Unpublished Disposition, 894 F.2d 410 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 410 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Jeffrey PORTNOY, Defendant-Appellant.

No. 88-5454.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 12, 1990.* Decided Jan. 19, 1990.

Before CHAMBERS, FARRIS and NOONAN, Circuit Judges.


Jeffrey Portnoy appeals his conviction under 41 C.F.R. Sec. 101-20.305. Portnoy's conduct falls within the coverage of this regulation, which prohibits:

Any loitering, disorderly conduct, or other conduct on [GSA] property which creates loud or unusual noise or a nuisance; ... which otherwise impedes or disrupts the performance of official duties by Government employees; or which prevents the general public from obtaining the administrative services provided on the property in a timely manner....

Portnoy's yelling and confrontational actions were loud and unusual. They affected a judge's performance of his official duties. The conduct was intended to be disruptive and it was. Contrary to Portnoy's claim, his conduct falls within the terms of the regulation. We do not decide whether his conduct also fell within the proscription of 28 C.F.R. Sec. 68.32 (contempt powers of administrative judge). The government may properly use 41 C.F.R. Sec. 101-20.305.

Portnoy's prosecution under section 101-20.305 did not violate his first amendment rights. The government is empowered to regulate conduct even if there is impact on expression, if the impingement is within constitutional limits. Section 101-20.305 is directed at conduct; to the extent it reaches speech, it is a content-neutral regulation, reasonable in time, place, and manner. The government can restrict " [t]he right to use a public place for expressive activity" through "reasonable time, place and manner regulations [which] may be necessary to further significant government interests." Grayned v. City of Rockford, 408 U.S. 104, 115 (1972). Ensuring the efficient and consistent operation of its immigration courts is a significant government interest, which is promoted by section 101-20.305. The regulation has been held constitutional. See United States v. Bader, 698 F.2d 553 (1st Cir. 1983); United States v. Occhino, 629 F.2d 561 (8th Cir. 1980), cert. denied, 450 U.S. 968 (1981). See also United States v. Gilbert, 720 F. Supp. 1554 (N.D. Ga. 1989).

Further, the courtroom is a nonpublic forum, where the government has power to limit and regulate speech and has consistently regulated the proper form of discussion and expression.

The guarantees of the First Amendment have never meant "that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please." The state, no less than a private owner of property, has the power to preserve property under its control for the use to which it is lawfully dedicated.

Greer v. Spock, 424 U.S. 828, 836-837 (1976) (citations omitted) (upholding prohibition against political speeches on nonpublic forum military installation). See also Adderley v. Florida, 385 U.S. 39 (1966) (upholding regulation of speech at jail site).

Nor is the regulation vague. It is closely focused to protect the government interests. The language of the regulation is easily understood and "give [s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. [It is not a] [v]ague law [that] may trap the innocent by not providing fair warning." Grayned, 408 U.S. at 108. Portnoy knew that his conduct would be disorderly and disruptive. Cf. United States v. Sachs, 679 F.2d 1015 (1st Cir. 1982).

The regulation is directed at specific conduct that "impedes or disrupts the performance of official duties by Government employees." It is not overbroad. See Broadrick v. Oklahoma, 413 U.S. 601, 614-15 (1973).



The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App. 34(a) and Ninth Circuit rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3