United States Court of Appeals

                              FOR THE EIGHTH CIRCUIT



                                   ___________

                                   No. 95-4158
                                   ___________

Harlan L. Jacobsen,                       *
                                          *
             Plaintiff-Appellee,          *
                                          *
      v.                                  *
                                          *
Richard Howard, Secretary of              *   Appeal from the United States
the State of South Dakota                 *   District Court for the
Transportation, individually              *   District of South Dakota.
and in that capacity; Jeff                *
Holden, Director of South                 *
Dakota Highway Safety and                 *
Motor Vehicles, individually              *
and in that capacity,                     *
                                          *
            Defendants-Appellants.*

                                   ___________

                      Submitted:      June 12, 1996

                          Filed:   March 24, 1997
                                   ___________

Before LOKEN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

                                   ___________

JOHN R. GIBSON, Circuit Judge.


      Richard Howard, Secretary of State of South Dakota Transportation,
and   Jeff Holden, Director of South Dakota Highway Safety and Motor
Vehicles,   appeal     from     the     district      court's1   order   declaring
unconstitutional three South Dakota statutes, that prohibit newspaper
vending machines at interstate rest areas, and enjoining Howard and Holden
from enforcing the statutes against




       1
       The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
Harlan L. Jacobsen, a newspaper publisher and distributor.              Howard and
Holden argue that the district court erred in concluding that the statutes
were unconstitutional under the First Amendment overbreadth doctrine and
as applied to Jacobsen.         They contend that we should uphold the South
Dakota statutes because they are not facially overbroad, are reasonable
regulations by the state, and are only incidental regulations of speech not
directed to the suppression of speech.              Because we conclude that the
statutes are unconstitutional as applied to Jacobsen, we need not consider
the overbreadth question.       We affirm the judgment of the district court.


        Jacobsen publishes a newspaper, Solo RFD, for single adults, that he
primarily distributes through vending machines.             In July 1991 Jacobsen
placed a newspaper vending machine at the Interstate 29 rest area near
Vermillion, South Dakota.       Several weeks later, an independent contractor
for the South Dakota Department of Transportation removed the vending
machine from the rest area and placed it in storage.          Jacobsen sued Howard
and Holden, individually and in their official capacities, seeking to
enjoin the South Dakota officials from enforcing the state statutes under
which    the   vending    machine   was   removed   and   declaring   the   statutes
unconstitutional.        He also sued Holden and Howard under 42 U.S.C. § 1983
(1994), claiming that the removal of his vending machine from the rest area
deprived him of his rights under the First and Fourteenth Amendments and
constituted a seizure of property without due process.


        Both parties moved for summary judgment.          Howard and Holden argued
that Congress delegated the authority to regulate vending machines at
interstate rest areas to the states, 23 U.S.C. § 111(b)(1994), and that
South Dakota could enact laws to prohibit the placement of all vending
machines except soft drink vending machines operated for the benefit of
visually impaired vendors.      The district court rejected Howard and Holden's
argument and




                                          -2-
interpreted 23 U.S.C. § 111(b)2 to be a delegating statute, granting states
authority to permit the placement of vending machines in rest areas of the
interstate system, but not authorizing any type of regulation concerning
the vending machines. The court then held the three statutes in question3



     2
         23 U.S.C. § 111(b) states:

     Vending machines.-- Notwithstanding subsection (a), any
     State may permit the placement of vending machines in
     rest and recreation areas, and in safety rest areas,
     constructed or located on rights-of-way of the Interstate
     System in such State. Such vending machines may only
     dispense such food, drink, and other articles as the
     State highway department determines are appropriate and
     desirable. Such vending machines may only be operated by
     the State.     In permitting the placement of vending
     machines, the State shall give priority to vending
     machines which are operated through the State licensing
     agency designated pursuant to section 2(a)(5) of the Act
     of June 20, 1936, commonly known as the "Randolph-
     Sheppard Act" (20 U.S.C. 107a(a)(5)).       The costs of
     installation, operation, and maintenance of vending
     machines shall not be eligible for Federal assistance
     under this title. (Emphasis added).

