Devine v. NAACP Legal Defense Fund Brief for the Respondents

    No. 84-312

In The

B>uprimu> (Em irl nf %  In itp ii States
October Term, 1984

Donald J. Devine, Director,
Office of Personnel Management,

Petitioner,
v.

NAACP Legal Defense and Educational 
Fund, Inc., et al.,

Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF FOR THE RESPONDENTS

J ulius LbVonne Chambers 
J ames M. Nabrit, III 
Charles Stephen  Ralston * 

NAACP Legal Defense and 
Educational F und, I nc. 

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

[Additional Attorneys on Inside Cover]

Stuart J. Land 
Leonard H. Becker 
Boris F eldman 

Arnold & Porter 
1200 New Hampshire 

Avenue, N.W. 
Washington, D.C. 20036 
(202) 872-6700

* Counsel of Record

W i l s o n  - E p e s  P r i n t i n g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D .C . a o o o s



Walter B. Slocombe 
Geoffrey J. Vjtt 

Caplin &  Drysdale 
One Thomas Circle, N.W. 
Washington, D.C. 20005 
(202) 862-5071

M. Carolyn Cox 
Wilmer, Cutler &  P ickering 
1666 K Street, N.W. 
Washington, D.C. 20006 
(202) 872-6000

Douglas B. J ordan 
Wiley & Rein 
1776 K Street, N.W. 
Washington, D.C. 20006 
(202) 429-7291

Attorneys for

William L. Robinson 
Norman J. Chachkin  

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

J orge L. Batista 
Robert L. Becker 

Puerto Rigan Legal Defense 
and Education F und, Inc. 

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-3360

the Respondents



Whether the government violated the First Amend­
ment when it expelled certain charities from the Com­
bined Federal Campaign because they provide health and 
welfare services by engaging in litigation.

QUESTION PRESENTED

(i)



TABLE OF CONTENTS

QUESTION PRESENTED ........  (i)

TABLE OF AUTHORITIES...................    (v)

COUNTER-STATEMENT OF THE CASE .................  2
1. Creation of the Combined Federal Campaign—. 2

2. Solicitation in the Federal Workplace Through
the CFG ........................................................... 4

3. Designated Versus Undesignated Contributions.. 6

4. Participation in the CFG by Legal Defense
F u n d s.......................................................................  7

5. Expulsion of Legal Defense Funds from the
Campaign .......    9

6. The Litigation Below............................................  12

SUMMARY OF ARGUMENT .......................................  14

ARGUMENT ....      17

THE EXPULSION OF LEGAL DEFENSE 
FUNDS FROM THE CFG VIOLATES THE 
FIRST AMENDMENT..... ................ .......................... 17

A. The First Amendment Protects the Right of
Charitable Solicitation .............  17

B. The Judgment Below Should Be Affirmed Irre­
spective of Whether the CFC Is a Limited Pub­
lic Forum or a Nonpublic Forum .........................  19

C. To Survive F irst Amendment Scrutiny, the De­
nial of Access to a Nonpublic Forum Must Be 
Reasonable.......................    22

D. Participation by Legal Defense Funds Is Not
Incompatible with the Forum .............................  25

Page

(iii)



1. Compatibility with the Federal Workplace.- 25
2. Compatibility with the Purposes of the CFG.. 26

E. Petitioner’s Asserted Justifications for Expel­
ling Legal Defense Funds Are Unreasonable.....  32
1. Controversy........... ................       33

a, Factual Inadequacy  ..............    33
b. Legal Inadequacy.......... ............................  36

2. N eutrality..........................................  39
3. Inundation ..................................................... 41

F. No Adequate Alternative Means of Solicitation
Are Available to the Excluded Organizations.....  43

CONCLUSION ........ ............ ................ ........ ........................  45

iv

TABLE OF CONTENTS—Continued
Page



V

TABLE OF AUTHORITIES
Cases Page

Adderley V. Florida, 385 U.S. 39 (1966) ................ 20
Bolger V. Youngs Drug Products Cory., 103 S. Ct.

2875 (1983) ........................... ............ .................... 36,38
Breard v. Alexandria, 341 U.S. 622 (1951) ..........  17
Cantwell v. Connecticut, 310 U.S. 296 (1940)........  17
Clark V. Community for Creative Non-Violence,

104 S. Ct. 3065 (1984) ............................... ........ . 21
Coates V. City of Cincinnati, 402 U.S. 611 (1971).. 36
Consolidated Edison Co. of New York, Inc. V. Pub­

lic Service Commission, 447 U.S. 530 (1980).... 37,38
Cox v. Louisiana, 379 U.S. 536 (1965) ____ _____  36
F.C.C. V. League of Women Voters, 104 S. Ct. 3106

(1984) ....... ............ ........ .... .......... .................... 19,38,41
Greer v. Spock, 424 U.S. 828 (1976).... ... ....20, 22, 23, 25
Hannegan v. Esquire, Inc., 327 U.S. 146 (1946).... 19
Healy V. James, 408 U.S, 169 (1972) .......... ............  45
Heffron v. International Society for Krishna Con­

sciousness, Inc., 452 U.S. 640 (1981) ..... ..... .....  17,42
Hynes V. Mayor of Oradell, 425 U.S. 610 (1976).... 17
Jamison v. Texas, 318 U.S. 413 (1943)..................  17
Jones V. North Carolina Prisoners’ Labor Union,

Inc., 433 U.S. 119 (1977) ........................... 20, 22, 23, 24
Largent v. Texas, 318 U.S. 418 (1943)........ .......... 17
Lehman V. City of Shaker Heights, 418 U.S. 300

(1974) ............. ............................................... .......  22,23
Lovell V. City of Griffin, 303 U.S. 444 (1938) .........  17
Martin v. City of Struthers, 319 U.S. 141 (1943).. 17
McDonald v. Board of Election Commissioners,

394 U.S. 802; (1969) ..................... ....... .................  24
Minnesota V. Clover Leaf Creamery Co., 449 U.S.

456 (1981) ........ ................... ....... ........ ................  24
Murdock V. Pennsylvania, 319 U.S. 105 (1943).... 17
NAACP  V. Button, 371 U.S. 415 (1963)..... ...... 14, 27, 29
NAACP Legal Defense & Educational Fund, Inc.

V. Campbell, 504 F. Supp. 1365 (D.D.C. 1981)....7, 8,18,
21, 27

NAACP Legal Defense & Educational Fund, Inc. 
V. Devine, 560 F. Supp. 667 (D.D.C. 1983)....... 6



National Black United Fund, Inc. v. Campbell, 494 
F. Supp. 748 (D.D.C. 1980), rev’d on other
grounds, 667 F.2d 173 (D.C. Cir. 1981) ........... . 21, 22

National Black United Fund, Inc. V. Devine, 667
F.2d 173 (D.C. Cir. 1981) ................................ .4,18,21

Pell V. Procunier, 417 U.S. 817 (1974) ..................  23
Perry Education Association V. Perry Local Edu­

cators’ Association, 460 U.S. 37 (1983) ....... ..19, 20, 22,
24,44

Regan V. Taxation With Representation, 461 U.S.
540 (1983) .............................................................  18,24

Regan V. Time, Inc., 104 S. Ct. 3262 (1984)___  20,21
Schneider V. State, 308 U.S. 147 (1939)  ..........  17
Secretary of State V. Joseph H. Munson Co., 104

S. Ct. 2839 (1984).............................................. . 17,32
Securities Industry Association V. Board of Gov­

ernors of the Federal Reserve System, 104 S.
Ct. 2979 (1984) .................................. ...................  24

Southeastern Promotions, Ltd. V. Conrad, 420 U.S.
546 (1975) .................................. ............. .........  44

Street v. New York, 394 U.S. 576 (1969) ...............  36
Terminiello V. City of Chicago, 337 U.S. 1 (1949).. 37
Thomas V. Collins, 323 U.S. 516 (1945)..................  17
Tinker V. Des Moines Independent Community

School District, 393 U.S. 503 (1969) ..................  37
United States Postal Service V. Council of Green- 

burgh Civic Associations, 453 U.S. 114 (1981).. 19,22
Valentine V. Chrestensen, 316 U.S. 52 (1942)___  17
Village of Schaumburg V. Citizens for a Better En­

vironment, 444 U.S. 620 (1980) ....— 14, 17, 18, 31, 32
Widmar v. Vincent, 454 U.S. 263 (1981)......... ......  40, 41

Executive Orders
10,927 (March 18,1961) ....
12,353 (March 23,1982) ....
12,404 (February 10,1983)

Administrative Regidations and Materials
CFG Memorandum No. 83-15 (OPM Nov. 28,

1983) ..............................................................10,34,35,44

vi
TABLE OF AUTHORITIES—Continued

Page

3
9

4, 11



Fall 1983 Combined Federal Campaign Results

TABLE OF AUTHORITIES—Continued
Page

(OPM Oct 15, 1984) ............... ..................... -34, 35, 44
5 C.F.R. § 950.101(a) (3) (vii) (1983) ......... .........  9
5C.F.R. Part 950 (1984)

§ 950.101(a) (1) (i) (H) ...... ........................ . 12, 29
§ 950.101 (a) (1) (v) (C) ----------- ---------------  32
§ 950.101(a) (2) ................... .............................  32
§ 950.211(h) ........... .............., ......... ..................- 6
§950.311 ....................... -...........-------------------  4
§ 950.403(c) ------- ---- -----------------------------  5
§950.407 ....................... -....................................  5
§ 950.509 (g) ................... ............................. ...... 6
§ 950.513(a) ______ ______ ______ _____ -....... 6
§ 950.519 (b) ... .......... ........................ ............. - 44
§ 950.521 ................ ............................................  43
§950.521 (a) .......... ................................ ...........  5
§ 950.521(e) (2) (i) .......... ...................... -........  5
§950.523 ................. - ........ - ..........-.... -............ - 44

49 Fed. Reg. 32,735-53 (1984)............. ................... - 6, 13

Miscellaneous
Brief for the United States as Amicus Curiae in 

Board of Trustees of the Village of Scarsdale V.
McCreary, No. 84-277 ___________ ____ _____  40

Combined Federal Campaign: Hearings Before 
the Sub comm, on Civil Service of the House 
Comm, on Post Office <& Civil Service, 96th 
Cong., 1st Sess. (1979) ...... ............................. ..7,19,30

Executive Orders 12358 and 12404. As They Regu­
late the Combined Federal Campaign: Hearing 
Before a Subcomm. of the House Comm, on Gov­
ernment Operations (Part I) 98th Cong., 1st
Sess. (1983) ........ ..................... ....................... ..11, 28, 42

IRS Statistics of Income Bulletin No. 2 (Fall
1981) .................................... ........... ........... ........... 43

Manual on Fund-Raising Within the Federal Serv­
ice (February 1973 ed.) 3,4



In  The

g>uj.tn>m? (ta r t  of %  Uniteft ta lr a
October Term, 1984

No. 84-312

Donald J. Devine, Director,
Office of Personnel Management,

Petitioner, v. ’
NAACP Legal Defense and Educational 

Fund, Inc., et al,
Respondents,

On Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF FOR THE RESPONDENTS

The respondents are charities that provide health and 
welfare services. Although petitioner Devine refers to 
them as “legal advocacy groups,” the respondents do not 
engage in (and are barred from engaging in) any par­
tisan or political activities. They engage in little or no 
lobbying. Instead, they engage primarily in litigation 
and educational activities relating to a variety of civil 
rights and environmental concerns.

Petitioner did not dispute below—and does not now 
appear to dispute—that respondents serve health and wel­
fare purposes. He argues only that their choice of means



2

to achieve their purposes justifies their expulsion from 
the Combined Federal Campaign (“CFC” ). The sole is­
sue in this case is whether exclusion on that basis passes 
constitutional muster.

