CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 74-848 Argued: November 5, 1975 --- Decided: March 24, 1976
MR. JUSTICE STEWART delivered the opinion of the Court.
The Fort Dix Military Reservation is a United States Army post located in a predominantly rural area of central New Jersey. Its primary mission is to provide basic combat training for newly inducted Army personnel. Accordingly, most of its 55 square miles are devoted to military training activities. The Federal Government exercises exclusive jurisdiction over the entire area within Fort Dix, including the state and county roads that pass through it. [n1] Civilian vehicular traffic is permitted on paved roads within the reservation, and civilian pedestrian traffic is permitted on both roads and footpaths. Military police regularly patrol the roads within the reservation, and they occasionally stop civilians and ask them the reason for their presence. Signs posted on the roads leading into the reservation state: "All vehicles are subject to search while on the Fort Dix Military Reservation" and "Soliciting prohibited unless approved by the commanding general." The main entrances to Fort Dix are not normally guarded, and a sign at one of the entrances says "Visitors Welcome." Civilians are freely permitted to visit unrestricted areas of the reservation. [p831]
Civilian speakers have occasionally been invited to the base to address military personnel. The subjects of their talks have ranged from business management to drug abuse. Visiting clergymen have, by invitation, participated in religious services at the base chapel. Theatrical exhibitions and musical productions have also been presented on the base. Speeches and demonstrations of a partisan political nature, however, are banned by Fort Dix Reg. 210-26 (1968), which provides that
[d]emonstrations, picketing, sit-ins, protest marches, political speeches and similar activities are prohibited and will not be conducted on the Fort Dix Military Reservation.
The regulation has been rigidly enforced: prior to this litigation, no political campaign speech had ever been given at Fort Dix. Restrictions are also placed on another type of expressive activity. Fort Dix Reg. 210-27 (1970) provides that
[t]he distribution or posting of any publication, including newspapers, magazines, handbills, flyers, circulars, pamphlets or other writings, issued, published or otherwise prepared by any person, persons, agency or agencies . . . is prohibited on the Fort Dix Military Reservation without prior written approval of the Adjutant General, this headquarters. [n2] [p832]
In 1972, the respondents Benjamin Spock and Julius Hobson were the candidates of the People's Party for the offices of President and Vice President of the United States, and Linda Jenness and Andrew Pulley were the candidates of the Socialist Workers Party for the same offices. On September 9, 1972, Spock, Hobson, Jenness, and Pulley wrote a joint letter to Major General Bert A. David, then commanding officer of Fort Dix, informing him of their intention to enter the reservation on September 23, 1972, for the purpose of distributing campaign literature and holding a meeting to discuss election issues with service personnel and their dependents. On September 18, 1972, General David rejected the candidates' [p833] request, relying on Fort Dix Regs. 2126 and 2127. [n3] Four of the other respondents, Ginaven, Misch, Hardy, and Stanton, were evicted from Fort Dix on various occasions between 1968 and 1972 for distributing literature not previously approved pursuant to Fort Dix Reg. 21027. Each was barred from reentering Fort Dix and advised that reentry could result in criminal prosecution. [n4]
On September 29, 1972, the respondents filed this suit in the United States District Court for the District of [p834] New Jersey to enjoin the enforcement of the Fort Dix regulations governing political campaigning and the distribution of literature, upon the ground that the regulations violated the First and Fifth Amendments of the Constitution. The District Court denied a preliminary injunction, Spock v. David, 349 F.Supp. 179, but the Court of Appeals reversed that order and directed that preliminary injunctive relief be granted to the respondents Spock, Hobson, Jenness, and Pulley. Spock v. David, 469 F.2d 1047. [n5] Pursuant to this judgment, the respondent Spock conducted a campaign rally at a Fort Dix parking lot on November 4, 1972. The District Court subsequently issued a permanent injunction prohibiting the military authorities from interfering with the making of political speeches or the distribution of leaflets in areas of Fort Dix open to the general public, [n6] and the Court of Appeals affirmed this final judgment. Spock v. David, 502 F.2d 953. We granted certiorari to consider the important federal questions presented. 421 U.S. 908.
