|Greer v. Spock
502 F.2d 953, reversed.
[ Stewart ]
[ Burger ]
[ Powell ]
[ Brennan ]
[ Marshall ]
Greer v. Spock
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs, dissenting.
Only four years ago, in a summary decision that presented little difficulty for most Members of this Court, we held that a peaceful leafleteer could not be excluded from the main street of a military installation to which the civilian public had been permitted virtually unrestricted access. Despite that decision in Flower v. United States, 407 U.S. 197 (1972), the Court today denies access to those desirous of distributing leaflets and holding a political rally on similarly unrestricted streets and parking lots of another military base. In so doing, the Court attempts to distinguish Flower from this case. That attempt is wholly unconvincing, both on the facts and in its rationale. I therefore dissent.
According to the Court, the record here is "indisputably [p850] to the contrary" of that in Flower. Ante at 837. [n1] But, in Flower, this Court relied on the following characterization of Fort Sam Houston -- the military fort involved there -- and its main street in holding that a peaceful leafleteer could not be excluded from that street.
There is no sentry post or guard at either entrance or anywhere along the route. Traffic flows through the post on this and other streets 24 hours a day. A traffic count conducted on New Braunfels Avenue on January 22, 1968, by the Director of Transportation of the city of San Antonio shows a daily (24-hour) vehicular count of 15,110 south of Grayson Street (the place where the street enters the post boundary) and 17,740 vehicles daily north of that point. The street is an important traffic artery used freely by buses, taxi cabs and other public transportation facilities, as well as by private vehicles, and its sidewalks are used extensively at all hours of the day by civilians as well as by military personnel. Fort Sam Houston was an open post; the street, New Braunfels Avenue, was a completely open street.
407 U.S. at 198, quoting United States v. Flower, 452 F.2d 80, 90 (CA5 1971) (Simpson, J., dissenting). [p851]
Fort Dix, at best, is no less open than Fort Sam Houston. No entrance to the Fort is manned by a sentry or blocked by any barrier. The reservation is crossed by 10 paved roads, including a major state highway. Civilians without any prior authorization are regular visitors to unrestricted areas of the Fort or regularly pass through it, either by foot or by auto, at all times of the day and night. Civilians are welcome to visit soldiers, and are welcome to visit the Fort as tourists. They eat at the base and freely talk with recruits in unrestricted areas. Public service buses, carrying both civilian and military passengers, regularly serve the base. A 1970 traffic survey indicated that 66,000 civilian and military vehicles per day entered and exited the Fort. Indeed, the reservation is so open as to create a danger of muggings after payday and a problem with prostitution. There is, therefore, little room to dispute the Court of Appeals' finding in this case that "Fort Dix, when compared to Fort Sam Houston, is a fortiori an open post." Spock v. David, 469 F.2d 1047, 1054 (CA3 1972). See Appendix to this opinion for photographic comparison of both forts. [Appendix omitted.]
The inconsistent results in Flower and this case notwithstanding, it is clear from the rationale of today's decision that, despite Flower, there is no longer room, under any circumstance, for the unapproved exercise of public expression on a military base. The Court's opinion speaks in absolutes, exalting the need for military preparedness and admitting of no careful and solicitous accommodation of First Amendment interests to the competing concerns that all concede are substantial. It parades general propositions useless to precise resolution of the problem at hand. According to the Court,
it 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,
ante at 837-838, [p852] and "it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum," ante at 838. But the training of soldiers does not, as a practical matter, require exclusion of those who would publicly express their views from streets and theater parking lots open to the general public. Nor does readiness to fight require such exclusion, unless, of course, the battlefields are the streets and parking lots, or the war is one of ideologies, and not men.
With similar unenlightening generality, the Court observes:
One of the very purposes for which the Constitution was ordained and established was to "provide for the common defence," 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.
Ante at 837. But the Court overlooks the equally, if not more, compelling generalization that -- to paraphrase the Court -- one of the very purposes for which the First Amendment was adopted was to "secure the Blessings of Liberty to ourselves and our Posterity," [n2] and this Court over the years has on countless occasions recognized the special constitutional function of the First Amendment in our national life, a function both explicit and indispensable. [n3] Despite the Court's oversight, if the recent lessons of history mean anything, it is that the First Amendment does not evaporate with the mere intonation of interests such as national defense, military necessity, or domestic security. [p853] Those interests "cannot be invoked as a talismanic incantation to support any exercise of . . . power." United States v. Robel, 389 U.S. 258, 263 (1967). [n4] See New York Times Co. v. United States, 403 U.S. 713 (1971). In all cases where such interests have been advanced, the inquiry has been whether the exercise of First Amendment rights necessarily must be circumscribed in order to secure those interests.