COUNTER-STATEMENT OF THE CASE

1. Creation of the Combined Federal Campaign
The Combined Federal Campaign was established by 

President Kennedy in 1961 to regulate what had become 
a significant source of disruption in federal offices: fre­
quent workplace solicitations by charitable organizations. 
As petitioner Devine acknowledges, “ [p] rior to [1961], 
charities conducted appeals in a variety of ways in Fed­
eral installations around the world.” (J.A. 308.) The 
large number of separate and uncoordinated appeals that 
occurred each year had created “an increasingly chaotic 
situation in Federal offices” and “an intolerable adminis­
trative burden for Federal officials,” (J.A. 71, 103.)

Another concern created by unregulated solicitation 
prior to 1961 was the appearance of government fa­
voritism toward particular charitable organizations:

“Voluntary [charitable] agencies . . . did [not] 
appreciate the fact that some charities seemed to 
have the support of Federal management, while other 
charities were allowed, at most, to collect passively 
by the placement of an unattended contribution jar 
in an obscure corner of a lunchroom.” (J.A. 309.)

Accordingly, President Kennedy established the CFC 
in 1961 “to limit the number of campaigns and to insure 
truly voluntary giving by Federal personnel.” (J.A. 72, 
103.) In place of the multitude of individual appeals 
then being made, President Kennedy directed that chari­
ties be permitted to solicit in the federal workplace 
“through a single, annual drive combining all participat­
ing agencies.” (J.A. 309.)



3

President Kennedy’s Executive Order 10,927 described 
the purpose of the CFC as follows:

“ [to provide] arrangements for such national volun­
tary 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.”

The Order spoke of solicitation by charities, not by the 
government. It made no mention of “traditional” chari­
ties, nor did it suggest that government officials would 
decide which charities were deserving of employee con­
tributions. Prather, it focused entirely on procedural 
regularization of the solicitation process.1

In 1963, the Civil Service Commission implemented 
Executive Order 10,927 by promulgating the Manual on 
Fund-Raising Within the Federal Service (the “Man­
ual” ). The Manual specified that the CFC would be open 
to “nonprofit, tax-exempt agencies having specific func­
tions in the fields of health, welfare or recreational serv­
ices, or in the provision of international services . . . .” 
The only program requirements imposed by the Manual 
were the following:

“An active and necessary program with particular 
regard to the welfare of the public and the persons 
served; evidence of consultation and cooperation with 
established agencies in the same or related fields; 
and efficient operations.” 2

1 E.O. 10,927 (March 18, 1961), reprinted in  Respondents’ Ap­
pendix (“Resp. App.”) at la-2a.

2 Manual on Fund-Raising Within the Federal Service §§5.21, 
5.31 (Feb. 1973 ed.). This 1973 edition of the Manual was a re­
print of the original 1963 version. See id. at iii. Counsel for re­
spondents have lodged a copy of this edition with the Clerk of the 
Court.

Petitioner has lodged with the Court the 1977 edition of the 
Manual, containing amendments through September 5, 1980. The



4

Like the Executive Order, the Manual contained no sug­
gestion that participation would be confined only to 
“traditional” or “noncontroversial” charities. Nor did 
the Manual indicate in any way that organizations that 
discharge their charitable functions by litigating on be­
half of others were considered “inappropriate” charities.3

2. Solicitation in the Federal Workplace Through the CFC
The stated purpose of the CFC under President Rea­

gan’s Executive Order 12,404 (as well as under its 
predecessors) is to provide a means for charities “to so­
licit contributions from Federal employees . . .  at their 
places of employment.” (Resp. App. 6a.) Since 1961, 
the CFG has been “the exclusive vehicle for on-the-job 
charitable solicitation” of federal employees.4 * A charity 
denied participation in the CFC may not solicit contribu­
tions in the federal workplace by any other means.® Nor, 
under the regulatory scheme at issue here, may federal

requirement in that edition that CFC participants provide “direct 
services to persons in the fields of health and welfare” (§ 5.21)—on 
which petitioner relies so heavily here—was not contained in the 
1963 Manual; it was added some time after the 1973 reprint.

3 As the district court found, “plaintiffs do fall within the limits 
of [the CFC] as it historically has existed. Executive Order 10927 
made no differentiation among charitable organizations on the basis 
of how they accomplish their objectives.” Pet. App. 90a.

4 National Black United Fund, Inc. V. Devine, 667 F.2d 173, 174- 
75 (D.C. Cir. 1981) (emphasis added). See Pet. App. 2a; Pet. Br. 
3-4, 25.

8 The United Black Fund of America and others incorrectly 
assert in their amicus brief that organizations excluded by the 
CFC “may nonetheless directly appeal in the workplace to federal 
employees for contributions to their respective organizations.” Br. 
at 6; see id. at 15. In reality, the regulations provide only that 
limited arrangements may be made for off-the-job solicitations on 
military institutions and at entrances to Federal buildings (“for 
example, the use of ‘poppies’ or other similar tokens by veterans 
organizations”). 5 C.F.R. § 950.311 (1984),



5

employees designate nonparticipating charities as recip­
ients of their contributions.

The CFG solicitation does not take the form of physical 
entry into the workplace by representatives of the par­
ticipating charities. Instead, a brochure describing the 
participants has been distributed to virtually all federal 
civilian and military employees. The brochure has in­
cluded a specific appeal from each participating charity, 
in the form of a 30-word statement identifying itself and 
describing Its activities. See 5 C.F.R. § 950.521(e) (2) (i) 
(1984). The charities themselves—not government offi­
cials—have prepared the 30-word statements.6 We have 
included in Respondents’ Appendix two examples of CFG 
brochures : one involving many participants and the other 
involving relatively few (Washington, D.C. and Honolulu, 
Hawaii). (Resp. App. 59a,-66a.)

Under the regulatory scheme at issue here, participa­
tion in the Campaign historically has involved a two- 
step annual application process. First, an organization 
that wishes to participate has had to apply to the Office 
of Personnel Management (“OPM” ) for certification of 
its national eligibility. See 5 C.F.R. § 950.407 (1984).7

6 Although petitioner states that government officials may edit a 
participant’s statement “if  it does not conform to the regulatory 
requirements,” he concedes that, in reality, the 30-word statements 
routinely are published in the form submitted by the participating 
charity. See Pet. Br. 27 & n.21. Contrary to petitioner’s suggestion 
that the CFG is conducted “largely at government expense” (Pet. 
Br. 3), all direct costs of the Campaign (including preparation of 
the brochure and other promotional materials) are borne by the 
participating charities. 5 C.F.R. § 950.521 (a) (1984). Petitioner 
introduced no evidence as to the indirect cost to the government of 
the time devoted by its employees to the CFC.

7 This entails, among other things, a showing that the entity is 
“organized on a national scale,” has earned “goodwill and accept­
ability throughout the United States,” and has “national scope” 
based on its provision of services, the sources of contribution 
support, and the national character of its campaign. 5 C.F.R. 
§ 950.403(c) (1984). The new CFC regulations adopted after the



6

Second, an organization deemed nationally eligible by 
OPM has had to apply separately to each of the 550 local 
Campaigns in which it wishes to participate. Id. 
§ 950.211(h).

3. Designated Versus Undesignated Contributions
Historically, federal employees have Contributed to the 

CFG in either of two ways. The employee may make a 
designated contribution, specifying which CFC partici­
pant shall receive the funds.18 Alternatively, the employee 
may make an undesignated contribution, which the or­
ganization responsible for administering the local Cam­
paign (the “Principal Combined Fund Organization” or 
“PCFO” ) may distribute to participating organizations 
that it deems appropriate. Id. § 905.509(g), .513(a).

The respondents and other legal defense funds receive 
only those CFC contributions that are specifically desig­
nated to go to them; they do not participate in the dis­
tribution of undesignated contributions.® Therefore, fed­
eral employees who do not want their contributions to 
aid a legal defense fund either may designate their con­
tributions to go to groups they prefer or may make 
undesignated contributions.110 8 9 10

decision below, 49 Fed. Reg. 32,735-53 (1984), eliminate the na­
tional eligibility process.

8 In recent years, the CFC has encouraged federal workers to 
make designated contributions. See 5 C.F.R. § 950.513 (a) (1984) ; 
J.A. 84-87.

9 See Pet. App. 12a-13a, 31a, 89a, 95a; Pet. Br. 12 n.12. The 
distribution of undesignated funds is not at issue in this case. 
See generally NAACP Legal Defense & Educ. Fund, Inc. V. Devine, 
560 F. Supp. 667 (D.D.C. 1983).

10 Petitioner Devine has explained that this designation option 
has enabled employees opposed to the activities of particular chari­
ties to ensure that none of their contributions would go to such 
groups: “Most workers still contributed to the [Fall 1982] cam­
paign, but earmarked their donations for specific charities, thereby



7

Thus, if the decision below is affirmed, legal defense 
funds that participate in the CFC will continue to receive 
only those contributions that are specifically designated 
to go to them by contributing federal employees.

4. Participation in the CFC by Legal Defense Funds
In 1980, three organizations applied to the CFC that 

had not previously participated in it: the NAACP Legal 
Defense and Educational Fund, the Puerto Rican Legal 
Defense and Education Fund (both respondents here), 
and the NAACP Special Contribution Fund. The Spe­
cial Contribution Fund was allowed to participate in the 
Campaign (as were legal aid societies). The other two 
organizations were excluded for the stated reason that, 
“while otherwise qualified, [they] do not provide 'direct 
services/ but rather serve as advocates for groups.” 11

The two excluded organizations brought suit challeng­
ing their exclusion and were ordered admitted to the 
Campaign. NAACP Legal Defense & Educational Fund, 
Inc. v. Campbell, 504 F. Supp. 1365 (D.D.C. 1981) 
(“NAACP-LDF 7” ). The district court concluded that 
“the government must meet First Amendment strictures

avoiding the possibility that their gifts would go to unwanted 
recipients.” J.A. 21.

11 The government’s avowed basis for admitting the Special Con­
tribution Fund, while excluding the other two groups, was that the 
latter two spent more than 50 percent of their budgets on litigation, 
while the Special Contribution Fund spent only 25 percent of its 
budget on such activity. See NAACP Legal Defense & Educ. 
Fund, Inc. v. Campbell, 504 F. Supp. 1365, 1366, 1367-68 n.3 (D.D.C. 
1981). Testimony of NAACP officials in 1979, however, made clear 
that much of the Special Contribution Fund’s resources are ex­
pended on litigation in opposition to segregation and employment 
discrimination. See Combined Federal Campaign: Hearings Before 
the Subcomm. on Civil Service of the House Comm, on Post Office 
& Civil Service, 96th Cong., 1st Sess. 384-86 (1979) (statement of 
Theodore M. Berry, General Counsel, NAACP) [hereinafter cited 
as “1979 Hearings”].



8

in its regulations concerning access to this channel of 
communication [the CFG], which is, in fact, the only 
channel by which organizations can appeal to govern­
ment employees at their workplace.” Id. at 1367. The 
court held that the “direct services” requirement imposed 
by the Manual on Fund-Raising was unconstitutionally 
vague and was inconsistent with Executive Order 10,927. 
Id. at 1367-68. The government did not appeal the dis­
trict court’s order directing the plaintiffs’ admission to 
the Campaign.

Following the district court’s decision in NAACP- 
LDF I, several legal defense funds (among them, five of 
the present respondents) applied for admission to the 
1982 Campaign (i.e., the charity drive occurring in the 
Fall of 1981). (J.A. 347.) Petitioner Devine stated
that he did not have time to bring the 1982 Campaign 
into conformity with the district court’s order by devel­
oping more precise eligibility standards, and he accord­
ingly admitted several of these organizations. (J.A. 56.) 
They thereafter applied, and were admitted, to a large 
number of local Campaigns.

