Brown v. Palmer

• Decision Date: 10 September 1991
• Docket Number: No. 88-2450,88-2450
• Citation: 944 F.2d 732
• Parties: Joan BROWN; Donna R. Johnson; Susan Matarrese; Geoffrey Parker; Mary Lynn Sheetz; Peter Sprunger-Froese, Plaintiffs-Appellees, v. Colonel James O. PALMER, Base Commander of Peterson Air Force Base, Colorado, and Colonel Eugene T.M. Cullinane, Commander, Headquarters, 3rd Space Support Wing (Afspacecom) Peterson Air Force Base, Colorado, as officers and agents of the United States Air Force, an agency of the United States of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 732

944 F.2d 732

Joan BROWN; Donna R. Johnson; Susan Matarrese; Geoffrey Parker; Mary Lynn Sheetz; Peter Sprunger-Froese Plaintiffs-Appellees, v. Colonel James O. PALMER, Base Commander of Peterson Air Force Base, Colorado, and Colonel Eugene T.M. Cullinane Commander, Headquarters, 3rd Space Support Wing (Afspacecom) Peterson Air Force Base, Colorado, as officers and agents of the United States Air Force, an agency of the United States of America, Defendants-Appellants.

No. 88-2450.

United States Court of Appeals Tenth Circuit.

Sept. 10, 1991.

Patricia M. Bryan (Stewart M. Gerson, Asst. Atty. Gen., Washington, D.C., Michael J. Norton, U.S. Atty., Denver, Colo., and Anthony J. Steinmeyer and Alfred Mollin, Attys., Appellate Staff, Civ. Div., U.S. Dept. of Justice, Washington, D.C., on the briefs), for defendants-appellants.

Newman E. McAllister, (L. Douglas Beatty, with him on the brief), Colorado Springs, Colo., for plaintiffs-appellees.

Hilary Holland, Westminster, Colo. and David Miller, Denver, Colo., filed a brief for amicus curiae American Civ. Liberties Union of Colorado.

Before HOLLOWAY, McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY and EBEL, Circuit Judges.

ON REHEARING EN BANC

EBEL, Circuit Judge.

On October 3, 1990, a panel of this court by majority vote held that Peterson Air Force Base was not a public forum during the open house days that it held in 1985 and 1986 to celebrate Armed Forces Day. Accordingly, we upheld bar letters that had been issued by Peterson AFB against plaintiffs-appellees as a result of their activity in distributing anti-war leaflets during those open houses. Brown v. Palmer, 915 F.2d 1435 (10th Cir.1990). Our decision reversed the judgment of the district court which had concluded, upon cross-motions for summary judgment and a largely undisputed and stipulated record, that Peterson AFB should be characterized as a "public forum" during its 1985 and 1986 Armed Forces Day celebrations.

Following our panel decision, appellees petitioned this court for rehearing en banc, and we granted that petition. The thrust of the appellees' argument on rehearing was that the "objective" evidence of what actually occurred at the open houses was sufficient to establish that Peterson AFB was a public forum during the open house events, notwithstanding the subjective testimony of Air Force personnel that they never intended to open up the base to public discussion of political or ideological topics. Appellees also challenged what they perceived to be the panel's determination that military bases should be accorded special status for purposes of analyzing whether they are public fora. Finally, appellees claim that the panel improperly substituted its judgment for that of the district court and that it erred in holding that the Air Force's restrictions on political and ideological speech were viewpoint neutral.

We reaffirm our previous panel opinion and do not here repeat either the facts or the legal analysis contained in that opinion. This en banc opinion shall only respond to the specific arguments raised by appellees in their petition for rehearing. ¹ Appellees do not challenge the panel's ruling that the ultimate determination of whether Peterson AFB was converted into a public forum during its open houses depends upon the intent of the Air Force. Appellees' Supplemental Brief at p. 2-3, 8. Indeed, the appellees could not argue otherwise in light of rulings both from the United States Supreme Court and from our court. Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985) ("The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse.") (emphasis added); United States v. Albertini, 472 U.S. 675, 686, 105 S.Ct. 2897, 2905, 86 L.Ed.2d 536 (1985); Barnard v. Chamberlain, 897 F.2d 1059, 1064 (10th Cir.1990).

