The opinion of the court was delivered by: CONNER
This action is brought by an umbrella organization for numerous Westchester County civic associations, The Council of Greenburgh Civic Associations, and one of the Council's member associations, the Saw Mill Valley Civic Association. Plaintiffs seek, on First Amendment grounds, declaratory and injunctive relief from the Postal Service's threatened enforcement of 18 U.S.C. § 1725
with regard to the activities of plaintiffs and other Council members in depositing unstamped flyers and notices in mailboxes of private homes located in the Town of Greenburgh. Plaintiffs further seek similar relief on behalf of "others similarly situated."
The case is before this Court on remand from a decision of the Second Circuit Court of Appeals directing this Court to give the parties an opportunity to submit proof as to (1) the nature and extent of the handicap to plaintiffs' ability to communicate with their constituents if the statute is enforced (thus restricting plaintiffs to use of the mails or to alternative means of house-to-house distribution) and (2) the opposing interest of the Postal Service in enforcing the statute as to these plaintiffs, particularly the Postal Service's interest in preventing mailbox overcrowding, promoting the security of the mails, and protecting mail revenues. Council of Greenburgh Civic Associations v. United States Postal Service, 586 F.2d 935 (2d Cir. 1978). This Court heard testimony on these issues on June 28 and July 5 and 6, 1979.
This opinion and order incorporates the Court's findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P.
Both the majority opinion for the Second Circuit and Judge Kaufman in his concurring opinion suggested that the named plaintiffs
would be entitled to relief if the testimony at trial indicated that, on balance, the curtailment of plaintiffs' interest in free expression resulting from enforcement of the statute substantially outweighed the government's interest in the effective delivery and the protection of the mails. 586 F.2d at 936-37. Judge Kaufman further suggested, see 586 F.2d at 937, that plaintiffs might be entitled to relief on a showing of a less substantial curtailment of their interest in free expression if the testimony at trial indicated that the deposit of circulars in mailboxes constituted such an established means of communication that the mailboxes could be considered a public forum within the meaning of cases such as Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); Martin v. City of Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943); and Cox v. New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed. 1049 (1941), and if the evidence further showed that the statute as applied did not constitute a reasonable restriction of time, place and manner upon the use of that forum, see Grayned, supra, 408 U.S. at 116-17, 2303-2304.
A. Burden on Plaintiffs' Ability to Communicate
1. Burden flowing from use of the mails
The evidence at trial establishes that use of the mails is financially burdensome to plaintiffs and constitutes a significant impediment to plaintiffs' ability to communicate quickly with their constituents. Numerous witnesses testified to the small or nonexistent cash reserves of the neighborhood civic groups represented by the umbrella organization of the Council of Greenburgh Civic Associations, as well as to the small cash reserves of the Council itself. Trial transcript ("Tr.") at 23, 94-95, 150-51, 208-09, 253. Plaintiffs' witnesses also testified that the majority of Greenburgh neighborhood associations, because of their size or tax status, were not eligible for bulk mail or charitable organization mail rates; that the majority of such groups could not afford even those reduced rates on a regular basis; and that the updating of the address lists necessary for a mailing and the addressing of envelopes or folded flyers constituted a significant administrative burden on a small volunteer civic group. See, e.g., Tr. at 22-23, 82, 108. Defendants did not contradict this testimony, except to indicate that certain larger civic associations might qualify for bulk mail rates if they could pay the initial fee.
Plaintiffs' witnesses further testified that much of the business of local civic associations concerns activities of local government bodies town and village boards, school boards, and the like; and that the agendas for such meetings are often available only a short time before the meetings, or that matters come up without being placed on a prepared agenda, so that notice must often be given to constituents within a very short time. Tr. at 22, 152, 214-15, 340. The mail, these witnesses stated, has not, in their experience as civic organization members, been delivered with the speed required to notify constituents of such urgent matters. Tr. at 23, 168-70, 197-99, 624. Defendant's witnesses did not refute plaintiffs' evidence as to the speed of mail service in the Town of Greenburgh: while defendant did introduce evidence showing that internal Post Office guidelines require delivery of bulk mail within two days after it arrives at the receiving post office, Tr. at 366 and defendant's Exhibit G, defendant's witnesses admitted that these time standards are frequently not met, Tr. at 422-23, that their compliance figures for White Plains bulk mail rely on a sample of less than 5% of such mail, Tr. at 465-66, and that the standards are especially difficult to achieve in a multi-Post Office region such as the Town of Greenburgh, Tr. at 467.
2. Effectiveness of Alternative Methods of Delivery
The evidence further establishes that none of the alternative means of flyer delivery or other communication suggested by defendant or by the Second Circuit hanging material on door knobs, placing flyers under doors, using newspaper or other non-postal boxes affixed to houses or mailbox posts, telephone communication, hand-to-hand delivery, leaving flyers wrapped in a plastic sandwich bag on the doorstep is nearly as effective as placing civic association flyers in approved mailboxes; so that restriction of plaintiffs' delivery methods to such alternatives also constitutes a serious burden on plaintiffs' ability to communicate with their constituents.
Plaintiffs' witnesses testified at length as to the impracticality of the alternative delivery methods suggested. If civic associations attempt to deliver notices by leaving them outside, unprotected (i. e., by inserting them part way into a door, or under a doormat, or taped onto a door), they testified that the materials are often lost, blown away or damaged or hidden by rain or snow before the occupant has an opportunity to retrieve and read them. Tr. at 41, 106, 150-52, 238, 258-59. They further testified that it is usually impossible for a civic association member to deliver flyers by slipping them all the way under the door of a house in these suburban areas because the vast majority of homes have weatherstripping under the outside door or screen door. Tr. at 85. If special measures are employed to protect the flyers from the weather i. e., use of special plastic bags which fit over a doorknob, or placing the flyers in conventional plastic bags these measures take time and are relatively expensive for a small volunteer organization, Tr. at 35, 622; moreover, the plastic-wrapped notices may also be blown away or lost, and the special door-knob bags may not be suitable for all the different types of door handles ...