National Black United Fund, Inc., v. Donald J. Devine, Director, United States Office Ofpersonnel Management, United Way of America, Appellant, 667 F.2d 173 (D.C. Cir. 1981)

In 1961, President Kennedy ordered the Civil Service Commission ("Commission") to organize the various charity drives held at federal workplaces into a coordinated, unified campaign.¹  The Combined Federal Campaign ("CFC" or "campaign"), under the supervision of the Commission, has since become an invaluable source of support for participating charities.²  Furthermore, as the exclusive vehicle for on-the-job charitable solicitation, it has substantially reduced the disruption caused by multiple, uncoordinated fund drives carried on in the federal workplace by individual charities.

In this action, appellee National Black United Fund ("NBUF") a voluntary welfare organization, contends that the success of the CFC has been achieved in part at the expense of First Amendment freedoms. Specifically, appellee challenges the Commission's rejection of NBUF's application to participate in the campaign as a "national voluntary agency." Appellee argues that the Commission's decision unconstitutionally prevented NBUF from expressing its views in a "public forum." The district court granted NBUF's motion for summary judgment. We conclude that the district court erred in finding a First Amendment violation on the record now before us. Accordingly, we reverse and remand.

The CFC is conducted annually at over 500 federal installations across the country. Selected government employees, known as "keymen," distribute pamphlets containing brief descriptions of particular charities to their fellow workers. Most donors contribute through payroll deductions. In addition to permitting its employees to organize and promote the CFC at federal offices, the government assumes the expense of collecting and distributing the funds. At the time of the events underlying this case, the Chairman of the Commission was responsible for supervising the campaign³  and had promulgated regulations under that authority.⁴ 

The regulations, consistent with the Executive Order authorizing the CFC,⁵  limit federal solicitation privileges to "national voluntary agencies."⁶  At the time of NBUF's application, several organizations concerned with health, emergency relief, and international service had satisfied the criteria for this status.⁷  These groups participate in the CFC in any community in which they are active and are represented on the CFC Advisory Council according to their field of endeavor.⁸  Local CFC organizers distribute to these groups all funds specifically designated for them by donors as well as a share of all undesignated funds.

Although the Executive Order and the regulations contemplate solicitation by agencies, like NBUF, that operate in the field of "welfare," no such organizations had been approved as "national voluntary agencies" when NBUF first approached the Commission. Local welfare charities nevertheless solicited in the CFC through a special arrangement with the United Way of America ("UWA"), appellant in this action. The regulations exempt from the normal requirements for participation all "local community chests or united funds which are members in good standing of, or are recognized by, the United Way of America."⁹  Welfare organizations can apply for membership in these private federations and, if accepted, be listed under the United Way "umbrella" in CFC pamphlets. As with national agencies, charities participating through this route receive all funds specifically earmarked for them directly from the local CFC organizers. Undesignated funds, however, are first divided among the national agencies and the United Ways. The United Ways then divide their share of undesignated funds among their respective members.

Thus, as long as no other welfare agencies satisfied the requirements for "national" status, the CFC delegated to UWA and its member agencies the responsibility for reviewing the legitimacy of all would-be participants in the field of welfare.¹⁰  This arrangement was apparently intended to permit CFC participation by local welfare agencies without imposing too great an administrative burden on federal officials. Judge Gasch explained the rationale in an opinion upholding the delegation to UWA:¹¹ 

Rather than have federal officials pass on every application of the thousands of local health and welfare agencies in communities across the nation, the Chairman has provided that such applications be screened by a community chest or united fund in every community where such an organization exists. To further facilitate efficient planning, he has provided that the chests or funds themselves be screened by United Way.

United Black Fund, Inc. v. Hampton, 352 F. Supp. 898, 904 (D.D.C. 1972).