This principle was reaffirmed as recently as Buckley v. Valeo, ante p. 1, where we permitted significant interference with First Amendment freedoms in order to secure this country's eminent interest in the integrity of the political process. But even there, we required the employment of "means closely drawn to avoid unnecessary abridgment." Ante at 25. This requirement was cogently expressed and supported by MR. CHIEF JUSTICE BURGER, writing separately in Buckley:
We all seem to agree that whatever the legitimate public interests in this area, proper analysis requires us to scrutinize the precise means employed to implement that interest. The balancing test used by the Court requires that fair recognition be given to competing interests. With respect, I suggest the Court has failed to give the traditional standing to some of the First Amendment values at stake here. [p854] Specifically, it has failed to confine the particular exercise of governmental power within limits reasonably required.
"In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).
"Unduly" must mean not more than necessary, and, until today, the Court has recognized this criterion in First Amendment cases:
"In the area of First Amendment freedoms, government has the duty to confine itself to the least intrusive regulations which are adequate for the purpose." Lamont v. Postmaster General, 381 U.S. 301, 310 (1965) (BRENNAN, .J., concurring). (Emphasis added.)
Similarly, the Court has said:
"[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, [364 U.S. 479, 488 (1960) (STEWART, J.)].
Ante at 238-239 (concurring and dissenting).
Similarly, in United States v. United States District Court, 407 U.S. 297 (1972), this Court held that the concededly legitimate Government need to safeguard domestic security through wiretapping did not ipso facto vitiate protections vouchsafed by the Fourth Amendment, especially because such surveillance posed a threat to First Amendment interests. In particular, we held:
As the Fourth Amendment is not absolute in its [p855] terms, our task is to examine and balance the basic values at stake in this case: the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.
Id. at 314-315 (emphasis supplied). [n5] [p856] If such is the necessary inquiry in the face of a critical Government interest where the First Amendment is only indirectly implicated, then no less careful an inquiry is compelled in this case, where the First Amendment is directly implicated and the Government interest is no more important.
Finally, in Pell v. Procunier, 417 U.S. 817 (1974), this Court required that, even in penal institutions "First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system." Id. at 822. Accordingly, the Court did not abandon extensive analysis of the need for the restrictive prison regulation challenged there, even though "central to all other corrections goals [was] the institutional consideration of internal security within the corrections facilities themselves." Id. at 823. Today, however, the Court gives no consideration to whether it is actually necessary to exclude all unapproved public expression from a military installation under all circumstances and, more particularly, whether exclusion is required of the expression involved here. It requires no careful composition of the interests at stake. Yet, as the Court also observed in Pell, "[c]ourts cannot . . . abdicate their constitutional responsibility to delineate and protect fundamental liberties." Id. at 827. First Amendment principles especially demand no less. [n6] [p857]
True to these principles and unlike the Court's treatment of military interests, respondents' position is not that the First Amendment is unbending. Contrary to the intimations of today's decision, they do not contend that
[t]he guarantees of the First Amendment . . . [mean] "that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please."
