on the workplace, it ignored the teachings of this Court that the Government need not wait until havoc is wreaked to restrict access to a nonpublic forum. 460 U.S. at 52, n. 12.
Finally, the record amply supports an inference that respondents' participation in the CFC jeopardized the success of the Campaign. OPM submitted a number of letters from federal employees and managers, as well as from Chairmen of local Federal Coordinating Committees and Members of Congress expressing concern about the inclusion of groups termed "political" or "nontraditional" in the CFC. More than 80 percent of this correspondence related requests that the CFC be restricted to "non-political," "non-advocacy," or "traditional" charitable organizations. Deposition of P. Kent Bailey, Program Analyst for OPM, App. 275, 276. In addition, OPM received approximately 1,450 telephone calls complaining about the inclusion of respondents and similar agencies in the 1983 Campaign. Id. at 286. Many Campaign workers indicated that extra effort was required to persuade disgruntled employees to contribute. Id. at 287. The evidence indicated that the number of contributors had declined in some areas. Id. at 305. Other areas reported significant declines in the amount of contributions. See Executive Orders 12353 and 12404 as they Regulate the Combined Federal Campaign (Part 1), Hearing before the House Committee on Government Operations, 89th Cong., 1st Sess., 67 (1983) (statement of Donald J. Devine, Director, OPM). Thus, the record adequately supported petitioner's position that respondents' continued participation in the Campaign would be detrimental to the Campaign and disruptive of the federal [p811] workplace. Although the avoidance of controversy is not a valid ground for restricting speech in a public forum, a nonpublic forum, by definition, is not dedicated to general debate or the free exchange of ideas. The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose.
On this record, the Government's posited justifications for denying respondents access to the CFC appear to be reasonable in light of the purpose of the CFC. The existence of reasonable grounds for limiting access to a nonpublic forum, however, will not save a regulation that is in reality a facade for viewpoint-based discrimination. See Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. at 49; cf. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). Although both the District Court and the Court of Appeals alluded to the argument that the Government excluded respondents in an attempt to suppress their points of view, neither court made a finding on the issue. The District Court erroneously characterized the CFC as a limited public forum and concluded that respondents' exclusion was impermissibly content-based, because the statements in the CFC literature as to how the contributions would be used caused the controversy that ultimately led to respondents' exclusion. 567 F.Supp. at 407. The District Court, therefore, did not reach petitioner's argument that the exclusion was viewpoint-neutral. Ibid. Also declining to decide the issue, the Court of Appeals suggested that respondents may have been excluded because petitioner simply disagreed with their viewpoints. 234 U.S.App.D.C. at 157, 160, n. 12, 727 F.2d at 1256, 1259, n. 12. The Court of Appeals found it unnecessary to resolve the issue, because it concluded that the exclusion was unreasonable.
Petitioner argues that a decision to exclude all advocacy groups, regardless of political or philosophical orientation, is, [p812] by definition, viewpoint-neutral. Brief for Petitioner 30. Exclusion of groups advocating the use of litigation is not viewpoint-based, petitioner asserts, because litigation is a means of promoting a viewpoint, not a viewpoint in itself. Id. at 30-31, n. 23. While we accept the validity and reasonableness of the justifications offered by petitioner for excluding advocacy groups from the CFC, those justifications cannot save an exclusion that is, in fact, based on the desire to suppress a particular point of view. Cf. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. at 634. Petitioner contends that controversial groups must be eliminated from the CFC to avoid disruption and ensure the success of the Campaign. As noted supra, we agree that these are facially neutral and valid justifications for exclusion from the nonpublic forum created by the CFC. Nonetheless, the purported concern to avoid controversy excited by particular groups may conceal a bias against the viewpoint advanced by the excluded speakers. In addition, petitioner maintains that limiting CFC participation to organizations that provide direct health and welfare services to needy persons is necessary to achieve the goals of the CFC as set forth in Executive Order 12404. Although this concern is also sufficient to provide reasonable grounds for excluding certain groups from the CFC, respondents offered some evidence to cast doubt on its genuineness. Organizations that do not provide direct health and welfare services, such as the World Wildlife Fund, the Wilderness Society, and the United States Olympic Committee, have been permitted to participate in the CFC. App. 427-428. Although there is no requirement that regulations limiting access to a nonpublic forum must be precisely tailored, the issue whether the Government excluded respondents because it disagreed with their viewpoints was neither decided below nor fully briefed before this Court. We decline to decide in the first instance whether the exclusion of respondents was impermissibly motivated by [p813] a desire to suppress a particular point of view. Respondents are free to pursue this contention on remand.
We conclude that the Government does not violate the First Amendment when it limits participation in the CFC in order to minimize disruption to the federal workplace, to ensure the success of the fundraising effort, or to avoid the appearance of political favoritism without regard to the viewpoint of the excluded groups. Accordingly, we reverse the judgment of the Court of Appeals that the exclusion of respondents was unreasonable, and we remand this case for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE MARSHALL took no part in the consideration or decision of this case. JUSTICE POWELL took no part in the decision of this case.
1. Effective September 17, 1984, the Office of Personnel Management (OPM) has revised its regulations in an effort to comply with the decisions below. See 49 Fed.Reg. 32735. The new regulations have changed the eligibility criteria at issue in this case and certain operational features of the Campaign. OPM expressly reserved the right to modify the rules in the event of a supervening direction by a court, Congress, or the President. Ibid. OPM's position before this Court is consistent with a desire to reinstate its prior regulations. Given these circumstances, the revision of the regulations at issue does not render this case moot. See Maher v. Roe, 432 U.S. 464, 468-469, n. 4 (1977).
To meet [Campaign] 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 direct health and welfare services must be available to Federal employees in the local campaign solicitation area, unless they are rendered to needy persons overseas. Such services must directly benefit human beings, whether children, youth, adults, the aged, the ill and infirm, or the mentally or physically handicapped. 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.
Exec.Order No. 12404, § 1(b), amending Exec.Order No. 12353, § 2(b)(2).