Participation by legal defense funds did not harm the 
1982 Campaign. On the contrary, 1982 was a record 
year. Overall contributions rose by almost nine percent. 
The rate of participation among federal workers also 
increased by nine percent. (J.A. 430.)

Despite the unprecedented success of the 1982 Cam­
paign, petitioner Devine mounted his own campaign to 
persuade the President to expel legal defense funds from 
the CFG. In a memorandum to the Office of Management 
and Budget, petitioner proposed issuance of a new Execu­
tive Order expelling legal defense funds, on the theory 
that their activities “clearly conflict with the thrust of 
the President’s budget decisions.” (J.A. 71-82.)

The President rejected petitioner Devine’s proposal. 
On March 23, 1982, President Reagan issued Executive



9

Order 12,353, which defined eligibility for participation 
in the CFG in the same terms as had President Ken­
nedy’s Executive Order: “national voluntary health and 
welfare agencies and such other national voluntary agen­
cies as may be appropriate.” 18

Petitioner Devine implemented this Executive Order 
by issuing new CFC regulations that expressly permitted 
participation by legal defense funds.18 The Office of 
Personnel Management issued a press release on July 2, 
1982 praising the new regulations (in petitioner Devine’s 
words) for “ 'offer [ing] Federal employees a wide choice 
of charities to select, and . . . encouraging] them 
to make their contributions in a very personal way, 
by carefully selecting the individual charities they’d like 
to benefit.’ ” Petitioner Devine explained that the regula­
tions had been tailored to remove doubts as to “the eligi­
bility of legal defense, minority and women’s organiza­
tions,” because “ ‘OPM is persuaded that some of the ear­
lier [eligibility] criteria were overly restrictive . . . . ’ ” 
(J.A. 84-87.)

The Administration’s decision in 1982 to allow legal 
defense funds to remain in the Campaign was voluntary. 
The government could have complied with the ruling in 
NAACP-LDF I by issuing a more precise “direct serv­
ices” requirement. Instead, President Reagan considered 
petitioner Devine’s request for exclusion and rejected it.

5. Expulsion of Legal Defense Funds from the Campaign

In 1982, several legal defense funds in addition to 
those that had participated in the 1982 Campaign (in­
cluding the remaining respondents here) applied for en­
try into the 1983 Campaign. One of the new applicants 12 *

12 Executive Order 12,353, §1 (March 23, 1982), reprinted in 
Reap. App. 3a-5a.

1,8 5 C.F.R. § 950.101(a) (3) (vii) (1983), reprinted in  Resp. 
App. 9a.



10

was the National Right to Work Legal Defense Founda­
tion, which engages in litigation opposed to compulsory 
membership in labor unions. Various federal employees 
and labor unions wrote letters to OPM expressing hostil­
ity to the legal defense funds generally and, in particular, 
to the Right to Work Foundation. (J.A. 358, 365, 378.) 
Although a few labor unions threatened to boycott the 
CFC because of the Right to Work Foundation’s par­
ticipation, the AFL-CIO forbade its constituent groups 
to boycott the Campaign. Instead, it urged “all federal 
and postal employees to designate the agency or agencies 
that meet their definition of a true charity.” (J.A. 91- 
94.)

Notwithstanding the flurry occasioned by the Right to 
Work Foundation’s participation, the 1983 Campaign— 
which included more legal defense funds and more 
charities of other types than any prior Campaign—set 
a new record for charitable contributions. Total contribu­
tions increased by seven percent over 1982, and the rate 
of employee participation rose by three percentage 
points.14 * The most significant change occurred in the 
number of employees who designated their contributions 
to go to specific groups: the volume of such contributions 
as a percentage of the total rose by one-fourth in 1983, 
to 63 percent. (J.A. 430.)

The record also demonstrates that, when given the 
opportunity, federal employees have made substantial 
designated contributions to legal defense funds. During 
the 1982 and 1983 Campaigns, the NAACP Legal De­
fense and Educational Fund, for example, received over 
$525,000 in contributions from thousands of federal 
workers in over 130 localities. (J.A. 228, 234-35.) In 
1983 alone, legal defense funds received $350,000 just in 
the National Capital Area CFC, and an estimated $2 mil­
lion nationwide. (J.A. 51-52.)

14 See CFC Memorandum No. 83-15 (OPM Nov. 28, 1983), re­
printed in  Resp. App. 55a-57a.



11

Despite the success of the 1982 and 1983 Campaigns, 
petitioner Devine renewed his effort to expel legal defense 
funds from the CFG. In a February 2, 1983 memoran­
dum to the White House, petitioner again proposed a new 
Executive Order that would accomplish his objective. 
He emphasized the “problems” allegedly caused by the 
participation of “aggressive and controversial political 
and legal advocacy groups”—in particular, the Right to 
Work Foundation. He singled out respondents NAACP 
Legal Defense and Educational Fund and Sierra Club 
Legal Defense Fund as examples of organizations that 
would be expelled by the proposed Executive Order. 
(J.A. 102-10.)“

Petitioner Devine’s persistence finally yielded results. 
On February 10, 1983, President Reagan issued Execu­
tive Order 12,404. Section 1(b) of the Order effectively 
expelled all legal defense funds from the CFG by declar­
ing ineligible for participation any organizations that 
“seek to influence the outcomes of elections or the deter­
mination of public policy through political activity or ad­
vocacy, lobbying, or litigation on behalf of parties other 
than themselves.” 16 Organizations that provide “legal 
aid services” to needy individuals, on the other hand, 
were made eligible to participate in the CFG.17

16 In subsequent Congressional testimony, petitioner acknowl­
edged that “really just one or two or three groups have caused 
most of the controversy in the Campaign.” Again, he singled out 
union opposition to the Eight to Work Foundation. Executive 
Orders 12353 and 12 WA As They Regulate the Combined Federal 
Campaign: Hearing Before a Subcomm. of the House Comm, on 
Government Operations (Part I) , 98th Cong., 1st Sess. 177 (1983) 
(testimony of Donald Devine) [hereinafter cited as “1983 
Hearing”'].

16 E.O. 12,404, § 1 (b) (Feb. 10, 1983), reprinted in Resp. App. 
7a (emphasis added).

17 The regulations issued to implement Executive Order 12,404 
provide that eligible “voluntary charitable health and welfare 
agenc[ies]” include, inter alia, organizations providing “[l]egal



12

In a press release announcing the new Executive Or­
der, the Office of Personnel Management explained the 
Administration’s action as follows :

“Devine also acknowledged the fierce opposition of 
Federal employee organizations and labor unions to 
the recent past inclusion of advocacy groups in the 
CFG. . . . Devine added, ‘We asked the Federal 
workers to stay with the campaign and to give us 
one year to clean it up. They kept their part of the 
bargain, and now President Reagan has fulfilled our 
promise.’ ” (J.A. 21.)

6. The Litigation Below
Following the promulgation of Executive Order 12,404, 

the respondents filed suit alleging that their expulsion 
from the CFC violated their First Amendment right to 
engage in charitable solicitation. In the district court, 
petitioner Devine argued that expulsion of legal defense 
funds was necessary in order to avoid the “controversy” 
that he contended had surrounded their participation in 
the 1982 and 1983 Campaigns.1'8 The district court con- 18

aid services . . .  to needy, poor, and indigent individuals solely 
because of their inability to afford legal counsel and without a 
policy or practice of discrimination for or against the kind of cause, 
claim, or defense of the individual.” 5 C.F.R. § 950.101 (a) (1) (i) (H) 
(1984). Respondents contended in the district court that admitting 
legal aid organizations, while excluding legal defense funds, violated 
the equal protection clause. The district court did not reach the 
equal protection issue. It held that exclusion of legal defense funds 
from the receipt of designated contributions violated the First 
Amendment, and that their exclusion from the receipt of undesig­
nated funds was raised prematurely in that final regulations had 
not yet been issued. Pet. App. 95a.

18 Petitioner emphasized the “overwhelming public outcry against 
continued inclusion” of legal defense funds and maintained that 
Executive Order 12,404 was a “response to these concerns and 
threats.” See J.A. 345; Defendant’s Motion to Dismiss 12 (April 12, 
1983) ; Defendant’s Memorandum of Points and Authorities in 
Opposition to Plaintiffs’ Motion for Summary Judgment 13-18, 
46-47 (May 24, 1983).



13

eluded, however, that petitioner’s proffered justification 
was impermissible under the First Amendment. (Pet. 
App. 93a.) The government did not seek a stay of the 
district court’s order, and the respondents thereafter 
participated in the 1984 Campaign.119

In the court of appeals, petitioner Devine downplayed 
the “controversy” justification. Instead, he argued that 
the CFC constitutes a government “subsidy” that he may 
dispense as he sees fit, free of First Amendment scru­
tiny.19 20 The majority in the court of appeals rejected the 
“subsidy” rationale. (Pet. App. 14a-17a.) Even the dis­
senting judge declined to accept the “subsidy” justifica­
tion. (Id. at 45a n.l.) The court of appeals affirmed the 
district court’s judgment directing inclusion of the re­
spondents in the Campaign. A divided court denied re­
hearing en banc. (Id. at 80a-81a.) The present petition 
for certiorari followed.21

19 As we demonstrate below, the 1984 Campaign (held in the Fall 
of 1983) set a new record for total contributions. See page 34 
infra.

20 See Brief for Appellant 24-39 (Sept. 1983).
21 On August 16, 1984, after the court of appeals entered its 

order affirming the district court, petitioner Devine promulgated a 
new set of CFC regulations. 49 Fed. Reg. 32,735-53 (1984) (to be 
codified at 5 C.F.R. Part 950). The most significant of the changes 
effected by the new regulations was the elimination of the national 
eligibility process. The new regulations allow federal employees to 
specify as the recipient of their contributions any health and wel­
fare entity that qualifies for tax exemption under Section 501 (c) (3) 
of the Internal Revenue Code. See id. at 32,744 (to be codified at 
§ 950.211 (h )). As before, undesignated contributions are to be 
turned over to the local Principal Combined Fund Organization for 
distribution to local charities. Id. at 32,736, 32,743, 32,749-50 (to 
be codified at § 950.509(g), .513(a), .521 (e) (1) ( iv )). The new 
regulations also eliminate the CFC leaflet containing each partici­
pating organization’s 30-word statement. In its place, local Cam­
paigns may elect to distribute a list of charities that previously 
have participated in the CFC, and participating organizations may 
provide their own informational brochures for limited distribution 
to federal workers. Id. at 32,750 (to be codified at § 950.521 (b )).



14

SUMMARY OF ARGUMENT

The respondents are long-established, well-known legal 
defense funds that serve health and welfare objectives, 
in large part by means of litigation in the courts. They 
do not seek special status or favor before the government 
or in the Combined Federal Campaign. They seek only 
the same opportunity to solicit contributions as is ac­
corded charitable organizations that serve similar pur­
poses by means other than litigation. The respondents 
do not demand the right to maintain a physical presence 
in the federal workplace, or even to distribute their own 
fundraising materials, but merely to have their 30-word 
appeals included in the brochure circulated to federal 
employees through the CFC. The respondents ask only 
that federal employees who wish to support them be al­
lowed to do so by designating them as the beneficiaries 
of their CFC contributions.

