477 F.2d 1237 (D.C. Cir. 1973), 71-1841, Avrech v. Secretary of Navy

Docket Nº:71-1841.
Citation:477 F.2d 1237
Party Name:Mark AVRECH, Appellant, v. The SECRETARY OF the NAVY.
Case Date:March 20, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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477 F.2d 1237 (D.C. Cir. 1973)

Mark AVRECH, Appellant,



No. 71-1841.

United States Court of Appeals, District of Columbia Circuit.

March 20, 1973

Argued Dec. 5, 1972.

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Dorian Bowman, New York City, and David Rein, Washington, D. C., for appellant.

Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Michael A. Katz and James F. McMullin, Asst. U. S. Attys., for appellee.

Before Mr. Justice CLARK, [*] and WRIGHT and WILKEY, Circuit Judges.

Mr. Justice CLARK:

Appellant, Mark Avrech, brought this suit seeking a declaration that his 1969 court-martial conviction was constitutionally invalid under the First and Fifth Amendments and an order that the conviction be expunged from his military record and that he recover all pay and benefits lost by reason of the conviction. 1 Avrech was convicted of violating Article 134 of of the Uniform Code of Military Justice, known as the

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"General Article, " 2 which imposes criminal sanctions on "all disorders and neglects to the prejudice of good order and discipline in the armed forces" and "all conduct of a nature to bring discredit upon the armed forces." 3 More specifically, Avrech was charged with attempting to publish and publishing a statement disloyal to the United States, with design to promote disloyalty and disaffection among the troops. After pleading not guilty, he was acquitted of publishing but found guilty of attempting to publish the statement. He complains that the language of Article 134 is unconstitutionally vague and overbroad under the Fifth Amendment in that the Article did not give him fair notice that his contemplated statement was forbidden; he also urges that his statement was protected free speech under the First Amendment. The District Court upheld his conviction. We reverse on the Fifth Amendment ground.

1. Background of the Prosecution:

Avrech enlisted in the Marines in 1967 and was sent to Vietnam in February, 1969, with the rank of private first class. While stationed at Danang and on night duty with the group supply offices, Avrech typed up a stencil criticizing American involvement in Vietnam. It stated:

"I've been in this country now for 40 days and I still don't know why I'm here. I've heard all the arguments about communist aggression and helping the poor defenseless people. I've also heard this three years ago. The entire Vietnamese Army will switch to a pacification role in 1967 and leave major fighting to the American troops. (Statement of South Vietnamese Foreign Minister, L. A. Times, Nov. 18, 1966.) It seems to me that the South Vietnamese people could do a little for the defense of their country. Why should we go out and fight their battles while they sit home and complain about communist aggression. What are we cannon fodder or human beings? If South Vietnam was willing to go it on their own back in 1964 what the hell is the matter with them now? The United States has no business over here. This is a conflict between two different politically minded groups. Not a direct attack on the United States. It's not worth killing American boys to have Vietnam have free elections. (Former Vice President Richard M. Nixon, L. A. Times, December 31, 1967.) That was our present leader of this country and now he has the chance to do something about the situation and what happens. We have peace talks with North Vietnam and the V.C. That's just fine and dandy except how many men died in Vietnam the week they argued over the shape of the table? Why does this country think that it can play games with peoples lives and use them to fight their foolish wars, I say foolish because

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how can you possibly win anything like a war by destroying human lives. Human lives that have no relation at all to the cause of the conflict. Do we dare express our feelings and opinions with the threat of court-martial perpetually hanging over our heads? Are your opinions worth risking a court-martial? We must strive for peace and if not peace then a complete U.S. withdrawal. We've been sitting ducks for too long. ***** * SAM*"

Sometime thereafter Avrech asked his immediate superior, Corporal William R. Jackson, who was operating the mimeograph machine in their office, to duplicate the statement or permit him to do so. When Jackson inquired as to the content of the stencil, Avrech replied: "If I tell you that you won't let me run it off." Jackson then refused. Later Avrech let Jackson read the stencil; the latter reproached Avrech and subsequently turned it over to a superior officer. This prosecution folllowed.

Avrech was sentenced to confinement at hard labor for one month, reduction in rank, and forfeiture of pay for three months. The Commanding Officer suspended the confinement but the remainder of the sentence was sustained by the Staff Judge Advocate and the Judge Advocate General of the Navy. On June 26, 1970, Avrech received a bad conduct discharge after a second and unrelated special court-martial conviction for having stolen a camera from the Navy Exchange. The Navy Court of Military Review, in ordering the discharge, took into account Avrech's conviction here under attack.

The District Court granted the Government's motion for summary judgment, holding that Avrech's statement was not protected by the First Amendment and that Article 134 provides a sufficiently definite warning as to the proscribed conduct and a sufficiently ascertainable standard of guilt to survive the constitutional vagueness challenge.

2. History and Components of Article 134:

We need not pause to detail the history of Article 134. Its antecedents go back to British military sources prior to American Independence. In this country the Constitution entrusted to the Congress the power "to make Rules for the Government and Regulation of the land and naval Forces, " Article I, § 8, Cl. 14. In 1950, pursuant to this grant...

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