In reaching the conclusion that the respondents could not be prevented from entering Fort Dix for the purpose of making political speeches or distributing leaflets, the Court of Appeals relied primarily on this Court's per curiam opinion in Flower v. United States, 407 U.S. 197. [p835] In the Flower case, the Court summarily reversed the conviction of a civilian for entering a military reservation after his having been ordered not to do so. At the time of his arrest, the petitioner in that case had been "quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas." Ibid. The Court's decision reversing the conviction, made without the benefit of briefing or oral argument, rested upon the premise that "‘New Braunfels Avenue was a completely open street,'" and that the military had "abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue." Id. at 198. Under those circumstances, the "base commandant" could
no more order petitioner off this public street because he was distributing leaflets than could the city police order any leaflete[e]r off any public street.
The decision in Flower was thus based upon the Court's understanding that New Braunfels Avenue was a public thoroughfare in San Antonio no different from all the other public thoroughfares in that city, and that the military had not only abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue, but also any right to exclude leafleteers -- "any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue."
That being so, the Court perceived the Flower case as one simply falling under the long-established constitutional rule that there cannot be a blanket exclusion of First Amendment activity from a municipality's open streets, sidewalks, and parks for the reasons stated in the familiar words of Mr. Justice Roberts in Hague v. CIO, 307 U.S. 496, 515-516:
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been [p836] used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
See, e.g., Niemotko v. Maryland, 340 U.S. 268; Saia v. New York, 334 U.S. 558, 561 n. 2; Murdock v. Pennsylvania, 319 U.S. 105; Jamison v. Texas, 318 U.S. 413, 416; Cantwell v. Connecticut, 310 U.S. 296; Schneider v. State, 308 U.S. 147.
The Court of Appeals was mistaken, therefore, in thinking that the Flower case is to be understood as announcing a new principle of constitutional law, and mistaken specifically in thinking that Flower stands for the principle that, whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a "public forum" for purposes of the First Amendment. Such a principle of constitutional law has never existed, and does not exist now. The guarantees of the First Amendment have never meant
that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.
Adderley v. Florida, 385 U.S. 39, 48.
The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.
Id. at 47. See also Cox v. [p837] Louisiana, 379 U.S. 559, 560-564. Cf. Pell v. Procunier, 417 U.S. 817.
The Court of Appeals in the present case did not find, and the respondents do not contend, that the Fort Dix authorities had abandoned any claim of special interest in regulating the distribution of unauthorized leaflets or the delivery of campaign speeches for political candidates within the confines of the military reservation. The record is, in fact, indisputably to the contrary. [n7] The Flower decision thus does not support the judgment of the Court of Appeals in this case.
Indeed, the Flower decision looks in precisely the opposite direction. For if the Flower case was decided the way it was because the military authorities had "abandoned any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue," then the implication surely is that a different result must obtain on a military reservation where the authorities have not abandoned such a claim. And if that is not the conclusion clearly to be drawn from Flower, it most assuredly is the conclusion to be drawn from almost 200 years of American constitutional history.
One of the very purposes for which the Constitution was ordained and established was to "provide for the common defence," [n8] and this Court over the years has on countless occasions recognized the special constitutional function of the military in our national life, a function both explicit and indispensable. [n9] In short, it [p838] is "the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. Toth v. Quarles, 350 U.S. 11, 17. And it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum.
A necessary concomitant of the basic function of a military installation has been "the historically unquestioned power of [its] commanding officer summarily to exclude civilians from the area of his command." Cafeteria Workers v. McElroy, 367 U.S. 886, 893. The notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is thus historically and constitutionally false.
The respondents, therefore, had no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix, and it follows that Fort Dix Regs. 210-26 and 210-27 are not constitutionally invalid on their face. These regulations, moreover, were not unconstitutionally applied in the circumstances disclosed by the record in the present case. [n10]
With respect to Reg. 210-26, there is no claim that the military authorities discriminated in any way among candidates for public office based upon the candidates' [p839] supposed political views. [n11] It is undisputed that, until the appearance of the respondent Spock at Fort Dix on November 4, 1972, as a result of a court order, no candidate of any political stripe had ever been permitted to campaign there.