Ante at 836. Respondents Spock and Hobson's initial letter to the Fort Dix commander indicating their intent to campaign on the base also indicated in unequivocal terms their willingness to confine the rally to such times and places as might reasonably be designated by petitioners. [n7] The [p858] other respondents sought only to distribute leaflets in unrestricted areas. And, contrary to further intimations by today's decision, respondents do not go so far as to contend, nor did the Court of Appeals think, 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,
ante at 836, or 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,
ante at 838. Respondents carefully and appropriately distinguish between a military base considered as a whole and those portions of a military base open to the public. [n8] And not only do respondents not go so far as to contend that open places Constitute a "public forum," [n9] but also they need not go so far. Flower never went so far as to find that Fort Sam Houston or its public streets were a public forum. Moreover, the determination that a locale is a "public forum" has never been erected as an absolute prerequisite to all forms of demonstrative First Amendment activity. In short, then, today's decision only serves to answer a set of broad, falsely formulated issues, and fails to provide the careful consideration of interests deserved by the First Amendment. [p859]
It bears special note that the notion of "public forum" has never been the touchstone of public expression, for a contrary approach blinds the Court to any possible accommodation of First Amendment values in this case. In Brown v. Louisiana, 383 U.S. 131 (1966), for example, the First Amendment protected the use of a public library as a site for a silent and peaceful protest by five young black men against discrimination. There was no finding by the Court that the library was a public forum. Similarly, in Edwards v. South Carolina, 372 U.S. 229 (1963), the First Amendment protected a demonstration on the grounds of a state capitol building. Again, the Court never expressly determined that those grounds constituted a public forum. And in Tinker v. Des Moines School Dist., 393 U.S. 503 (1969), the First Amendment shielded students' schoolroom anti-war protest, consisting of the wearing of black armbands. [n10] Moreover, none of the opinions that have expressly characterized locales as public forums has really gone that far, for a careful reading of those opinions reveals that their characterizations were always qualified, indicating that not every conceivable form of public expression would be protected. See Southeastern Promotions, Ltd. . v. Conrad, 420 U.S. 546 (1976); Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Cox v. New Hampshire, 312 U.S. 569 (1941); Hague v. CIO, 307 U.S. 496 (1939).
Those cases permitting public expression without characterizing the locale involved as a public forum, together with those cases recognizing the existence of a public forum, albeit qualifiedly, evidence the desirability of a [p860] flexible approach to determining when public expression should be protected. Realizing that the permissibility of a certain form of public expression at a given locale may differ depending on whether it is asked if the locale is a public forum or if the form of expression is compatible with the activities occurring at the locale, it becomes apparent that there is need for a flexible approach. Otherwise, with the rigid characterization of a given locale as not a public forum, there is the danger that certain forms of public speech at the locale may be suppressed, even though they are basically compatible with the activities otherwise occurring at the locale.
Not only does the Court's forum approach to public speech blind it to proper regard for First Amendment interests, but also the Court forecloses such regard by studied misperception of the nature of the inquiry required in Flower. In particular, this Court found controlling in Flower the determination that the military command of Fort Sam Houston had "abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue." 407 U.S. at 198. That was to say that the virtually unrestricted admission of the public to certain areas of the Fort indicated that an exercise of public expression in those areas, such as distributing pamphlets, would not interfere with any military interests. Absent any interference, there could be no justification for selectively excluding every form of public expression, particularly a form no more disruptive than the civilian traffic already permitted. The abandonment required by Flower was not tantamount to a wholesale abdication of control, but rather was the yielding of base property to a use with which the exercise of the challenged form of public expression was not inconsistent. Thus, contrary to the Court's inaccurate reformulation, Flower did not go so far as to require [p861] that the military " [abandon] any right to exclude civilian vehicular and pedestrian traffic," ante at 835, or "[abandon] any claim of special interest in regulating" public expression before such expression would be permitted, ante at 837. The military certainly could retain the right to exclude civilian traffic, but it could not choose freely to admit all such traffic save for the traffic in ideas. And the military certainly could retain an interest in reasonably regulating, but not in absolutely excluding, public expression. The Government does have the power "to preserve the property under its control for the use to which it is lawfully dedicated," Adderley v. Florida, 385 U.S. 39, 47 (1966) (quoted ante at 836), provided the property remains so dedicated.
As applied in this case, the foregoing considerations require that the leaflet distribution activities proposed by respondents be permitted in those streets and lots unrestricted to civilian traffic. Those areas do not differ in their nature and use from city streets and lots where open speech long has been protected. Hague v. CIO, supra at 515. There is no credible claim here that distributing leaflets in those areas would impair to any significant degree the Government's interests in training recruits or, broadly, national defense. [n11] See United States v. United States District Court, 407 U.S. at 321. This case, therefore, is unlike Adderley v. Florida, supra. There, though this Court held that the First Amendment did not protect a civil rights demonstration conducted [p862] on a jailhouse driveway, the Court was careful to observe that the "particular jail entrance and driveway were not normally used by the public," 385 U.S. at 45, and that the jail custodian "objected only to [the demonstrators'] presence on that part of the jail grounds reserved for jail uses," id. at 47.