     3
      The South Dakota statutes are:

     31-8-16.    Commercial establishment on right-of-way
     prohibited--Exception-- Violation as misdemeanor.      No
     automotive   service    station   or   other   commercial
     establishment for serving motor vehicle users may be
     constructed or located within the right-of-way of, or on
     publicly owned or publicly leased land acquired or used
     for or in connection with a controlled-access highway.
     This section does not apply to a vending facility vending
     soft drinks only operated for the benefit of visually
     impaired vendors licensed by the division of service to
     the visually impaired. A violation of this section is a
     Class 2 misdemeanor.

S.D. Codified Laws § 31-8-16 (Michie Supp. 1996).

     31-29-83.    Commercial activities in rest areas or
     information centers not permitted-- Exception. Nothing
     in §§ 31-29-61 to 31-29-83, inclusive, authorizes the
     state or any political subdivision to operate or
     maintain, directly or indirectly, any commercial activity

                                   -3-
facially




     in any safety rest area or information center.     This
     section does not apply to a vending facility vending
     soft drinks only operated for the benefit of visually
     impaired vendors licensed by the division of service to
     the visually impaired.

S. D. Codified Laws § 31-29-83 (Michie Supp. 1996).

     31-32-13. Business requiring use of highway by customers
     as misdemeanor-- Exceptions. It is a Class 2 misdemeanor
     for any person to conduct an establishment or maintain a
     business the nature of which requires the use by patrons
     or customers of any part of the right-of-way of a state
     trunk highway while the patron or customer is receiving
     or discharging any merchandise or commodity at the place
     of business.    This section does not apply to streets
     within the limits of municipalities which are under the
     control and regulation of the municipality. This section
     does not apply to a vending facility vending soft drinks
     only operated for the benefit of visually impaired
     vendors licensed by the Division of Service to the
     Visually Impaired.

S.D. Codified Laws § 31-32-13 (Michie Supp. 1996).



                               -4-
unconstitutional under the First Amendment overbreadth doctrine because the
statutes "sweep within their ban on commercial use of interstate rest areas
all newspaper vending machines . . . creat[ing] a virtual First Amendment
Free Zone."


     Alternatively, the district court held that the state statutes were
unconstitutional as applied.   Relying on Sentinel Communications Co. v.
Watts, 

(11th Cir. 1991), the court agreed that the rest areas
were non-public fora and, as such, the regulations restricting First
Amendment rights must only be reviewed for reasonableness.   After examining
the interests served by the statutes and the impact the statutes had on
First Amendment activities, the court concluded that the statutes were
unreasonable because they banned all commercial activities at interstate
rest areas and unreasonably interfered with the constitutionally protected
activity of newspaper distribution.   The court reasoned




                                   -5-
that distributing and reading of newspapers is compatible with the normal
activities at interstate rest areas, and that the state's interests in
meeting the safety, rest, and information needs of interstate travelers
were not jeopardized by permitting the constitutionally protected activity
of distributing newspapers at these areas.    The court was influenced by the
less restrictive regulations of other states, and the state's failure to
show an effective alternative means of distribution or communication,
especially considering the sparse population in most areas of South Dakota.
After concluding that the statutes were also unconstitutional as applied,
the court enjoined the state officers from enforcing the statutes.       The
court entered summary judgment in favor of Howard and Holden on Jacobsen's
section 1983 claim, ruling that Jacobsen failed to allege any facts that
would establish that Howard and Holden were directly involved in the action
of the independent contractor who removed Jacobsen's vending machine and
whom Jacobsen did not name as a party.4      Howard and Holden appeal.


                                    I.


     Howard and Holden argue that the statutes are not facially overbroad,
and Jacobsen must show that the statutes are unconstitutional as applied.
Howard and Holden further attack the district court's alternative ruling
that the statutes are unconstitutional as applied.     We first consider the
district court's ruling that the statutes are unconstitutional as applied.


     Our First Amendment analysis depends on the type of forum being
regulated.   In a traditional public forum or a public forum by government
designation, First Amendment restrictions are subject to strict scrutiny.
Board of Airport Commissioners v. Jews for




     4
      Jacobsen argues in his brief that he is entitled to monetary
damages; however, he did not file a cross appeal from the district
court's ruling to the contrary.