This case does not involve a choice among charitable 
objectives. Both courts below correctly concluded—and 
petitioner has never disputed—that the legal defense 
funds expelled from the CFC provide health and welfare 
services to human beings, just as do the so-called “tradi­
tional” charities admitted to the CFC by petitioner 
Devine. The sole difference is that the respondents per­
form their services primarily by exercising their constitu­
tionally protected right to engage in litigation, rather 
than by other means (including litigation by legal aid 
societies, which petitioner deems acceptable). In Village 
of Schaumburg V. Citizens for a Better Environment, 
444 U.S. 620 (1980), this Court held that charities may 
not be denied the right to solicit contributions on the basis 
of how they spend the money they receive. Nor may ad­
verse government action be based upon the fact that re­
spondents vindicate their clients’ legal rights by recourse 
to the courts. See NAACP v. Button, 371 U.S. 415 
(1963). No matter how the applicable legal test is for­



15

mulated, petitioner Devine’s ongoing effort to purge the 
CFG of legal defense funds cannot be sustained.

We establish initially that restrictions upon participa­
tion in the CFC are subject to First Amendment scrutiny. 
This Court long has recognized that the First Amend­
ment protects the right of charitable solicitation. Peti­
tioner Devine’s attempt to evade constitutional scrutiny 
by asserting that “the amount of expressive activity by 
charities involved in the Campaign has always been quite 
minimal” and that the “First Amendment interests of 
groups that wish to participate are decidedly weak” (Pet. 
Br. 26, 28) must fail on the record in this case.

We next demonstrate that expulsion of legal defense
funds from the CFC violates the First Amendment, re­
gardless of what type of forum the CFG is deemed to be.
Participation in the Campaign by legal defense funds 
plainly is compatible both with the purposes of the CFC 
and with the government’s legitimate interest in main­
taining the federal workplace for its intended purposes. 
The courts below correctly found nothing in the record 
to support petitioner’s concern that participation by re­
spondents in the CFC would cause any disruption of 
either the Campaign or the workplace.

Petitioner Devine’s assertion that the basic purpose of 
the CFC is to enable the government to direct employees’ 
contributions to “traditional” charities, whose goals he 
deems more “worthwhile” than those of legal defense 
funds, distorts the basic function of the Campaign. The 
CFC historically has served as a “clearinghouse” or “pub­
licity and collection agent.” The use of “traditionality” 
as the litmus test for eligibility never has appeared in 
the Executive Orders or implementing regulations. More­
over, historically it has been the individual contributor, 
not the government, who has decided which charities are 
“worthy” of his contribution. Some federal employees 
prefer to help the needy by facilitating their access to



16

the judicial system rather than by other forms of assist­
ance, or to promote public health by seeking enforcement 
of pollution laws that prevent illness rather than treat­
ment to cure it. These employees should be free to des­
ignate their contributions accordingly.

Petitioner Devine’s specific objections to participation 
by legal defense funds are devoid of any factual support 
in the record. First, petitioner’s concern that legal de­
fense funds sparked “controversy” among some federal 
employees concededly involves only “one or two” partici­
pants—none of them respondents here. Moreover, the 
record amply demonstrates that even such “controversy” 
had no discernible impact on the federal workplace or the 
success of the CFG. In any event, this Court consistently 
has held that the government may not silence a speaker 
because others in the audience might find his views objec­
tionable. The First Amendment does not permit govern­
ment officials to decide whose message is too “controver­
sial” to be afforded access to a government-controlled 
medium of expression.

Second, petitioner Devine’s ostensible wish to maintain
the appearance of “neutrality” among competing chari­
ties does not justify the expulsion of legal defense funds. 
It is individual federal workers, not the government it­
self, who contribute to these organizations and should be 
able freely to choose among them. A simple disclaimer in 
the CFC brochure would satisfy petitioner’s professed 
concern.

Third, petitioner Devine’s apprehension that the CFC 
would be “inundated” by legal defense funds is illusory. 
By his own admission, the Executive Order would have 
excluded only a handful of such groups. Contrary to peti­
tioner’s present assertion, the courts below did not re­
quire the admission to the Campaign of all entities en­
titled to claim the charitable exemption provided by Sec­
tion 501(c) (3) of the Internal Revenue Code.



17

Finally, petitioner Devine’s assertion that alternative 
fundraising channels are available to legal defense funds 
misses the mark. The CFC is a particularly efficient, 
effective means of reaching federal employees. If the 
respondents are expelled from the CFC, they will be for­
bidden to solicit contributions in the federal workplace, 
for only through the CFC is such solicitation permitted. 
The alternatives proposed by petitioner are palpably defi­
cient. They do not constitute reasonable substitutes for 
the right to participate in the Campaign.

ARGUMENT

THE EXPULSION OF LEGAL DEFENSE FUNDS 
FROM THE CFC VIOLATES THE FIRST AMEND­
MENT

A. The First Amendment Protects the Right of Charita­
ble Solicitation

In numerous decisions, this Court has held that chari­
table solicitation is an activity protected by the First 
Amendment.22 For example, in Village of Schaumburg v. 
Citizens for a Better Environment, 444 U.S. 620 (1980), 
Justice White wrote for the Court:

“Soliciting financial support is undoubtedly subject 
to reasonable regulation but the latter must be un­
dertaken with due regard for the reality that solici­

22 See, e.g., Secretary of State  V. Joseph H. Munson Co., 104 
S. Ct. 28S9, 2849 (1984); Heffron v. International Soc’y for Krishna 
Consciousness, Inc., 452 U.S. 640, 647 (1981); Hynes v. Mayor of 
Oradell, 425 U.S. 610, 620 (1976) ; Breard v. Alexandria, 341 U.S. 
622, 641-42 (1951) ; Thomas V. Collins, 323 U.S. 516, 531 (1945) ; 
Martin v. City of Struthers, 319 U.S. 141, 143 (1943) ; Murdock v. 
Pennsylvania, 319 U.S. 105, 111 (1943); Largent v. Texas, 318 U.S. 
418, 422 (1943) ; Jamison V. Texas, 318 U.S. 413, 414 (1943) ; 
Valentine V. Chrestensen, 316 U.S. 52, 54 (1942) ; Cantwell v. 
Connecticut, 310 U.S. 296, 303-05 (1940) ; Schneider v. State, 308 
U.S. 147, 161 (1939); Lovell V. City of Griffin, 303 U.S. 444, 450 
(1938).



18

tation is characteristically intertwined with informa­
tive and perhaps persuasive speech seeking support 
for particular causes or for particular views on eco­
nomic, political, or social issues, and for the reality 
that without solicitation the flow of such information 
and advocacy would likely cease.”

Id. at 632.23
Petitioner seeks to distinguish participation in the CPC 

from charitable solicitation protected by the First 
Amendment. He asserts that “the amount of expressive 
activity by charities involved in the Campaign has always 
been quite minimal” and that the “First Amendment in­
terests of groups that wish to participate are decidedly 
weak.” (Pet. Br. 26, 28.) Petitioner does not, however, 
deny that the 80-word appeal in the CFG brochure—or 
the mere listing of a participant’s name—constitutes a 
protected form of expression. Moreover, petitioner ig­
nores this Court’s holding in Schaumburg that, apart 
from the communication that accompanies charitable 
solicitation, the solicitation itself is protected because of 
“the reality that without solicitation the flow of such 
information and advocacy would likely cease.” 444 U.S. 
at 632.24

23 In dealing with restrictions upon participation in the CFC, the 
lower courts consistently have recognized that such participation 
constitutes charitable solicitation protected by the First Amend­
ment. See, e.g., Pet. App. 14a; id. at 88a-89a; National Black 
United Fund, Inc. V. Devine, 667 F.2d 173, 178 (D.C. Cir. 1981); 
NAAC P Legal Defense & Educ. Fund, Inc. V. Campbell, 504 
F. Supp. 1365, 1366-67 (D.D.C. 1981).

24 In the court of appeals, petitioner Devine contended that this 
is not a First Amendment case, but a “government subsidy” case'— 
in effect, that the CFC is largess that the Administration may dis­
pense or withhold as it pleases. See Brief for Appellant 24-39 
(Sept. 1983) (relying upon Regan V. Taxation W ith Representa­
tion, 461 U.S. 540 (1983)). In this Court, petitioner appears to 
have abandoned the “subsidy” rationale.

In any event, the evidentiary record belies any claim that the 
CFC was established as a government “subsidy” program or—prior



19

B. The Judgment Below Should Be Affirmed Irrespective 
of Whether the CFC Is a Limited Public Forum or a 
Nonpublic Forum

In establishing an annual campaign during which par­
ticipating charities are permitted to solicit contributions 
from federal employees in the workplace, the govern­
ment has created a forum for the exercise of charities’ 
First Amendment right to solicit contributions. Peti­
tioner Devine argues that, for purposes of First Amend­
ment analysis, the forum is the federal workplace, rather 
than the CFG. (Pet. Br. 23.) As this Court has recog­
nized, however, it is the particular channel of communica­
tion—i.e., the designated medium of expression—that 
constitutes the forum for First Amendment purposes. 
See, e.g., Perry Education Association v. Perry Local 
Educators’ Association, 460 U.S. 37, 44 (1983) (inter­
school mail system and teacher mailboxes, rather than 
school buildings) ; United States Postal Service v. Council 
of Greenburgh Civic Associations, 453 U.S. 114, 132 
(1981) (mailbox approved for deposit of mails by the 
Postal Service).

In this case, the forum plainly is the CFC. Permitted 
expression takes place exclusively within the designated 
medium of Campaign expression: the brochure setting 
forth the charities’ 30-word statements. Respondents as­
sert no right to enter into the federal workplace or to

to petitioner Devine’s arrival—operated as one. Both of the courts 
below found to the contrary. See Pet. App. 15a, 93a-94a. Cf. 1979 
Hearings at 31 (statement of Alan K. Campbell, Director, OPM) 
(“Remember, we are talking about Federal employees’ money now, 
not tax money.”). Moreover, the court of appeals correctly held 
that the presence of an incidental element of subsidization would 
not relieve petitioner of First Amendment constraints. Pet. App. 
16a-17a. That conclusion is compelled by this Court’s recent decision 
in F.C.C. V. League of Women Voters, 104 S. Ct. 3106, 3128 (1984) 
(rejecting subsidization argument as basis for restrictions on First 
Amendment activity). See generally Hannegan v. Esquire, Inc., 
327 U.S. 146, 157-58 (1946).



20

engage in any form of expressive activity other than that 
permitted to Campaign participants—namely, the sub­
mission of their 30-word statements for inclusion in the 
brochure. Inclusion of their statements in a brochure 
that already contains like statements on behalf of sim­
ilarly situated charities involves none of the incompat­
ibility between expression and forum that formed the 
basis of the decisions cited by petitioner.25

Whether the forum is the CFC, as respondents suggest, 
or the federal workplace, as petitioner argues, all parties 
are in agreement that the forum is not a traditional pub­
lic forum, like a street or park, “which by long tradition 
or by government fiat [has] been devoted to assembly 
and debate.” Perry Education Association, 460 U.S. at 
45. Rather, the forum is a limited public forum, desig­
nated by the President since 1961 as the exclusive op­
portunity for health and welfare charities to solicit fed­
eral employees in the workplace for charitable con­
tributions.26 The district court so held (Pet. App. 89a-

25 Cf. Jones V. N orth Carolina Prisoners’ Labor Union, Inc., 438
U. S. 119 (1977) (entry sought into prison for purpose of conducting 
labor union m eetings); Adderley v. Florida, 385 U.S. 39 (1966) 
(entry sought into jail for purpose of conducting protest); Greer
V. Spock, 424 U.S. 828 (1976) (entry sought into m ilitary base for 
purpose of engaging in partisan political speech and distributing 
leaflets).