Unlike distributing leaflets, political rallies present some difficulty because of their potential for disruption even in unrestricted areas. But that a rally is disruptive of the usual activities in an unrestricted area is not to say that it is necessarily disruptive so as significantly to impair training or defense, thereby requiring its prohibition. Additionally, this Court has recognized that some quite disruptive forms of public expression are protected by the First Amendment. See Edwards v. South Carolina, 372 U.S. 229 (1963); Terminiello v. Chicago, 337 U.S. 1 (1949); Cantwell v. Connecticut, 310 U.S. 296 (1940). In view of respondents' willingness to submit to reasonable regulation as to time, place, and manner, it hardly may be argued that Fort Dix's purpose was threatened here. Without more, it cannot be said that respondents' proposed rally was impermissible.
It is no answer to say that the commander of a military installation has the "historically unquestioned power . . . to exclude civilians from the area of his command." Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 893 (1961). The Court's reliance on this proposition from Cafeteria Workers is misplaced. That case was only concerned with the procedural requisites for revocation of a security clearance on a military base, not with the range of permissible justifications for such revocation and, thereby, exclusion. Indeed, the "privilege" doctrine upon which rested the sweeping powers suggested by that case has long since been repudiated. Board of Regents v. Roth, 408 U.S. 564 (1972). But, more important, that decision specifically recognized that [p863] the Government was constrained by specific constitutional limitations, even in the exercise of its proprietary military functions. 367 U.S. at 897. Where the interference with Fort functions by public expression does not differ from that presented by other activities in unrestricted areas, the Fort command may no more preclude such expression, than "‘Congress may . . . "enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office."'" Ibid., quoting United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947).
Similarly, it is no answer to say that the proposed activities in this case may be excluded because similar forms of expression have been evenhandedly excluded. An evenhanded exclusion of all public expression would no more pass constitutional muster than an evenhanded exclusion of all Roman Catholics. In any event, there can be no assertion that evenhanded exclusion here has, in fact, been the case because, as the Court implicitly concedes, ante at 839, there have been no other instances where the privilege of engaging in public expression on the Fort was advanced.
Additionally, prohibiting the distribution of leaflets cannot be justified on the ground that that expression presents a "clear danger to [military] loyalty, discipline, or morale." Ante at 840. This standard for preclusion is, in the face of a well developed line of precedents, constitutionally inadequate. This Court long ago departed from "clear and present danger" as a test for limiting free expression. See Hess v. Indiana, 414 U.S. 105 (1973); Brandenburg v. Ohio, 395 U.S. 444 (1969); Edwards v. South Carolina, supra; Scales v. United States, 367 U.S. 203 (1961); Yates v. United States, 354 U.S. 298 (1957); Dennis v. United States, 341 U.S. 494 (1951). Yet the Court today, without reason, would fully reinstate that test and, indeed, would only require that the danger be clear, not even present. Ante at [p864] 840. As Mr. Justice Holmes observed in dissent better than a half century ago: "It is only the present danger of immediate evil or an intent to bring it about that warrants . . . setting a limit to the expression of opinion." Abrams v. United States, 250 U.S. 616, 628 (1919).
Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the [First Amendment].
Id. at 630-631. Accepting for the moment, however, the validity of a "clear danger" test, I do not see, nor does the Court's opinion demonstrate, how a clear danger is presented in this case. No one has seriously contended that the activities involved here presented such a danger to military loyalty, discipline, or morale. The response that no such showing was required in this case because respondents failed to furnish for prior approval the material they proposed for distribution will not suffice. [n12] I first note that, in view of the Court's essentially blanket preclusion of public expression from military installations, it is unnecessary for the Court [p865] to reach this issue -- save to the extent the Court unwittingly concedes the tenuousness of its total ban. Alexander v. Louisiana, 405 U.S. 625 (1972); Ashwander v. TVA, 297 U.S. 288, 346-348 (1936) (Brandeis, J., concurring). See Rescue Army v. Municipal Court, 331 U.S. 549 (1947). Most important, however, in advancing such a justification, the Court engages in a rude refusal even to acknowledge the firmly fixed limitation on governmental control of First Amendment activity afforded by the doctrine against prior restraints. The illegality of the restraint sought to be imposed in this case obviated any requirement that respondents submit to it, thereby risking irreparable injury to First Amendment interests. See New York Times Co. v. United States, 403 U.S. at 725-726, and n. (1971) (BRENNAN, J., concurring); Freedman v. Maryland, 380 U.S. 51 (1965).