                                    -6-
Jesus, 

, 572-73 (1987).         We uphold an exclusion of expressive
activities if the regulation is necessary to serve a compelling state
interest and the regulation is narrowly drawn to achieve that interest.

(citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 

, 45 (1983)); Cornelius v. NAACP, 

, 800 (1985).          A state
may   restrict access to a nonpublic forum, however, as long as the
regulation is reasonable and not an effort to suppress expression merely
because of opposition to a speaker's view.        Jews for 

(citation and quotation omitted).


      Howard and Holden contend that interstate safety rest areas are
nonpublic fora, and are subject to the state's reasonable regulation.
Jacobsen concedes that the rest areas are nonpublic fora, but he argues
that access to these areas is critical if his newspapers are to survive.
He urges us to declare that the sidewalks within the interstate rest areas
are public fora, like other public streets and sidewalks.


      The district court relied on Sentinel Communications in deciding that
interstate rest areas, though resembling city parks, "are hardly the kind
of public property that has 'by long tradition or by government fiat . . .
been devoted to assembly and 

(quoting Perry
Educ. 

).       Of course, a rule based entirely on "long
tradition" might fail to adjust First Amendment protections to significant
changes in the ways the public congregates, communicates, and travels.
Moreover, from the standpoint of the government's need to limit free
speech, interstate rest areas seem quite different from airport terminals,
which were held to be nonpublic fora in International Society for Krishna
Consciousness, Inc. v. Lee, 

, 680-81 (1992).              Nevertheless,
because Jacobsen did not develop an adequate record on the issue, and
because we find the statutes infirm under the less rigorous standard for
nonpublic   fora,   we   assume   without    deciding   that   the   district   court
correctly decided that the




                                       -7-
interstate rest areas are nonpublic fora, and we turn our attention to
whether the South Dakota statutes are reasonable.


     Howard   and   Holden    argue   that   the   district   court   analyzed   the
reasonableness of the statutes in a backwards fashion.         They argue that the
court erred because it first considered whether the newspaper vending
machines were compatible with the purpose of the safety rest area, instead
of examining the statutes alone to decide if the restrictions contained in
the statutes were arguably reasonable.             They stress that federal law
disfavors vending machines in rest areas and prohibits those not operated
directly or under contract with the state.           See 23 U.S.C. § 111(b); 23
                                  5
C.F.R. § 752.5(b)-(c) (1996).          They state that they are in a better
position than the federal court to determine the reasonableness of the
statutes.


     We are persuaded that the district court correctly analyzed the South
Dakota statutes.    In considering the reasonableness of the statutes, the
Supreme Court has uniformly directed us to consider the speech which is
being restricted by the government regulation.          For example, in City of
Lakewood v. Plain Dealer Publishing Co., 

(1988), the Supreme
Court discussed a "hypothetical ordinance" prohibiting newsracks on public
property.   

     Although the Court declined to decide whether a
city could constitutionally prohibit the placement of newsracks on public
property, 

n.7, the Court instructed that it would analyze an
ordinance prohibiting all newsracks using the time,




     5
      23 C.F.R. Section 752.5(b) provides:

     The State may permit the placement of vending machines in
     existing or new safety rest areas located on the rights-
     of-way of the Interstate system for the purpose of
     dispensing such food, drink, or other articles as the
     State determines are appropriate and desirable. . . .
     Such vending machines shall be operated by the State.
     (Emphasis added).

                                       -8-
place, and manner test.          

          The Court identified the risk
necessitating the First Amendment inquiry as the government's silence or
restraint of a channel of speech, and stated that the appropriate inquiry
is "whether some interest unrelated to speech justifies this silence."               

   is   whether    the    manner    of   expression   is   basically
incompatible with the normal activity of a particular place at a particular
time."      

v. City of Rockford, 

, 116
(1972)).    As explained by the Second Circuit:

     Public property . . . which is neither a traditional nor a
     designated public forum, can still serve as a forum for First
     Amendment expression if the expression is appropriate for the
     property and is not incompatible with the normal activity of a
     particular place at a particular time.

