424 U.S. 828 (1976), 74-848, Greer v. Spock

Docket Nº:No. 74-848
Citation:424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505
Party Name:Greer v. Spock
Case Date:March 24, 1976
Court:United States Supreme Court

Page 828

424 U.S. 828 (1976)

96 S.Ct. 1211, 47 L.Ed.2d 505

Greer

v.

Spock

No. 74-848

United States Supreme Court

March 24, 1976

Argued November 5, 1975

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

Fort Dix, a federal military reservation devoted primarily to basic training for newly inducted Army personnel, and over which the Government exercises exclusive jurisdiction, permits free civilian access to certain unrestricted areas. However, post regulations ban speeches and demonstrations of a partisan political nature and also prohibit the distribution of literature without prior approval of post headquarters. Pursuant to these regulations, the commanding officer of Fort Dix rejected the request of respondent candidates for President and [96 S.Ct. 1213] Vice President to distribute campaign literature and hold a political meeting on the post and the other respondents, who had been evicted on several occasions for distributing literature not previously approved, were barred from reentering the post. Respondents brought suit to enjoin enforcement of these regulations on the ground that they violated the First and Fifth Amendments. The District Court issued an 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, and the Court of Appeals affirmed.

Held:

1. The regulations are not constitutionally invalid on their face. Since under the Constitution it is the basic function of a military installation like Fort Dix to train soldiers, not to provide a public forum, and since, as a necessary concomitant to this basic function, a commanding officer has the historically unquestioned power to exclude civilians from the area of his command, any notion that federal military installations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is false, and therefore respondents had no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix. Flower v. United States, 407 U.S. 197, distinguished. Pp. 834-838.

2. Nor were the regulations unconstitutionally applied under the circumstances of this case. Pp. 838-840.

Page 829

(a) As to the regulation banning political speeches and demonstrations, there is no claim that the military authorities discriminated in any way among candidates based upon the candidates' supposed political views; on the contrary, it appears that Fort Dix has a policy, objectively and evenhandedly applied, of keeping official military activities there wholly free of entanglement with any partisan political campaigns, a policy that the post was constitutionally free to pursue. Pp. 838-839.

(b) As to the regulation governing the distribution of literature, a military commander may disapprove only those publications that he perceives clearly endanger the loyalty, discipline, or morale of troops on the base under his command, and, while this regulation might in the future be applied irrationally, invidiously, or arbitrarily, none of the respondents even submitted any material for review, and the noncandidate respondents had been excluded from the post because they had previously distributed literature there without attempting to obtain approval. P. 840.

502 F.2d 953, reversed.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 840. POWELL, J., filed a concurring opinion, in Part III of which BURGER, C.J., joined, post, p. 842. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 849. MARSHALL, J., filed a dissenting opinion, post, p. 872. STEVENS, J., took no part in the consideration or decision of the case.

Page 830

STEWART, J., lead opinion

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.1 Civilian vehicular traffic is permitted on paved roads within [96 S.Ct. 1214] 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.

Page 831

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.2

Page 832

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 [96 S.Ct. 1215] 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'

Page 833

request, relying on Fort Dix Regs. 2126 and 2127.3 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.4

On September 29, 1972, the respondents filed this suit in the United States District Court for the District of

Page 834

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 1047.5 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,6 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.

[96 S.Ct. 1216] 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.

Page 835

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...

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