Requiring prior approval of expressive material before it may be distributed on base constitutes a system of prior restraint, [n13] Freedman v. Maryland, supra; Times Film Corp. v. Chicago, 365 U.S. 43 (1961), a system "bearing a heavy presumption against its constitutional validity." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. at 558; New York Times Co. v. United States, supra, at 714; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931). "Our distaste for censorship -- reflecting the natural distaste of a free people -- is deep-written in our law." Southeastern Promotions, Ltd. v. Conrad, supra at 553. The Court's tacit approval of the prior restraint imposed under Fort Dix Reg. 210-27 is therefore deeply disturbing. Not only does the Court approve a procedure whose validity need not even be considered in this case, but also it requires no rebuttal of the heavy presumption against [p866] that validity, and I seriously doubt that the presumption would fall in this case.
First, while not every prior restraint is per se unconstitutional, the permissibility of such restraints has thus far been confined to a limited number of contexts. Southeastern Promotions, Ltd. v. Conrad, supra at 559. The imposition of prior restraints on speech or the distribution of literature in public areas has been consistently rejected, except to the extent such restraints sought to control time, place, and circumstance, rather than content. See Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Hague v. CIO, 307 U.S. 496 (1939); Lovell v. City of Griffin, 303 U.S. 444 (1938). Similarly, the content-oriented prior restraint of Reg. 210-27 has no place in the open areas of Fort Dix.
[t]he settled rule is that a system of prior restraint "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system."
Southeastern Promotions, Ltd. v. Conrad, supra at 559, quoting Freedman v. Maryland, supra at 58. But neither Fort Dix regulations nor any other applicable Army or Department of Defense guidelines require a prompt determination that publications may be distributed on the Fort. At the very least, therefore, there should be a requirement that the Fort commander promptly approve or disapprove publications proposed for distribution, lest failure to make a determination effectively result in censorship. See Blount v. Rizzi, 400 U.S. 410 (1971); Southeastern Promotions, Ltd. v. Conrad, supra; Freedman v. Maryland, supra.
The Court's final retreat in justifying the prohibitions upheld today is the principle of military neutrality. According to the Court, the military authorities of Fort Dix were free to pursue "the American constitutional tradition [p867] of a politically neutral military." Ante at 839. I could not agree more that the military should not become a political faction in this country. It is the lesson of ancient and modern history that the major socially destabilizing influence in many European and South American countries has been a highly politicized military. But it borders on casuistry to contend that, by evenhandedly permitting public expression to occur in unrestricted portions of a military installation, the military will be viewed as sanctioning the causes there espoused. [n14] If there is any risk of partisan involvement, real or apparent, it derives from the exercise of a choice, in this case, the Fort commander's choice to exclude respondents, while, for example, inviting speakers in furtherance of the Fort's religious program. [n15] Additionally, the Court would do well to consider the very real system of prior restraint operative at Fort Dix, for the very fact that literature distributed on the Fort is subject to that system fosters the impression that it is disseminated with a military imprimatur. [p868]
More fundamentally, however, the specter of partiality does not vanish with the severing of all partisan contact. It is naive to believe that any organization, including the military, is value-neutral. More than this, where the interests and purpose of an organization are peculiarly affected by national affairs, it becomes highly susceptible of politicization. For this reason, it is precisely the nature of a military organization to tend toward that end. [n16] That tendency is only facilitated [p869] by action that serves to isolate the organization's members from the opportunity for exposure to the moderating influence of other ideas, particularly where, as with the military, the organization's activities pervade the lives of its members. For this reason, any unnecessary isolation only erodes neutrality and invites the danger that neutrality seeks to avoid.
In Hudgens v. NLRB, ante, p. 507, as in today's decision, this Court recently moved to narrow the opportunities for free expression in our society. In Hudgens, the Court also preached of its institutional duty to declare overruled a case whose rationale did not survive that of a succeeding case. I would maintain that the Court's duty is to recognize the irreconcilability of two decisions and then to explain why it chooses one over the other. But accepting for the moment the Court's perception of its duty, I note that the Court today declines to overrule Flower. I presume, therefore, that some meaningful distinction must exist between that decision and today's. But if any significant distinction remains between the cases, it is that, in Flower, the private party was an innocuous leafleteer, and here the private parties include one of this country's most vociferous opponents of the exercise of military power. [n17] That [p870] is hardly a distinction upon which to render a decision circumscribing First Amendment protections.