26 Although the government was not required to establish the 
CFC or otherwise to open up the federal workplace for charitable 
solicitation (and while the President arguably could terminate the 
CFC altogether), so long as the CFC is conducted, the government 
“is bound by the same standards as apply in a traditional public 
forum.” Perry Education Association, 460 U.S. at 46. Any 
content-based exclusion of health and welfare charities from the 
CFC must serve a compelling government interest and be nar­
rowly drawn to achieve that end. Id. at 45. Any time, place, and 
manner restrictions must be content-neutral, be narrowly drawn 
to serve a significant government interest, and leave open “ample” 
alternative channels of communication. Id. See also Regan V. Time,



91a), as has every other court that has considered the 
issue.'27

The court of appeals assumed, without deciding, that 
the CFC was a nonpublic forum, because it concluded 
that petitioner Devine’s effort to expel legal defense funds 
from the Campaign failed to satisfy even the “reason­
ableness” test applicable to exclusion from a nonpublic 
forum. Thus, it was unnecessary for the court of appeals 
to reach the question whether expulsion of legal defense 
funds comports with the more exacting standards govern­
ing restrictions upon access to a limited public forum.

Respondents will demonstrate below that petitioner’s 
expulsion of legal defense funds from the CFC does not 
satisfy even the “reasonableness” test applicable to exclu­
sion from a nonpublic forum. A fortiori, the expulsion 
does not serve any compelling governmental interest, as 
is required to sustain exclusion from a limited public 
forum. Accordingly, while respondents believe that the 
district court was correct in finding that the CFC is a 
limited public forum, this Court (like the court of ap­
peals) can answer the question presented without reach­
ing the issue whether the CFC is a limited public forum 
or a nonpublic forum.

Inc., 104 S. Ct. 3262, 3266-67 (1984); Clark V. Community for 
Creative Non-Violence, 104 S. Ct. 3065, 3069 (1984).

The government seeks to evade these standards by arguing that 
its policy of “selective access” among charitable organizations 
renders the CFC—which exists only as a channel for expressive 
activity—a nonpublic forum. See Pet. Br. 26. Were this true, 
the government could transform any limited public forum into a 
“nonpublic” one simply by gerrymandering the standards of access 
to exclude the groups it disfavors. The government would never 
need to show that its content-based exclusions were narrowly drawn 
to serve a compelling government interest; instead, it would only 
have to recite that the groups excluded were not “designated” for 
“selective access.”

27 See National Black United Fund, Inc. v. Devine, 667 F.2d 173, 
178 (D.C. Cir. 1981); NAACP-LDF I, 504 F. Supp. at 1367; No-

21



22

C. To Survive First Amendment Scrutiny, the Denial of 
Access to a Nonpublic Forum Must Be Reasonable

Even when government property constitutes a non­
public forum, the government may not exclude particular 
groups at will. The denial of access will be upheld only 
if it “is reasonable and not an effort to suppress expres­
sion merely because public officials oppose the speaker’s 
view.” Perry Education Association, 460 U.S. at 46.* 28

The crucial inquiry is whether the activity excluded 
from a nonpublic forum is fundamentally incompatible 
with the government property in question. In Perry, the 
State was permitted to regulate access to government 
property in order to “limi[t] a nonpublic forum to activ­
ities compatible with the intended purpose of the prop­
erty.” 460 U.S. at 49. See id. at 55 (“the State may 
draw distinctions which relate to the special purpose for 
which the property is used”). Similarly, in United States 
Postal Service v. Council of Greenburgh Civic Associa­
tions, 435 U.S. 114 (1981), the Court upheld the denial 
of access to letterboxes for the distribution of leaflets be­
cause “appellees’ First Amendment activities are wholly 
incompatible with the maintenance of a nationwide sys­
tem for the safe and efficient delivery of mail.” Id. at
130 n.6 (emphasis added). As Justice Powell explained 
in his concurring opinion in Greer v. Spock, 424 U.S. 828 
(1976) :

tional Black United Fund, Inc. V. Campbell, 494 F. Supp. 748, 755-56 
(D.D.C. 1980), rev’d on other grounds, 667 F.2d 173 (D.C. Cir. 
1981). Although these decisions did not use the precise words 
“limited public forum,” they described the CFG in equivalent terms.

28 The Court articulated the “reasonableness” requirement in 
numerous decisions that preceded Perry. See, e.g., United States 
Postal Serv. V. Council of Greenburgh Civic Ass’ns, 453 U.S. 114,
131 n.7 (1981); Jones V. North Carolina Prisoners’ Labor Union, 
Inc., 433 U.S. 119, 130 (1977); Lehman V. City of Shaker Heights, 
418 U.S. 300, 303-04 (1974) (plurality opinion). Cf. id. at 304 
(access restriction “must not be arbitrary, capricious or invidious”) .



23

“ [I]t is not sufficient that the area in which the 
right of expression is sought to be exercised be dedi­
cated to some purpose other than use as a ‘public 
forum/ or even that the primary business to be 
carried on in the area may be disturbed by the un­
popular viewpoint expressed. . . . Some basic incom­
patibility must be discerned between the communica­
tion and the primary activity of an area.”

Id. at 843 (emphasis added; citation omitted).
The Court’s decisions make clear that exclusion of 

particular groups requires more than just some differ­
ence from the included groups. There must be a basic 
conflict between the activities of the excluded groups and 
the activities normally conducted on the government 
property.

Petitioner seems to suggest that “deference” to public 
officials’ judgments of what is best for their agencies 
requires uncritical acceptance of any claims of incom­
patibility. (Pet. Br. 46.) But the “reasonableness” test 
is deferential, not toothless. In the nonpublic forum eases, 
this Court regularly has reviewed the government’s rea­
sons for denial of access to assess their merit.29 The 
Court has not blindly accepted unsupported government 
assertions of a supposed need to exclude expressive 
activity.30

29 See, e.g., Jones V. North Carolina Prisoners’ Labor Union, Inc., 
433 U.S. 119, 127 (1977) ; Pell V. Procunier, 417 U.S. 817, 827 
(1974).

30 In some of the nonpublic forum cases, the parties seeking 
access did not deny that the government restrictions at issue were 
reasonable. Instead, they argued that the restrictions failed to 
satisfy the strict scrutiny that would have applied had the property 
constituted a public forum. In those cases, therefore, the Court did 
not need to examine closely the reasonableness of the restrictions, 
once it concluded that the property was a nonpublic forum. See, 
e.g., Lehman V. City of Shaker Heights, 418 U.S. 300, 303-04 (1974) 
(plurality opinion).



24

Contrary to petitioner Devine’s assertion, this Court 
has not treated the reasonableness test as though it were 
fungible with the “rational basis” test applied in equal 
protection cases. [See Pet. Br. 45-46.) Under the latter 
test, the Court will uphold government action if it can 
conceive of a hypothetical rationale that would justify 
the action; the Court will not independently assess the 
validity of the factual predicates for the government’s 
decision.31 That approach differs from the reasonableness 
test, which involves independent judicial scrutiny of the 
evidentiary (as opposed to hypothetical) support for the 
government’s exclusionary actions. Petitioner concedes 
here that the Court’s use of the rational basis test in 
nonpublic forum cases has occurred “in the context of 
discussions of equal protection challenges to the access 
restrictions at issue.” (Pet. Br. 46 n.37.) By contrast, 
the First Amendment discussions in those cases applied 
the reasonableness test. See Perry Education Associa­
tion, 460 U.S. at 49-50; Jones v. North Carolina Prison­
ers’ Labor Union, Inc., 433 U.S. at 128-30.32

31 See, e.g., Regan V. Taxation W ith Representation, 461 U.S. 540, 
547-48 (1983); Minnesota V. Clover Leaf Creamery Co., 449 U.S. 
456, 461-64 (1981) ; McDonald v. Board of Election Comm’rs, 394 
U.S. 802, 809 (1969).

32 Especially probing review of a denial of access is appropriate 
when the government’s justification for that denial has shifted re­
peatedly. Such vacillation suggests that the ostensible justifications 
are post hoc rationalizations. See, e.g., Securities Indus. Ass’n  V. 
Board of Governors of the Federal Reserve Sys., 104 S. Ct. 2979, 
2983 (1984). In this case, the basis for petitioner Devine’s initial, 
unsuccessful effort to expel legal defense funds was their incom­
patibility, not with the CFG, but with the President’s budgetary 
priorities. The following year, the avowed impetus for Executive 
Order 12,404 was the desire to avoid “controversy” in the Cam­
paign, and it was on that ground that the government defended 
the exclusion in the district court. In the court of appeals, the 
justification shifted to the government’s professed wish to avoid 
“subsidizing” legal defense funds. See pages 8, 11-13, supra. In this 
Court, petitioner has shifted once again, now emphasizing the 
government’s asserted right to direct contributions to so-called



25

Petitioner Devine’s exclusionary action does not satisfy 
the reasonableness standard. Participation in the CFC 
by legal defense funds is entirely consonant with the 
functions of the federal workplace and with those of the 
Campaign itself. The attempted restriction of participa­
tion to so-called “traditional” charities represents an 
attempt to prevent federal workers from deciding which 
charities they wish to support through the CFC, imposing 
upon them instead petitioner’s perception of “worth­
while” charities.

D. Participation by Legal Defense Funds Is Not Incom­
patible with the Forum

The essence of the reasonableness test, in Justice Pow­
ell’s words, is whether there is “ [s]ome basic incompat­
ibility . . . between the communication and the primary 
activity of an area.” Greer v. Spock, 424 U.S. at 843 
(concurring opinion). Whether the forum here is viewed 
as the federal workplace or as the CFC itself, participa­
tion by legal defense funds is demonstrably compatible 
with it.

1. Compatibility with the Federal Workplace
Petitioner Devine insists that “ [i]t is the workplace, 

and not the Campaign,” that constitutes the relevant 
forum. (Pet. Br. 23-24 n.18.) Even if he is correct 
(contrary to the findings of both courts below), the focus 
of inquiry remains whether charitable solicitation by 
legal defense funds in the manner permitted by the CFC 
somehow is incompatible with the federal workplace. 
Petitioner cannot contend that charitable solicitation it­
self is incompatible with the federal workplace, for the 
purpose of the Campaign is to allow such solicitation. 
Instead, petitioner suggests that “expansion of the Cam-

“traditional” charities. See Pet. Br. 29-34. In these circumstances, 
as the court below observed, a reviewing- court must “be circum­
spect in evaluating conclusory statements by Government officials 
which do not comport with either the evidence in the record or com­
mon sense.” Pet. App. 23a.



26

paign beyond its traditional scope tends to create morale 
problems and to divert some federal employees from their 
normal duties.” {Id. at 39 n.31.)

Petitioner Devine points to no evidentiary support for 
this conclusory assertion. The court of appeals found no 
record evidence “to support the suggestion that work was 
disrupted when LDFs participated in the CFC in 1981 
and 1982 . . . (Pet. App. 32a n.16.) Absent any 
evidence that participation by legal defense funds had 
caused disruption of the workplace or would do so in the 
future, the court below was “unwilling to defer to the 
fanciful—and somewhat specious—speculations offered 
by the appellant.” {Id. at 32a (footnote omitted).)33

2. Compatibility with the Purposes of ike CFC

Petitioner Devine’s incompatibility argument focuses 
primarily upon the Campaign as the relevant forum. 
According to petitioner, the CFC is not a mere “clearing­
house” or “publicity and collection agent” for federal 
workers’ contributions. Rather, it is a platform for the 
government to “determin[e] the focus of the charitable 
drive it sponsors,” and an opportunity to direct employee 
contributions to “traditional charities” whose “goals” are 
deemed more “worthwhile” than those of legal defense 
funds. (Pet. Br. 32, 34-35, 48 n.39.)S4

83 Petitioner asserts that the controversy caused by participation 
of legal defense funds necessitated “investments of extraordinary 
time and effort by those involved in the Campaign.” Pet. Br. 39. 
The court of appeals correctly characterized this concern as “merely 
a post hoc rationalization for the exclusion of LDFs.” Pet. App. 
34a n.17. Moreover, petitioner has pointed to no evidence indicating 
that such “extraordinary” efforts interfered with the regular con­
duct of federal business. See id. Similarly, petitioner’s assertion 
that “expansion of the Campaign beyond its traditional scope tends 
to create morale problems,” Pet. Br. 39 n.31, is unsupported by 
the record. See Pet. App. 32a & n.16.

