Devine v. NAACP Legal Defense Fund Brief for the Respondents
Public Court Documents
January 21, 1985

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Brief Collection, LDF Court Filings. Devine v. NAACP Legal Defense Fund Brief for the Respondents, 1985. bafc76c6-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3e0ab467-15d8-4472-b0f3-7f0918a9eaf3/devine-v-naacp-legal-defense-fund-brief-for-the-respondents. Accessed July 13, 2025.
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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”).