I would, for these reasons, affirm the judgment of the Court of Appeals. [p872]
1. In support of its characterization of the record as "indisputably to the contrary," the Court points to the Fort commander's response to respondent Spock's initial request to campaign at the Fort. Ante at 837 n. 7. According to the Court, the commander's refusal to permit Spock's rally indicated that the military authorities had not "‘abandoned any claim [of] special interests in who walks, talks, or distributes leaflets. . . .'" See ante at 837, quoting Flower v. United States, 407 U.S. at 198. The commander's response, however, came subsequent to a history of unimpeded civilian access to Fort Dix. Thus, its after-the-fact, self-serving nature no more supports the assertion that the military authorities had not "abandoned any claim" than did the arrest of the defendant in Flower.
2. U.S.Const., Preamble. See also U.S.Const., Amdt. 1.
3. See, e.g., Buckley v. Valeo, ante p. 1; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); New York Times Co. v. United States, 403 U.S. 713 (1971); Cohen v. California, 403 U.S. 15 (1971); Brandenburg v. Ohio, 395 U.S. 444 (1969); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).
4. Indeed, as Mr. Chief Justice Warren observed in invalidating a portion of the Subversive Activities Control Act of 1950 as an unconstitutional abridgment of the First Amendment right of association:
[T]his concept of "national defense" cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term "national defense" is the notion of defending those values and ideals which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties -- the freedom of association -- which makes the defense of the Nation worthwhile.
United States v. Robel, 39 U.S. at 264.
5. The Court went on to observe and conclude:
These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government's position.
But we do not think a case has been made for the requested departure from Fourth Amendment standards. . . . We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case, we hold that this requires an appropriate prior warrant procedure.
* * * *
Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. . . .
407 U.S. at 319-321.
6. The concurring opinion of my Brother POWELL properly recognizes at least the need for careful inquiry in such cases. But I completely disagree with his characterization of the need to secure the Government's interest in a politically neutral military as an interest protected by prohibiting conduct of "symbolic incompatibility" with a military base. Ante at 844. I gather that, by this notion of "symbolic incompatibility," my Brother POWELL means only to accord recognition to the interest in neutrality, an interest qualitatively different from the more immediate functional interest in training recruits. I, of course, have no quarrel with recognition of the interest. See infra at 867. But that recognition as articulated by my Brother POWELL is so devoid of limiting principle as to contravene fundamentals of First Amendment jurisprudence. This Court many times has held protected by the First Amendment conduct which was "symbolically incompatible" with the activity upon which it impacted. See Spence v. Washington, 418 U.S. 405 (1974); Procunier v. Martinez, 416 U.S. 396 (1974); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Indeed, the very symbolisms of many of our institutions have been the subject of criticisms held to be unassailably protected by the First Amendment.
7. Spock and Hobson's letter, dated September 9, 1972, stated in pertinent part:
As presidential and vice-presidential candidates, we intend to visit Fort Dix to campaign among the servicemen and servicewomen there. Both the Peoples Party and the Socialist Workers Party are addressing themselves to the special issues facing U.S. soldiers. For this reason, we are bringing our respective campaigns wherever possible directly to the American G. I.
The recent decision allowing G. I.'s stationed in New Jersey to register and vote there will undoubtedly result in an increased number of registered voters at the base, and an increased interest in the presidential contest. For that reason we are especially looking forward to campaigning at Fort Dix.
* * * *
It is not our intention to disrupt the normal functioning of the base, and we will of course abide by any reasonable restrictions as to the time and places of our campaigning. Perhaps you would like to furnish us with a meeting hall or other such facility while we are on the post where we might address interested soldiers. We will want to distribute our literature and talk to the soldiers about the issues that concern them.
Our visit will take place on September 23, from about 10:30 A.M. to 2:00 P.M. If you have any questions concerning our plans, please contact us through our campaign offices.
1 App. 12-13.
8. Brief for Respondents 23, 25-26.
9. See id. at 25-26.
10. Significantly, the Court observed in Tinker:
There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work, or of collision with the rights of other students to be secure and to be let alone.
393 U.S. at 508.
11. The only threat to their "mission" that military officials were able to articulate consisted of concerns that distributing leaflets or having a rally could possibly create crowds, engender partisan discussion, start an argument, or incite riots. E.g., 1 App. 43-46, 449, 50-51, 64. "But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker v. Des Moines School Dist., 393 U.S. at 508.