What the record shows, therefore, is a considered Fort Dix policy, objectively and evenhandedly applied, of keeping official military activities there wholly free of entanglement with partisan political campaigns of any kind. Under such a policy, members of the Armed Forces stationed at Fort Dix are wholly free as individuals to attend political rallies, out of uniform and off base. But the military as such is insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates.
Such a policy is wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control. It is a policy that has been reflected in numerous laws and military regulations throughout our history. [n12] And it is a policy that the military authorities at Fort Dix were constitutionally free to pursue. [p840]
With respect to Reg. 2127, it is to be emphasized that it does not authorize the Fort Dix authorities to prohibit the distribution of conventional political campaign literature. The only publications that a military commander may disapprove are those that he finds constitute "a clear danger to [military] loyalty, discipline, or morale," and he "may not prevent distribution of a publication simply because he does not like its contents," or because it "is critical -- even unfairly critical -- of government policies or officials. . . ." [n13] There is nothing in the Constitution that disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command.
It is possible, of course, that Reg. 2127 might in the future be applied irrationally, invidiously, or arbitrarily. But none of the respondents in the present case even submitted any material for review. The noncandidate respondents were excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution. This case, therefore, simply does not raise any question of unconstitutional application of the regulation to any specific situation. Cf. Rescue Army v. Municipal Court, 331 U.S. 549.
For the reasons set out in this opinion the judgment is reversed.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
1. See N.J.Stat.Ann. 52:30-2 (1955):
Exclusive jurisdiction in and over any land . . . acquired by the United States is hereby ceded to the United States for all purposes except the service of process issued out of any of the courts of this state in any civil or criminal proceeding.
See also N.J.Stat.Ann. 27:5A-1 (1966):
Whenever any public road or highway is located wholly or in part within the limits of a United States military reservation, the United States military authorities shall have the power, within the limits of such reservations, to police such roads and highways to regulate traffic thereon, and to exercise such supervisory powers over such roads and highways as they may deem necessary to protect life and property on such military reservations.
2. This regulation does not permit the Fort Dix authorities to prohibit the distribution of conventional political campaign literature. The post regulation was issued in conformity with Army Reg. 210-10, ¶ 5-5(c) (1970), which states that permission to distribute a publication may be withheld only where
it appears that the dissemination of [the] publication presents a clear danger to the loyalty, discipline, or morale of troops at [the] installation. . . .
The Army regulation further provides that, if a base commander decides to withhold permission to distribute a publication, he shall
inform the next major commander and Headquarters, Department of the Army . . . and request . . . approval to prohibit the distribution of that publication or the particular issue thereof.
¶ 5-5(d). The base commander may delay distribution of the publication in question pending approval or disapproval of his request by Army headquarters. Ibid.
A Department of the Army letter, dated June 23, 1969, entitled Guidance on Dissent, ¶ 5(a)(3), gives as examples of materials which a commander need not allow to be distributed "publications which are obscene or otherwise unlawful (e.g., counseling disloyalty, mutiny, or refusal of duty)."
Commercial magazines and newspapers distributed through regular outlets such as post exchange newsstands need not be approved before distribution. Army Reg. 210-10, 5-5(c), (d), does provide that a commander may delay, and the Department of the Army may prohibit, the distribution of particular issues of such publications through official outlets. See Department of the Army letter, supra, ¶ 5(a)(1). The substantive standards for such restrictions are the same as those applicable to publications distributed other than through official outlets. Id. 5(a)(1), (2); Army Reg. 210-10, ¶ 5-5(e). This provision of Army Reg. 210-10, ¶ 5-5, allowing commanders to halt the distribution of particular issues of publications through regular outlets appears to be inconsistent with Department of Defense Directive 1325.6, ¶ III(A)(1) (1969), which provides that
[a] Commander is not authorized to prohibit the distribution of a specific issue of a publication through official outlets such as post exchanges and military libraries.