Gannett Satellite Info. Network, Inc. v. Metropolitan Transp. Auth., 

, 773 (2d Cir. 1984) (citations and quotations omitted).


     The     Supreme    Court   used    a    similar    inquiry   in   Perry   Education

, instructing that a restriction on speech
is "reasonable" when it is "consistent with the [state's] legitimate
interest in preserving the property for the use to which it is lawfully
dedicated."


     The district court relied on Sentinel Communications when it stated
that there is a constitutional right to distribute and circulate newspapers
through the use of 

.         The Eleventh Circuit
relied on a number of cases in reaching this conclusion, including City of

.       Although several courts have indicated that a
city may not completely ban newsracks from public property,6 City of
Lakewood




     6
      See, e.g., Gold Coast Publications, Inc. v. Corrigan, 

, 1343-44 (11th Cir. 1994), cert. denied, 

(1995); Miami Herald Publ'g Co. v. City of Hallandale, 

, 673 (11th Cir. 1984); Gannett Satellite Info. Network, Inc. v.
Metropolitan Transp. Auth., 

, 772 (2d Cir. 1984). See
also International Caucus of Labor Comms. v. City of Montgomery, 

, 1278 (11th Cir. 1996) (upholding city policy banning
tables from city sidewalks and distinguishing newsrack cases as
precedent).

                                             -9-
did not decide the 

n. 7 ("we do not pass on [the
dissent's] view that a city may constitutionally prohibit the placement of
newsracks on public property").
        In addition, there is, at least, a disagreement among members of the
Supreme Court on whether a city may prohibit newsracks from public rights-
of-way.      Several justices have stated that the right to distribute
newspapers does not include the right to distribute newspapers using
newsracks.     City of 

(White, J., dissenting)
(citing Breard v. Alexandria, 

, 642 (1951)).                     Justice White
specifically concluded that although a newspaper publisher may have the
right to distribute newspapers, this right does not "encompass the right
to take city property . . . and appropriate it for . . . exclusive use, on
a semipermanent basis, by means of the erection of a newsbox."                 

See also City of Cincinnati v. Discovery Network, Inc., 

, 438,
445 (1993) (Rehnquist, C.J., dissenting) (stating that a city could order
the removal of all newsracks from its public rights-of-way).


        In Graff v. City of Chicago, 

(7th Cir. 1993) (en banc),
cert. denied, 

(1994), the Seventh Circuit considered a
challenge    to    a   city   ordinance   governing     the    licensing      of   sidewalk
newsstands.        

   A plurality of five judges, distinguishing
newsracks from newsstands, concluded that a newsstand on public property
was not entitled to First Amendment protection.                

      Seven
other    judges,    however,   disagreed.        See   

   (Flaum,   J.,
concurring, joined by Cudahy, J.) (writing separately to "emphasize my
belief that the erection and maintenance of newspaper stands qualifies as
conduct




                                          -10-
 commonly associated with expression . . . implicat[ing] the First
Amendment's protection of expression"); 

(Ripple, J.,
concurring, joined by Cudahy, J., and Rovner, J.) (finding "untenable" the
plurality's position that the placement of a newsstand does not implicate
expressive activity); 

(Cummings, J., dissenting, joined by
Bauer, J., and Fairchild, J.) (same).             Thus, although Graff considered a
licensing scheme and not a ban on all newsracks, it reinforces our view
that the state's prohibition is unreasonable and cannot square with the
First    Amendment.     Because     the    statutes     here   go   far   beyond   merely
prohibiting newspaper vending machines, we are not faced with deciding the
First Amendment limitations on time, place, and manner regulation of
newsracks and vending machines.       The three statutes prohibit all commercial
distribution    of    newspapers.         The   state   has    presented   no   credible
explanation why the distribution of newspapers at an interstate rest area
is incompatible with the state's interests in providing places of safety,
rest, and information to interstate travelers.            In these circumstances, we
are persuaded that the state may not legislate such a broad ban on First
Amendment activity.      See Discovery 

("Cincinnati
has enacted a sweeping ban that bars from its sidewalks a whole class of
constitutionally protected speech"); International Caucus of Labor Comms.
v. City of Montgomery, 

, 1278 (11th Cir. 1996) (discussing
significance of newsracks in public places).            We conclude that the statutes
are unconstitutional insofar as they ban the distribution of newspapers at
interstate rest areas.