34 The category of “traditional” charities, which figures so promi­
nently in petitioner’s brief, is nowhere mentioned in the Executive



27

Petitioner’s declaration that legal defense funds are 
less “worthwhile” than “traditional” health and welfare 
charities is both inaccurate and an improper basis for 
exclusion. First, the record in this case is replete with 
evidence that the respondents do provide health and wel­
fare services; their litigation efforts have resulted in 
direct, tangible benefits to people all over the United 
States.36 Petitioner never has disputed any of this record 
evidence. Unlike the “traditional” charities favored by 
petitioner, however, the respondents pursue their objec­
tives by exercising the constitutional right to obtain 
judicial assistance in enforcing the laws that protect their 
clients. See NAACP v. Button, 371 U.S. 415, 429-31 
(1963) (“ [Ajbstract discussion is not the only species 
of communication which the Constitution protects; the 
First Amendment also protects vigorous advocacy, cer­
tainly of lawful ends, against governmental intrusion.” ). 
The Constitution does not permit petitioner to discrim­
inate against the respondents because they exercise this 
right.

Second, petitioner’s contention that “ [t]here has long 
been a general understanding” of the distinction between

Order or implementing regulations. In fact, nothing in the history 
of the Campaign has attempted to define eligibility in terms of 
whether a charity is “traditional” or “nontraditional.”

as See J.A. 115-16, 120-22, 152-65, 221-27, 241-44, 245, 248-49, 
251-54, 256-58, 259-60. Judge Geseil found in NAACP-LDF I  
that: “[L]awsuits by [the NAACP and Puerto Rican Legal De­
fense Funds] have provided millions of dollars in back pay and 
benefits, and invaluable other ‘services’ such as increased training 
opportunities, additional promotions, improved school programs, 
and better hospital facilities.” 504 F. Supp. at 1368. The court of 
appeals in this case observed that the respondents “share the traits 
that have traditionally been considered critical in determining 
eligibility for the CFC . . . .” Pet. App. 21a. It noted that the 
respondents’ litigation efforts served to enforce laws that “protect 
and aid the needy, as well as . . . protecting the health of society 
by promoting a clean environment.” Id. at 25a n.13.



28

“traditional charities” and “advocacy groups” (Pet. Br. 
31)—based upon the assertion that “ [t]he United Way 
and similar federated charities . . . have consistently lim­
ited their membership to traditional health and welfare 
charities and have excluded other groups, such as ad­
vocacy groups like respondents” (Pet. Br. 33)—is inac­
curate. Indeed, the United Way testimony relied upon by 
petitioner establishes the opposite proposition:

“Historically, the United Way movement has always 
supported advocacy services by agencies for the pur­
poses of furthering their health and welfare mis­
sions. From the beginning, United Ways helped 
fund settlement houses, family service agencies, pub­
lic health organizations, and prisoner aid societies 
which led the struggle for better sanitation, better 
treatment of homeless children and the aged, and 
more humane treatment of prisoners.
“A large part of United Ways’ own activities that 
now fall under the heading of planning began as 
community organization for health and welfare and 
involved advocacy from the start.” 38

Even a cursory review of organizations admitted to 
the United Way demonstrates that this umbrella orga­
nization regularly includes groups that litigate on behalf 
of selective “causes.” For example, the brochure for the 
1984 National Capital Area CFG lists among the United 
Way participants “University Legal Services,” which pro­
vides “legal services to low-income persons with housing 
problems, enabling them to maintain control of their 
housing.” (Resp. App. 61a.)

Not even direct participation in the CFG itself has 
been limited in the past to any sharply defined class of 
“traditional” charities. Over the years, the government

38 1983 Hearing at 250 (statement of Jack Moskowitz, Senior Vice 
President, United Way of America) (emphasis added).



29

voluntarily has included in the Campaign such entities 
as the World Wildlife Fund, the Wilderness Society, and 
the United States Olympic Committee, (J.A. 427-28.) 
Such organizations perform valuable functions; but it is 
impossible to discern any principled differences between 
them and the respondent charities, in terms of health and 
welfare services, that would justify inclusion of one group 
and exclusion of the other.®7 The term “traditional” thus 
seems to have little meaning except to describe the char­
ities of which petitioner approves.

Third, according to petitioner, it is not the fact that 
legal defense funds engage in litigation on behalf of 
others, as such, that renders them incompatible with the 
CFG. To the contrary, petitioner has declared that par­
ticipation in the Campaign by legal aid societies—which 
also litigate on behalf of others—is entirely appropriate. 
(J.A. 20.) Participation by such litigation organizations 
is acceptable to petitioner because they purportedly select 
their cases “without a policy or practice of discrimination 
for or against the kind of cause” involved in the lawsuit. 
5 C.F.R. § 950.101(a) (1) (i) (H) (1984). Yet this Court 
has held that litigation to advance a cause, far from 
being disreputable, is a constitutionally protected activity. 
See NAACP v. Button, 371 U.S. 415, 429-31 (1963).* 38

87 The government now dismisses inclusion of such environmental 
and recreational groups in the CFG either as a mistake (Pet. Br. 
49) or as justifiable if only petitioner’s lawyers had thought to 
include supporting material in the record {id. at n.40). These ex­
planations miss the point. However substantial the activities of 
such organizations, their voluntary admission to the CFC belies 
petitioner’s present contention that participation in the Campaign 
has been, and properly should be, limited to so-called “traditional” 
charities.

38 Contrary to the assumption in the regulations, many legal aid 
societies, operating under severe budgetary constraints, are selec­
tive in the categories of cases they prosecute or defend on behalf of



30

Above all, petitioner Devine’s characterization of the 
basic nature of the CFC is distorted. The Campaign was 
not designed to serve as a means for the government to 
direct donations to charities deemed “worthwhile” by 
government officials; nor was it created to promote what 
petitioner describes as “consensus” among government 
employees as to which charities are most deserving. Con­
trary to petitioner’s assertions, the Campaign historically 
has been a “clearinghouse” or “publicity and collection 
agent.” It is the individual contributors, not petitioner, 
who decide which charities are “worthwhile.” 89

Thus, there is no “incompatibility” between the pur­
poses of the Campaign and participation in it by legal 
defense funds. The only issue is whether federal em­
ployees who believe that legal defense funds will help 
the needy in an effective manner should be free to desig­
nate those funds as their beneficiaries. If, as petitioner 
Devine asserts, there is “a greater consensus that the 
goals of [traditional charities] are worthwhile” (Pet. Br. 
32), then employees who subscribe to that view may 
designate their contributions to other, more “traditional” 
charities of their choice, or they may simply make un­
designated contributions, secure in the knowledge that 
their donations will be distributed only among “tradi­
tional” charities. Employees who do not share this pur­
ported “consensus” should be allowed to designate par- * 30

their clients. In any event, petitioner never explains why selec­
tivity in litigation  on behalf of health and welfare interests is bad, 
while many other health and welfare groups are admitted to the 
Campaign even though they are selective in pursuing their chari­
table purposes (e.g., health research groups concerned only with 
certain illnesses).

30 See 1979 Hearings at 30-31 (statement of Alan K. Campbell, 
Director, OPM) (“Our role is a supervisory policy role in relation­
ship to what is essentially a decentralized money-raising effort 
[I]t is not for us to look internally as to how they allocate money 
voluntarily given by federal employees. Remember, we are talking 
about federal employees’ money now, not tax money.”) .



ticular iegal defense funds as their beneficiaries if they 
choose to do so.40

This Court rejected a similar attempt to restrain solici­
tation by certain charities based upon how they spend 
their revenue in Village of Schaumburg v. Citizens for 
a Better Environment, 444 U.S. 620 (1980). There the 
Village barred door-to-door charitable solicitation by 
organizations that did not use at least 75 percent of their 
receipts for “charitable purposes.” The Village reasoned 
that “any organization using more than 25 percent of 
its receipts on fundraising, salaries, and overhead is not 
a charitable, but a commercial, for-profit enterprise and 
that to permit it to represent itself as a charity is fraud­
ulent.” Id. at 636. But the Court refused to allow the 
Village to characterize such groups as noncharitable sim­
ply because the municipality disapproved of how they 
spent their receipts. “The Village, consistently with the 
First Amendment, may not label such groups ‘fraudulent’ 
and bar them from canvassing on the streets and house 
to house.” Id. at 637 (footnote omitted). Justice White, 
speaking for the Court, emphasized that the organizations 
in question “are considered to be nonprofit, charitable 
organizations under both federal and state law.” Id. at 
637 n.10. The Court declined the dissent’s invitation to 
articulate “how does one define a ‘charitable’ organiza­
tion,” id. at 644 (dissenting opinion). Likewise, the 
Court rejected the rationale that the prohibition was 
justified by “the community’s collective desire to bestow

40 Petitioner suggests that participation by legal defense funds is 
undesirable because a particular group’s efforts “might well be 
neutralized by those of another fund that supports an opposing 
view of where the public interest lies, so that no net ‘benefit’ would 
result from either group’s activities.” Pet. Br. 36 n.26. This newly 
advanced speculation is unsupported by the record and ignores the 
finding below that the respondents provide substantial health and 
welfare benefits to the public. This argument, which conveniently 
overlooks the social benefits that accrue from resolution of disputes 
through the judicial process, hardly justifies the respondents’ 
expulsion.



32

its largess upon organizations that are truly ‘charita­
ble/ ” id. at 645.

Just as in Schaumburg, where the Village sought to 
characterize as not “truly ‘charitable’ ” those “advocacy- 
oriented” organizations with whose spending patterns it 
disagreed, the government here has labeled respondents 
“nontraditional” because of the manner in which they 
serve the needy. Here, as in Schaumburg, the disfavored 
organizations are deemed charitable for all other pur­
poses by federal and state law. In Schaumburg, the 
Court refused to allow the Village to restrict contribu­
tions to “truly ‘charitable’ ” groups, instead “leaving to 
individual choice the decision whether to contribute to 
organizations that spend large amounts on salaries and 
administrative expenses.” Id. at 638. Here, too, the 
First Amendment requires that individual federal work­
ers be allowed to decide whether their CFC contributions 
should go to “traditional” or “nontraditional” charities.41

E. Petitioner’s Asserted Justifications for Expelling 
Legal Defense Funds Are Unreasonable

In addition to his preference for “traditional” chari­
ties, petitioner Devine asserts that expulsion of legal 
defense funds from the Campaign is necessary for three 
reasons: to remove “controversy” from the Campaign; 
to maintain government “neutrality” among competing 
advocacy groups; and to prevent “inundation” of the

41 The specific exclusionary mechanism employed here is reminis­
cent of the 25-percent limitation struck down in Schaumburg. The 
regulations implementing Executive Order 12,404 exclude any or­
ganization that expends more than 15 percent of its budget on 
litigation on behalf of “the causes or policy goals that it supports.” 
5 C.F.R. :§ 950.101(a) (1) (v) (C), .101(a)(2) (1984). Thus, a
group that engages in litigation may participate in the CFC if it 
spends 14.9 percent of its income on such activities, but not if it 
spends 15.1 percent. Such a quantitative limitation was most 
recently invalidated by this Court in Secretary of State  V. Joseph 
H. Munson Co., 104 S. Ct. 2839, 2854 (1984).