Instead, appellees' principal argument on rehearing is that the panel opinion gave undue weight to the affidavits of the Base Commander at Peterson AFB and the Air Force Chief of Staff as to their intent without adequately considering objective evidence of intent based upon the activities that were actually permitted during the open houses. In this regard, appellees misperceive our panel opinion. While it is true that we did look to the affidavits as some evidence of the Air Force's intent, we also looked to the objective evidence of what, in fact, was permitted to occur at the open houses. After reviewing all of the evidence, we concluded that there was a "lack of any evidence" establishing that the Air Force intended to open Peterson AFB to political or ideological debate. Brown v. Palmer, 915 F.2d at 1443. Intent can be discerned both by direct testimony and by indirect evidence of conduct. Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449 ("the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum"). We looked at, and considered, all of the evidence in the record in reaching our conclusion that there was no evidence that the Air Force intended to open Peterson AFB to public political and ideological debate during its open houses.

Appellees wrongly assume that just because the Air Force opened up Peterson AFB to some topics of speech and activity and invited the public onto the base that the Air Force should be deemed to have opened the base to all topics of speech and conduct. That is simply not the law. The Supreme Court has made it abundantly clear that the government may selectively preclude discussion of certain general topics while nevertheless inviting the public onto its premises to participate in speech on a variety of other topics.

In Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), a municipal mass transit authority permitted advertising within its cars on all subjects except for political advertising. It accepted advertising from retail and service establishments, churches, and civic and public service groups. In addition, of course, the mass transit authority solicited the entire public to enter upon, and to use, its mass transit facilities. Notwithstanding these facts, the Supreme Court concluded that the mass transit authority could, consistent with the First and Fourteenth Amendments, exclude political advertisements.

In Perry Education Ass'n. v. Perry Local Educators' Ass'n., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Court held that a public school district's internal mail system had not become a designated public forum even though the mail system was made available to the union that represented the school employees, the YMCA, Cub Scouts, and other civic and church organizations. The Court upheld the right of the school district to exclude from the mail system a second union which wanted to use that facility for organizing efforts. The Court stated that "selective access did not transform government property into a public forum." Id. at p. 47, 103 S.Ct. at p. 956. Because the school district continued to exercise the right to exclude certain entities from use of its internal mail system, that facility could not be deemed to be a public forum. The school district's policy of excluding an unauthorized union from use of its mail system while allowing its exclusive bargaining agent to use the mail system was held to be reasonable and rationally related to a legitimate school district purpose. Accordingly, the school district's power to exclude the unauthorized union was upheld.

In Cornelius, 473 U.S. 788, 105 S.Ct. 3439, the NAACP Legal Defense Fund and other political lobbying groups sought access to government employees through the Combined Federal Campaign (CFC) in order to solicit contributions and to explain their mission. The NAACP Legal Defense Fund argued that the CFC was a public forum because it allowed numerous charities to participate in its campaign. The Supreme Court disagreed, noting that the CFC had chosen to exclude all political advocacy groups, and thus, CFC remained a nonpublic forum. The Court held that it was reasonable for the CFC to exclude political advocacy groups in order to eliminate controversy and in order to avoid the reality or appearance of government entanglement with particular political viewpoints. Thus, the Court upheld the right of CFC to exclude the NAACP Legal Defense Fund.

In United States v. Kokinda, --- U.S. ----, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), the United States allowed various groups to distribute leaflets, speak, and picket on the premises of a post office. The government even allowed political statements to be posted on a bulletin board at the post office. However, it did not allow solicitations for money. A group wished to solicit money for political purposes on a sidewalk which was constructed on postal property and which was the means of public access to the post office from the adjacent parking lot. That group claimed, in part, that the sidewalk had become a public forum by virtue of the fact that the public had been invited to use the sidewalk and non-solicitation activities were allowed on those premises. The Supreme Court disagreed. It held: "Even conceding that the forum had been dedicated to some First Amendment uses, and thus is not a purely non-public forum, regulation of the reserved non-public uses would still require application of the reasonableness test." Id. 110 S.Ct. at 3121 (emphasis added). The Court concluded that it was reasonable to exclude solicitations for funds because of the disruptive nature of that expressive activity. Thus, the Court upheld that exclusionary regulation by the Postal Service.

If anything, the Supreme Court has been even more accepting of selective restrictions on military bases. In Greer...