In 1976, NBUF applied to the Commission for status as a "national voluntary agency" in the field of welfare. The Commission rejected NBUF's application on the grounds that appellee failed to satisfy the Commission's "national-in-scope" requirement¹²  and administrative expense limitation.¹³  In his letter denying the application, the Chairman of the Commission suggested that NBUF make arrangements to participate through local United Ways in communities with NBUF chapters. NBUF, believing that the United Ways do not satisfactorily meet the needs of minority communities, rejected this alternative.¹⁴ 

After the Chairman declined NBUF's request to reverse his decision, appellee brought this action in district court and appellant intervened. The court concluded that the denial of "national" status substantially impaired NBUF's First Amendment rights by prohibiting the organization's protected speech in a "public forum."¹⁵  Furthermore, the court decided that the "national-in-scope" and administrative expense requirements were not narrowly tailored to serve strong governmental interests.¹⁶  The court therefore held that the national status criteria, as applied to NBUF, violated the First Amendment and ordered the Commission to reconsider appellee's application.¹⁷  This appeal followed.¹⁸ II. DISCUSSION

Appellant contends that the district court erred both (i) in judging the Commission's decision according to strict First Amendment standards, and (ii) in concluding that the denial of "national" status substantially impaired NBUF's protected interests. We will consider these arguments in turn.

Charitable solicitation undoubtedly furthers interests protected by the First Amendment. The Supreme Court has noted that "solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and ... without solicitation the flow of such information and advocacy would likely cease." Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S. Ct. 826, 834, 63 L. Ed. 2d 73 (1980). Although Schaumburg involved door-to-door solicitation, and oral communication, the written message in the CFC pamphlets also advances protected speech and associational interests. See Heffron v. International Society for Krishna Consciousness, Inc. ("ISKCON"), --- U.S. ----, ----, 101 S. Ct. 2559, 2563, 69 L. Ed. 2d 298 (1981); Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 535, 100 S. Ct. 2326, 2331, 65 L. Ed. 2d 319 (1980).

Appellant nevertheless contends that any access to the CFC is "by executive grace" and therefore can be denied or abridged as long as the Commission's decisions are not "arbitrary or capricious." Reply Brief for Appellant at 12. In support, appellant relies on the so-called "non-public forum" cases in which the Supreme Court allowed government broad discretion to prohibit expressive activities that would interfere with the proper functions of public facilities.¹⁹  Appellee responds that the creation of the CFC converted the federal workplace into a "public forum," at least for purposes of charitable solicitation.

We find it unnecessary to determine whether or not the CFC constitutes a "public forum." Cases employing that term establish the limits of government's power to bar speech-related activities entirely from public places.²⁰  If permitting a particular form of expression would substantially disrupt the legitimate functions of a public facility, such expression may be prohibited.²¹  If, on the other hand, the property's functions, either by tradition²²  or design,²³  include serving as a platform for expressive activities, the government may not restrict speech on the premises except pursuant to reasonable time, place and manner regulations.

It may be that the impact of charitable solicitation on the proper functions of the federal workplace would justify the government in completely prohibiting such activity in its offices. With the creation of the CFC, however, the Commission has permitted some charities to engage in precisely the sort of "speech" that NBUF wishes to practice. The government thus cannot claim that appellee's desired "manner of expression is basically incompatible with the normal activity" of the federal workplace. See Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S. Ct. 2294, 2303, 33 L. Ed. 2d 222 (1972).

In contrast to the "public forum" cases, then, this case does not require us to evaluate the government's power to deny access to a public facility. Instead, we are faced with a claim that government has treated would-be speakers unequally. See Perry Local Educators' Association v. Hohlt, 652 F.2d 1286, at 1293 (7th Cir., 1981), slip op. at 13. Such a claim implicates the First Amendment's fundamental requirement that government observe total impartiality with respect to viewpoints expressed in the "marketplace of ideas."²⁴  The obligation of content-neutrality can be violated, of course, as much by "amplifying favored or neutral speech (as by) stifling the disfavored." Id. at 1294. The CFC clearly provides some charities with a substantial opportunity to publicize their views,²⁵  it thus poses the threat of government "amplifying" some ideas at the expense of others. See Police Department of Chicago v. Mosley, 408 U.S. 92, 96, 92 S. Ct. 2286, 2290, 33 L. Ed. 2d 212 (1972).