33

Campaign by too many participants. The evidence of 
record provides utterly no warrant for expelling legal 
defense funds from the Campaign on these grounds.

1. Controversy
The ostensible impetus for adoption of Executive Order 

12,404 was the controversy allegedly engendered by legal 
defense funds’ participation in the Campaign. Petitioner 
Devine’s memorandum to the White House proposing the 
Order emphasized this controversy,42 as did the OPM 
press release announcing the Order.43 In the district 
court, petitioner defended the Order primarily on the 
ground that exclusion was necessary to remove contro­
versy from the Campaign. See note 18 supra. In this 
Court, petitioner has downplayed, but not abandoned, the 
controversy justification. (Pet. Br. 36-41.) The contro­
versy rationale is both factually and legally insufficient 
to justify the expulsion.

a. Factual Inadequacy
As a factual matter, petitioner Devine grossly exag­

gerates the extent and impact of the controversy. The 
AFL-CIO, for example, directed its constituent organiza­
tions not to boycott the CFC. It assured its members that 
“no undesignated funds will go to [the Right to Work 
Foundation]” and urged workers “not to designate the

42 See J.A. 106 (justifying exclusion “[bjecause of the problems 
caused by the participation of aggressive and controversial political 
and legal advocacy groups”)* Cf. J.A. 269 (“the immediate genesis 
of the new executive order was the supposed ‘controversial’ nature 
of legal defense fund-type organizations”).

43 See J.A. 21 (“Devine also acknowledged the fierce opposition 
of Federal employee organizations and labor unions to the recent 
past inclusion of advocacy groups in the CFC. . . . Devine added, 
‘We asked the Federal workers to stay with the campaign and to 
give us one year to clean it up. They kept their part of the bargain, 
and now President Reagan has fulfilled our promise.’ ”).



[Foundation] as the recipient of any of their CFC con­
tributions.” (J.A. 91-93.)

More important, the alleged controversy has had no 
discernible impact upon the success of the Campaign. 
Contributions have increased substantially every year 
that legal defense funds have participated, as the follow­
ing chart demonstrates: 44

34

Campaign Year
Total

Contributions
Increase Over 
Previous Year

Designated
Funds

1981 (Fall 1980) $ 87,051,770 5.1% 45.9%
1982 (Fall 1981) 94,659,485 8.7 49.5
1983 (Fall 1982) 101,165,247 6.9 62.7
1984 (Fall 1983) 109,274,248 8.0 66.9

No legal defense funds participated in the 1981 Cam­
paign; several participated in the 1982 Campaign; and 
all of the respondents (as well as the National Right to 
Work Foundation) participated in the 1983 and 1984 
Campaigns. Petitioner’s assertions notwithstanding, par­
ticipation by legal defense funds has not hurt the CFC 
at all. The most significant change during these years, 
as the chart demonstrates, has been a dramatic increase 
in the ratio of designated to undesignated contributions. 
Many more federal employees have decided to specify 
which charities should receive their contributions.

Petitioner asserts that the rate of employee participa­
tion in the CFC declined between the 1982 and 1983 
Campaigns, and he attributes this to the controversy 
caused by legal defense funds’ participation in the CFC. 
(Pet. Br. 38.) That assertion is erroneous. Although the

44 The data in this chart for the 1981 Campaign are based upon an 
affidavit submitted by petitioner below, J.A. 430; for the 1982 and
1983 Campaigns, upon CFC Memorandum No. 83-15 (OPM Nov. 
28, 1983), reprinted in  Resp. App. 55a-57a; and for the 1983 and
1984 Campaigns, upon OPM tabulations for the 1984 (Fall 1983) 
Campaign, dated October 15, 1984. These tabulations are contained 
in a printout entitled “Fall 1983 Combined Federal Campaign Re­
sults” (Oct. 15, 1984) [hereinafter cited as “Fall 1983 Results”']. 
Counsel for respondents have lodged a copy of this document with 
the Clerk of the Court.



35

preliminary data contained in the record indicated a 
slight decline in participation (from 64.7 percent to 
63.2 percent), OPM’s final figures demonstrate that em­
ployee participation in the 1983 Campaign actually rose 
by three percentage points (to 67.65 percent).45 Thus, 
the “controversy” that allegedly infected the 1983 CFG 
did not diminish the total amount of contributions or 
the level of participation.

Moreover, despite the assertedly controversial character 
of legal defense funds, many federal employees have 
chosen to make contributions to them. The respondents 
have received substantial sums of money from the Cam­
paign, all in the form, of designated contributions. The 
organizations received about $350,000 from the 1983 
Campaign in the National Capital Area alone, and an 
estimated $2 million nationwide. During the 1982 and 
1983 Campaigns, the NAACP Legal Defense and Educa­
tional Fund received over $525,000 from thousands of 
donors in over 130 localities. Even the group at the center 
of the “controversy”—the Right to Work Foundation— 
received $30,000 in designated funds in the Washington, 
D.C. area alone. (J.A. 51-52, 228, 234-35.)46

45 See CFG Memorandum No. 83-15 (OPM Nov. 28, 1983), re­
printed in  Resp. App. 56a. We understand that, subsequent to that 
memorandum, OPM revised its method of calculating the participa­
tion rate by enlarging the universe of employees deemed eligible to 
participate. Thus, revised participation rates for the 1983 and later 
Campaigns cannot be compared to those for earlier Campaigns, as 
to which no such adjustment was made.

46 In the 1984 Campaign, the “National Service Agencies” (the 
administrative grouping that contains the legal defense funds, 
among other participants) received $8,222,000 in designated con­
tributions—a 17 percent increase over the 1983 Campaign. Eleven 
percent of all designated funds were donated to National Service 
Agencies. See Fall 1983 Results, Tables 2, 4.



36

b. Legal Inadequacy
As a matter of law, petitioner Devine’s exclusionary 

action could not properly be based upon eontroversiality, 
even if it were shown to exist. In effect, petitioner has 
declared that if a vocal group of federal employees or 
competing charities dislike a particular organization, they 
can force that organization out of the CFG, thereby pre­
venting other employees from directing their Campaign 
contributions to it. If the Director of OPM shares this 
dislike of the organization, or fears any public debate, 
then the disfavored charity will be branded “controver­
sial.” The reason for the protesters’ opposition to the 
targeted organization is irrelevant. Under petitioner’s 
rationale, if a group of employees protested participation 
by the NAACP Legal Defense and Educational Fund 
based on their dislike of blacks and other minorities, 
OPM lawfully could exclude the Fund from the CFG— 
not because OPM necessarily agreed with the protesters, 
but merely “to avoid controversy.” 47

This Court consistently has refused to allow the gov­
ernment to silence a controversial speaker in order to 
avoid offending or antagonizing a hostile audience.48 The

47 This is not an unrealistic hypothetical. One of the letters upon 
which petitioner relied in expelling legal defense funds warned 
against admitting “groups that stir up negative feelings because 
of religious . . .  affiliation.” J.A. 370-71.

48 See, e.g., Bolger V. Youngs Drug Prods. Cory., 103 S. Ct. 2875, 
2883 (1983) (“ ‘we have consistently held that the fact that pro­
tected speech may be offensive to some does not justify its sup­
pression’ ”) ; Coates V. City of Cincinnati, 402 U.S. 611, 615 (1971) 
(“Our decisions establish that mere public intolerance or animosity 
cannot be the basis for abridgment of these constitutional free­
doms”) ; Street V. New York, 394 U.S. 576, 592 (1969) (“It is 
firmly settled that under our Constitution the public expression of 
ideas may not be prohibited merely because the ideas are themselves 
offensive to some of their hearers”) ; Cox V. Louisiana, 379 U.S. 
536, 551 (1965) ( “ ‘constitutional rights may not be denied simply 
because of hostility to their assertion or exercise’ ”) ; Terminiello



37

Court articulated the rationale for these cases in Tinker 
v. Des Moines Independent Community School District, 
393 U.S. 503 (1969). There it invalidated a rule barring 
students from wearing antiwar armbands in school 
(plainly a wmpublic forum during class hours in at 
least certain respects). The school officials had sought 
to justify the ban on the basis of their “urgent wish to 
avoid the controversy which might result from the ex­
pression . . .  of opposition to this Nation’s part in the 
conflagration in Vietnam.” Id. at 510 (footnote omitted). 
The Court rejected that justification:

“ [I]n our system, undifferentiated fear or appre­
hension of disturbance is not enough to overcome the 
right to freedom of expression. Any departure from 
absolute regimentation may cause trouble. Any 
variation from the majority’s opinion may inspire 
fear. Any word spoken . . . that deviates from the 
views of another person may start an argument or 
cause a disturbance. But our Constitution says we 
must take this risk . . . ; and our history says that 
it is this sort of hazardous freedom—this kind of 
openness—that is the basis of our national strength 
and of the independence and vigor of Americans who 
grow up and live in this relatively permissive, often 
disputatious, society.”

Id. at 508-09.
More recently, the Court confronted the “controversy” 

justification in Consolidated Edison Co. of New York, Inc. 
v. Public Service Commission, 447 U.S. 530 (1980). 
There the Court overturned a ban on the insertion of 
statements on “controversial” subjects in the utility’s 
bills to its customers:

V. City of Chicago, 337 U.S. 1, 4 (1949) (“[A] function of free 
speech under our system of government is to invite dispute. It may 
indeed best serve its high purpose when it induces a condition of 
unrest, creates dissatisfaction with conditions as they are, or even 
stirs people to anger. Speech is often provocative and challenging.”).



38

“ [CJustomers who encounter an objectionable bill­
ing insert may ‘effectively avoid further bombard­
ment of their sensibilities simply by averting their 
eyes.’ . . . The customer . . . may escape exposure 
to objectionable material simply by transferring the 
bill insert from envelope to wastebasket.”

Id. at 542 (citation omitted;, footnote omitted). Accord, 
Bolger v. Youngs Drug Products Corp., 103 S. Ct. 2875, 
2883 (1983). Surely, the home of a utility’s customers, 
where the billing inserts are received and the utility’s 
message is heard, is as nonpublic as a place can be. But, 
petitioner’s argument notwithstanding, the nonpublic 
character of the homes in Consolidated Edison did not 
preclude application of the Court’s longstanding protec­
tion of First Amendment interests.49

Here, as in Consolidated Edison, simple remedies are 
available to any federal employee who may be offended 
by the participation of legal defense funds in the CFG: 
he may designate his contribution to go exclusively to 
groups he likes, as OPM actively encourages him to do 
(J.A. 84-86) ; or he may leave his contribution undesig­
nated, without fear that any portion of it will go to the 
groups he disfavors.

The increase in total donations in the 1983 CFC was 
accompanied by a 25 percent increase in the proportion 
of designated contributions. (J.A. 430.) In the OPM 
press release that accompanied Executive Order 12,404, 
petitioner Devine recognized the role played by desig­
nated contributions in defusing the purported hostility 
to legal defense funds:

“Devine also acknowledged the fierce opposition of 
Federal employee organizations and labor unions to

49 See also F.C.C. V. League of Women Voters, 104 S. Ct. 3106, 
3120 (1984) (invalidating congressional restriction of editorializing 
by noncommercial broadcasting stations on “ ‘controversial issues 
of public policy’ ”).