        Howard and Holden's argument that Jacobsen did not have a contract
with the state to distribute newspapers as required by 23 U.S.C. § 111(b)
is unpersuasive, as the state statutes prohibit the state officials from
entering into such a contract.       We have no hesitation in deciding that the
distribution of newspapers at an interstate rest area is fully compatible
with the state's interests in providing safety, rest, and information to
interstate travelers.




                                           -11-
We conclude that the state statutes are unreasonable, and affirm the
district court's ruling that the statutes are unconstitutional as applied
to Jacobsen.


                                     II.


     Because we hold the statutes are unconstitutional as applied to
Jacobsen, we need not decide whether the statutes are facially overbroad
as held by the district court.   However, we point out that the overbreadth
doctrine is "strong medicine," Broadrick v. Oklahoma, 

, 613
(1973), used only if the overbreadth is "substantial," City of Houston v.
Hill, 

, 458-59 (1987).    The overbreadth doctrine allows:


     an individual whose own speech or expressive conduct may
     validly be prohibited or sanctioned . . . to challenge a
     statute on its face because it also threatens others not before
     the court--those who desire to engage in legally protected
     expression but who may refrain from doing so rather than risk
     prosecution or undertake to have the law declared partially
     invalid.


Brockett v. Spokane Arcades, Inc., 

, 503 (1985).   "[T]here must
be a realistic danger that the statute itself will significantly compromise
recognized First Amendment protections of parties not before the Court for
it to be facially challenged on overbreadth grounds."       Jews for Jesus,

(quoting City Council of Los Angeles v. Taxpayers for
Vincent, 

, 801 (1984)).


     "It is not the usual judicial practice, . . .   nor do we consider it
generally desirable to proceed to an overbreadth issue unnecessarily--that
is, before it is determined that the statute would be valid as applied."
Board of Trustees v. Fox, 

, 484-85 (1988).   Permitting a facial
challenge "would convert the use of the overbreadth doctrine from a
necessary means of vindicating the plaintiff's own right not to be bound
by a statute




                                    -12-
that is unconstitutional into a means of mounting gratuitous wholesale
attacks upon state and federal laws."     

   Because we conclude
that the statutes are invalid as applied, it is appropriate that we not
consider the overbreadth issue.    See 

district court
should have first considered the validity of the statutes as applied
instead of reaching the overbreadth question in the first instance.      Had
the district court done so, it also would have found it unnecessary to
consider the overbreadth issue.   Accordingly, we must vacate that portion
of the district court's opinion and judgment that holds the statutes
overbroad.


                                   III.


     Our conclusion that the statutes are unconstitutional undercuts
Holden's and Howard's remaining argument that we should uphold the statutes
under the incidental speech doctrine.     "[W]hen 'speech' and 'nonspeech'
elements are combined in the same course of conduct, a sufficiently
important governmental interest in regulating the nonspeech element can
justify incidental limitations on First Amendment freedoms."   United States
v. O'Brien, 

, 376 (1968).        We will uphold an incidental
regulation of speech if the regulation:


     is within the constitutional power of the Government; if it
     furthers an important or substantial governmental interest; if
     the governmental interest is unrelated to the suppression of
     free expression; and if the incidental restriction on alleged
     First Amendment freedoms is no greater than is essential to the
     furtherance of that interest.

     Howard and Holden contend that the purpose behind the statutes is to
prohibit all commercial activity at interstate rest areas, and this
prohibition only incidentally regulates speech.    The




                                   -13-
statutes, however, ban the sale of newspapers.   In light of our discussion
above, we cannot say that the statutes only incidentally regulate speech,
or, on the state of this record, further the state's asserted interests.



     We vacate the portion of the district court's opinion and judgment
holding that the statutes are facially overbroad, and we affirm the
remainder of the judgment of the district court.


     A true copy.


           Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -14-