That possibility does not, however, compel strict scrutiny of every Commission decision. NBUF acknowledges that the Commission's regulations, on their face and as applied, are designed to serve content-neutral interests. See p. 176 supra. Regulations intended to serve interests unrelated to the suppression of speech are evaluated by considering the importance of the government's goals, the means it uses to achieve the goals, and the incidental effect of the regulations on free speech. See United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968); Konigsberg v. State Bar of California, 366 U.S. 36, 50-51, 81 S. Ct. 997, 1006-1007, 6 L. Ed. 2d 105 (1961). The level of justification demanded for a particular regulation depends on the degree to which the rule inhibits expression. Thus, a regulation that "leave(s) open ample alternative channels for communication of the information," Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct. 1817, 1830, 48 L. Ed. 2d 346 (1976), need only "reasonably" further legitimate interests. Such a rule is often labeled a "time, place and manner regulation." See, e.g., ISKCON, supra, --- U.S. at ----, 101 S. Ct. at 2563. A rule that substantially impairs the ability of certain groups to convey their message to a desired audience, on the other hand, effectively "abridges speech" even if it is not intended to curtail public debate. See, e.g., Martin v. Struthers, 319 U.S. 141, 145-46, 63 S. Ct. 862, 864, 87 L. Ed. 1313 (1943). Government must bear a far heavier burden of justification for such a rule. Its content-neutral interests must be "compelling" and it must demonstrate the absence of any "less drastic means" for achieving its purposes. E.g., Consolidated Edison Co. v. Public Service Commission, supra, 447 U.S. at 540, 100 S. Ct. at 2334; Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247, 252, 5 L. Ed. 2d 231 (1960). See also Metromedia, Inc. v. City of San Diego, --- U.S. ----, ----, 101 S. Ct. 2882, 2901, 69 L. Ed. 2d 800 (1981) (Brennan, J., concurring in the judgment). See generally L. Tribe, American Constitutional Law § 12-20 at 683-87 (1978).

Thus, constitutional review of the "national" status rules must begin by considering the impact of the Commission's decision on NBUF's ability to communicate its message. We turn to a review of the district court's conclusions on that question.B. "National" Status and NBUF's Protected Interests

NBUF contends that the denial of "national" status substantially impaired its ability to convey its charitable message to federal employees. The district court agreed, concluding that participation through a local United Way offered an inadequate alternative.²⁶  Appellant, in contrast, contends that NBUF was merely directed to "another entrance" to the CFC through which it could have engaged in its desired "speech" without inhibition.

Had NBUF solicited through local United Ways, it would apparently have had access to the same audience.²⁷  And although the context may give meaning to the expression, see Tinker v. Des Moines School District, 393 U.S. 503, 513, 89 S. Ct. 733, 740, 21 L. Ed. 2d 731 (1969), appellee did not show that its pamphlet message would convey a different meaning if it were listed with a local affiliate of UWA. Nevertheless, NBUF maintains that "differences in the philosophies of the United Way and NBUF" would require NBUF to "change its program" if it participated as a local agency. Brief for Appellee at 38.

While we are not insensitive to the importance of associational freedom, NBUF provided little evidence, and no specific prediction, of how its activities would be affected by affiliation with the local United Ways. Cf., Kusper v. Pontikes, 414 U.S. 51, 57-58, 94 S. Ct. 303, 307-308, 38 L. Ed. 2d 260 (1973). The district court accepted appellee's assertion that the United Ways emphasize charities that "fail to address and concern the basic and central economic and social programs ever present in a minority community."²⁸  However, the record before the court on cross motions for summary judgment contains little support for this conclusion.²⁹  Indeed, there is evidence that many local federations provide substantial funds to minority-oriented organizations and that agencies with goals similar to NBUF's have been able to participate through United Ways with no apparent impact on their message or their program.³⁰  The court could not properly award summary judgment without resolving this question of fact.

We therefore have no need to review the court's conclusion that the criteria for "national" status did not serve compelling state interests through the most narrowly-tailored means.³¹  The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.

So ordered.