39

the recent past inclusion of advocacy groups in the 
CFC. ‘Sentiment favoring a wholesale boycott of the 
CFC was strong this last year/ he said, ‘but the for­
bearance of Federal workers was heartening. Most 
workers still contributed to the campaign, but ear­
marked their donations for specific charities, thereby 
avoiding the possibility that their gifts would go to 
unwanted recipients.’ ”

(J.A. 21 (emphasis added).)
Final recognition of the legal inadequacy of petitioner’s 

controversy justification comes from his own General 
Counsel, who acknowledged a few weeks before Execu­
tive Order 12,404 was adopted: “An organization which 
meets the published eligibility criteria cannot, under the 
First Amendment to the United States Constitution, be 
excluded from participation in the CFC simply because 
it is controversial.” (J.A. 432.)

2. Neutrality
Petitioner Devine next asserts that expulsion of legal 

defense funds is necessary “to preserve government 
neutrality among groups with competing public policy 
views.” He contends that admission of a particular orga­
nization “is unlikely to be perceived as a neutral act in 
view of the government’s active sponsorship of the Cam­
paign as a whole.” (Pet, Br. 43.)

Executive Order 12,404 does not preserve government 
neutrality: it destroys it. Prior to promulgation of the 
Executive Order, the government was in fact neutral 
among “groups with competing public policy views.” So 
long as would-be participants met the content-neutral 
national eligibility criteria, they could participate in the 
Campaign. It was the individual contributors, not the 
government, who chose among the competing charities. 
In expelling legal defense funds, however, petitioner has 
declared that “traditional” charities somehow are more 
“worthwhile” than organizations that serve health and



40

welfare purposes by resort to the judicial system. (Pet. 
Br. 32.) He has barred federal employees from designat­
ing their CFC contributions to go to legal defense funds, 
based upon his belief that such organizations are un­
worthy of support. This official preference for particular 
types of charities is the antithesis of neutrality.00

This Court rejected a much more plausible neutrality 
claim in Widmar v. Vincent, 454 U.S. 263 (1981). There 
one of the justifications for denying student religious 
groups access to university buildings was that such ac­
cess supposedly would confer an “imprimatur of state 
approval on religious sects or practices.” Id. at 274. 
The Court rejected that argument: “University students 
are, of course, young adults. They . . . should be able 
to appreciate that the University’s policy is one of neu­
trality toward religion.” Id .  at 274 n.14. Presumably 
federal workers are as able as college students to grasp 
the principle of official neutrality.61 50 51

50 Petitioner’s neutrality justification is especially ironic in light 
of his persistent opposition to participation in the Campaign by 
Planned Parenthood:

“Everyone knows where I [Director Devine] stand in regard 
to the kind of practices that Planned Parenthood does. You 
promote abortion; I think that’s detestible [sic]. I think in a 
just world you’d have nothing to do with a charitable drive.” 
Pet. App. SOa.

51 The government itself has recently rejected a similar neutrality 
argument in Brief of the United States as Amicus Curiae in Board 
of Trustees of the Village of Scarsdale V. McCreary, No. 84-277, 
at 13:

“To accept petitioners’ premise that religious (and other forms 
of controversial) symbolic speech must be excluded from public 
parks because of the danger that some observers may infer a 
government endorsement of the message would convulse modern 
First Amendment law. It would mean . . . that the only ideas 
that could be communicated on public land are orthodox ideas : 
those ‘wrapped in the shared and approving sentiments of 
the community.’ ”



41

To preserve both the appearance and the reality of gov­
ernment neutrality, petitioner Devine has at his disposal 
an option far more reasonable than the wholesale expul­
sion of legal defense funds: he can include in the CFG 
brochure as clear and strong a disclaimer of govern­
mental endorsement of participating organizations as he 
chooses.52 This Court recently approved such an ap­
proach in F.C.C. v. League of Women Voters, 104 S. Ct. 
3106 (1984). There the government sought to justify its 
prohibition of editorializing by noncommercial educa­
tional broadcast stations on the ground that it was neces­
sary to “ensur[e] that the audience . . . will not. be led 
to think that the broadcaster’s editorials reflect the offi­
cial view of the government.” Id at 3125. The Court 
rejected this justification, observing that Congress could 
have required a disclaimer stating that the editorial “does 
not in any way represent the views of the Federal Gov­
ernment.” Explained the Court:

“Such a disclaimer—similar to those often used in 
commercial and noncommercial programming of a 
controversial nature—would effectively and directly 
communicate to the audience that the editorial re­
flected only the views of the station rather than those 
of the government.”

Id. at 3125-26.53
3. Inundation

Petitioner Devine also contends that the decision below 
would lead to inundation of the CFC by so many groups 
that the Campaign could not continue to function. (Pet.

52 The district court found that a disclaimer “would be sufficient 
to convey the government’s desire not to endorse the making of 
contributions to any particular organization.” Pet. App. 94a.

53 See also Widmar V. Vincent, 454 U.S. 263, 274 n.14 (1981) 
(rejecting concern over appearance of nonneutrality, because “[t]he 
University’s student handbook already notes that the University’s 
name will not ‘be identified in any way with the aims, policies, pro­
grams, products, or opinions of any organization or its members’ ”).



42

Br. 16, 48 n.39.) Petitioner’s fear of inundation is illu­
sory in two respects.

First, the number of organizations expelled from the 
Campaign by Executive Order 12,404 is miniscule. Ac­
cording to petitioner Devine’s Congressional testimony:

“I do not suspect that many groups that are pres­
ently eligible in the Campaign would not be eligible 
under our proposal. . . . [Tjhere will be very little 
impact in terms of numbers on those eligible. . . . 
It is going to have an impact [on the number of 
charities], but in terms, let’s say, of 500 current 
participants in the Washington, D.C. area, we may 
be talking about ten or something like that; and in 
terms of percentage in [the Campaign], it would be 
very small.”

1983 Hearing at 176-77.
Second, contrary to petitioner Devine’s assertion (e.g., 

Pet. Br. 48. n.39), the judgments of the courts below 
do not require admission to the Campaign of all chari­
table organizations that qualify for a tax exemption 
under Section 501(c) (3) of the Internal Revenue Code. 
The court of appeals held only that because some legal 
defense funds do in fact perform health and welfare serv­
ices, their blanket exclusion from the CFC was improper. 
(Pet. App. 42a; see id. at 98a-99a.) Petitioner Devine 
remains free to impose reasonable restrictions on partici­
pation in the CFC, including, for example, the valid 
national eligibility criteria that he gratuitously aban­
doned after the court of appeals decision. Cf. Heffron v. 
International Society for Krishna Consciousness, Inc., 
452 U.S. 640, 648-49 (1981) (upholding content-neutral 
restrictions on number of organizations permitted to 
solicit).64 54

54 Even admission of all litigating groups would not inundate the 
CFC. Although petitioner is correct that the IRS lists some 300,000 
Section 501 (c) (3) charities, Pet. Br. 48 n.39, its most recent survey



43

F. No Adequate Alternative Means of Solicitation Are 
Available to the Excluded Organizations

Finally, petitioner Devine argues that the expulsion of 
legal defense funds from the Campaign should be upheld 
because “alternative channels of communication are avail­
able” to them. (Pet. Br. 44.) He suggests that the re­
spondents could “solid [t] contributions directly from 
federal workers outside the workplace,” for example by 
“direct mailings” or “fund-raising rallies.” (Id.) Such 
proposed alternatives are palpably inadequate substitutes 
for participation in the Campaign.

As petitioner acknowledges, “ [a] 11 organizations that 
wish to receive funds solicited in the federal workplace 
must do so within the framework of the Campaign.” 
(Pet. Br. 3-4.) All other charitable solicitation in the 
workplace is barred. Three features of the Campaign 
render it qualitatively superior to any alternative means 
of fundraising among federal workers.

First, the solicitation occurs as part of a coordinated, 
highly publicized, government-wide fundraising drive.* 65 
Every fall, the local Campaigns focus employee attention 
on contributing to participating charities. This results 
in a synergy that would be missing from any individual 
solicitation.

Second, the CFC is efficient. Because of the consoli­
dated fundraising effort, and the direct focus on an iden­
tifiable group (federal workers), the Campaign’s admin­
istrative costs (which are borne by participating orga­

of charities (based upon analysis of 1975 returns) reported that 
there were only 40 groups in the category of “litigation” other than 
legal aid. By contrast, over 30,000 groups come within the “tradi­
tional” health and welfare categories. See IR S  Statistics of Income 
Bulletin No. 2, Table 2, at 11-16 (Fall 1981).

65 See 5 C.F.R. § 950.521 (1984) (regulations governing campaign 
and publicity materials).



44

nizations56) are low—about four percent.57 The Cam­
paign enables participating organizations to minimize 
their fundraising expenses and thereby to maximize the 
use of contributions for their charitable activities.

Third, the CFG allows participating charities to receive 
their contributions through payroll deductions from con­
tributing employees:* 58 Rather than write a single check 
for a large amount, federal employees may donate by 
means of periodic deductions of smaller amounts. This 
is an important element in the CFC’s fundraising 
success.69

Petitioner Devine notes that in some cases this Court 
has pointed to the availability of alternative channels of 
communication as an element in denying access to a non­
public forum. (Pet. Br. 45.) But in such cases the alter­
native channels were reasonable substitutes. In Perry, 
for example, the union that was denied access to the 
school mailboxes nevertheless had ample alternative 
means of communicating with teachers—including in­
school bulletin boards and meeting facilities. 460 U.S. 
at 53. Here, by contrast, the proposed alternatives are 
so different from, and inferior to, participation in the 
Campaign that they do not constitute reasonable alterna­
tives. In such circumstances, this Court consistently has 
rejected the “alternative channels” argument.®0

s« See id. § 950.519 (b) (administrative costs must be deducted 
prior to distribution of contributions).

07 In the 1983 (Fall 1982) CFC, total costs for all the local Cam­
paigns were four percent of total receipts. CFC Memorandum No. 
83-15 (OPM Nov. 28, 1983), reprinted in  Resp. App. 57a.

S8 See 5 C.F.R. § 950.523 (1984) (authorizing payroll withhold­
ing).

69 Eighty-nine percent of all receipts in the 1984 CFC were con­
tributed through the payroll deduction process. See Fall 1983 Re­
sults, Table 3.

«o e.g,t Sotitheastern Promotions, Ltd. V. Conrad, 420 U.S. 
546, 556 (1975) (private theaters would not have been adequate



45

CONCLUSION
The judgment of the court of appeals should be

affirmed.
Respectfully submitted,

Stuart J. Land 
Leonard H. Becker 
Boris Feldman 

Arnold & Porter 
1200 New Hampshire 

Avenue, N.W.
Washington, D.C. 20036 
(202) 872-6700

Walter B. Slocombe 
Geoffrey J. Vitt 

Caplin & Drysdale 
One Thomas Circle, N.W. 
Washington, D.C. 20005 
(202) 862-5071

M. Carolyn Cox 
Wilmer, Cutler & Pickering 
1666 K Street, N.W. 
Washington, D.C. 20006 
(202) 872-6000

Douglas B. Jordan 
Wiley & Rein 
1776 K Street, N.W. 
Washington. D.C. 20006 
(202) 429-7291

Attorneys for 
* Counsel of Record

January 21,1985

Julius LeVonne Chambers 
James M. Nabrit, III 
Charles Stephen Ralston * 

NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

William L. Robinson 
Norman J. Chachkin 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

Jorge L. Batista 
Robert L. Becker 

Puerto Rican Legal Defense 
and Education Fund, Inc. 

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-3360

the Respondents

alternative to public theater from which plaintiff was excluded, 
“since none apparently had the seating capacity, acoustical fea­
tures, stage equipment, and electrical service that the show re­
quired”) ; Healy V. James, 408 U.S. 169, 183 (1972) (rejecting 
facilities outside campus as adequate alternative to campus meeting 
facilities for student groups, in light of “the practical realities”).