12. The Court further observes that the noncandidate respondents were also
excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution.
Ante at 840. This justification is wholly inadequate. It assumes that prior approval could have been validly required the first time respondents were excluded. As argued in the text, this page and 865-866, that assumption is incorrect. But even if it is correct, failure once to have sought approval clearly may not, of itself, justify exclusion when approval is sought on a subsequent occasion. First, 18 U.S.C. § 1382 only prohibits unapproved reentry of those who have once been excluded from a military base; it does not give a base commander warrant for excluding such individuals on all future occasions. Second, if the activity for which those individuals seek subsequent approval is protected by the First Amendment, the fort commander may no more disapprove that activity because of the past transgression than prohibit a person once convicted of selling obscene material from future sales of Lady Chatterley's Lover.
13. Where a demonstrator seeks use of an area serving an inconsistent use, however, the restraint then permissible is, of course, not only prior, but absolute.
14. As I observed in dissenting from this Court's decision upholding the preclusion of political, but not commercial, advertisement from municipally run buses:
"The endorsement of an opinion expressed in an advertisement on a motor coach is no more attributable to the transit district than the view of a speaker in a public park is to the city administration or the tenets of an organization using school property for meetings is to the local school board." Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 61, 434 P.2d 982, 989 (1967). The city has introduced no evidence demonstrating that its rapid transit passengers would naively think otherwise. And though there may be "lurking doubts about favoritism," ante at 304, the Court has held that "[n]o such remote danger can justify the immediate and crippling impact on the basic constitutional rights involved in this case." Williams v. Rhodes, 393 U.S. at 33.
Lehman v. City of Shaker Heights, 418 U.S. 298, 321 (1974).
15. 1 App. 555.
16. The testimony in the District Court of the officer representing the commanding officer of Fort Dix is exemplary:
Q I see. Well, doesn't the war with Vietnam deal with your mission ?
A Oh, yes.
Q Well, what I guess I am trying to get at is isn't it true that the content of what a proposed visitor intends to say is the basis for whether he is allowed to come on or not? If, for instance, he says "I intend to urge the soldiers not to use drugs," that, from what you have said, would be something that the Base might favorably look on. If he is going to inform them of some management principle that they are not aware of --
A That would further our mission, yes.
Q But if they are to speak against the war in Vietnam --
A That certainly wouldn't forward our mission, would it?
Q So the content of what they are to say, that is the basis of whether or not they are approved?
A Yes, to a great extent.
1 App. 64.
It appears highly likely . . . that the military in the post-Vietnam period will increasingly diverge along a variety of dimensions from the mainstream of developments in the general society.
Moskos, Armed Forces and American Society: Convergence or Divergence?, in Public Opinion and the Military Establishment 271, 277 (C. Moskos ed.1971). "[T]he military is undergoing a fundamental turning inward in its relations to the civilian structures of American society." Ibid.
[T]he probability of sustained internal agitation or even questioning of the military system is unlikely once the war in Southeast Asia ends. With the advent of a curtailed draft or all-volunteer force, the military will find its membership much more acquiescent to established procedures and organizational goals. Without broadly based civilian representation, the leavening effect of recalcitrant servicemen -- drafted enlisted men and ROTC officers -- will be no more. It appears that, while our civilian institutions are heading toward more participative definition and control, the post-Vietnam military will follow a more conventional and authoritarian social organization. . . .
Id. at 292.
17. My Brother POWELL's concurrence correctly so highlights this case:
Traditionally, candidates for office have observed scrupulously the principle of a politically neutral military, and have not sought to identify or canvass a "military vote."
Ante at 846. I do not believe, however, that the principle of military neutrality goes so far as to control the content or the audience of address of political speech. And I can think of no poorer warrant for abridging the values protected by the First Amendment than tradition. The principle of military neutrality is concerned not with precluding exposure of the military to political issues, but with preventing the military from becoming a political faction by its very isolation from political discourse or selective exposure to such discourse. See n. 16, supra. To be sure,
[a]lthough the recruits may be exposed through the media and, perhaps, the mail to all views in civilian circulation, face-to-face persuasion by someone who urges, say, refusal to obey a superior officer's command, has an immediacy and impact not found in reading papers and watching television.