See Note, Prior Restraints in the Military, 73 Col.L.Rev. 1089, 1106 n. 127 (1973).
3. General David's letter stated, in pertinent part:
Your request to visit Fort Dix and campaign among our servicemen and women is denied.
There are several compelling reasons for this denial which I shall enumerate. First, there are lawful regulations in effect which prohibit political speeches and similar activities on all of the Fort Dix Military Reservation (Fort Dix Regulation 210-26). The distribution of literature without prior approval of this headquarters is also prohibited (Fort Dix Regulation 210-27). Also, Department of the Army Regulations prohibit military personnel from participating in any partisan political campaign and further prohibits [sic] them from appearing at public demonstrations in uniform.
The mission assigned to me as Commanding General of Fort Dix is to administer basic combat training to approximately 15,000 men at any given time. These men spend a period of eight weeks here during which they perform their training on very vigorous schedules occupying virtually all of their time. I am not in a position to dilute the quality of this training by expanding these schedules to include time to attend political campaigning and speeches. Political campaigning on Fort Dix cannot help but interfere with our training and other military missions.
To decide otherwise could also give the appearance that you or your campaign is supported by me in my official capacity. I feel that I am prohibited from doing this for any candidate for public office.
4. Title 18 U.S.C. § 1382 provides that
[w]hoever reenters or is found within [a military] reservation . . . after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof -- shall be fined not more than $500 or imprisoned not more than six months, or both.
5. The Court of Appeals did not disturb the denial of preliminary relief to the four noncandidate respondents, because their interests were not viewed as
so directly connected with [the upcoming Presidential] election, [or] so promptly and diligently pursued in the courts, as are the interests of the candidates. They make a lesser showing of immediate irreparable injury, and possibly a lesser showing of likelihood of meeting the jurisdictional amount.
469 F.2d at 1056.
6. The District Court dismissed the complaint as to Jenness and Pulley because they were below the constitutional age limits for the offices they sought. There was no appeal from that part of the District Court's judgment.
7. See n. 3, supra.
8. U.S.Const. Preamble. See also U.S.Const., Art. I, § 8; Art. II, § 2.
9. For illustrative recent decisions of this Court see, e.g., Schlesinger v. Councilman, 420 U.S. 738; Schlesinger v. Ballard, 419 U.S. 498; Parker v. Levy, 417 U.S. 733; Bell v. United States, 366 U.S. 393; United States ex rel. Toth v. Quarles, 350 U.S. 11; Burns v. Wilson, 346 U.S. 137; Orloff v. Willoughby, 345 U.S. 83; Gusic v. Schilder, 340 U.S. 128.
10. The fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not, of itself, serve to convert Fort Dix into a public forum or to confer upon political candidates a First or Fifth Amendment right to conduct their campaigns there. The decision of the military authorities that a civilian lecture on drug abuse, a religious service by a visiting preacher at the base chapel, or a rock musical concert would be supportive of the military mission of Fort Dix surely did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever.
11. Cf. Jenness v. Forbes, 351 F.Supp. 88 (RI).
12. Members of the Armed Forces may not be polled by any person or political party to determine their choice among candidates for elective office, 18 U.S.C. § 596; it is unlawful to solicit political contributions in any fort or arsenal, 18 U.S.C. § 603; candidates for federal office are prohibited from soliciting contributions from military personnel, 18 U.S.C. § 602; no commissioned or noncommissioned officer in the Armed Forces may attempt to influence any member of the Armed Forces to vote for any particular candidate, 50 U.S.C. § 1475; no officer of the Armed Forces may "in any manner interfere with the freedom of any election in any State," 42 U.S.C. § 1972; a military officer may not have troops under his control at any place where a general or special election is held, 18 U.S.C. § 592. See also Army Reg. 600-20 (1971); Army Reg. 670-5 (1975).
13. Department of the Army letter, supra, n. 2, 5(a)(1), (3).