Carlson v. Schlesinger

• Decision Date: 19 June 1975
• Docket Number: No. 73--2170,73--2170
• Citation: 167 U.S.App.D.C. 325,511 F.2d 1327
• Parties: James Edward CARLSON et al. v. James R. SCHLESINGER, Secretary of Defense, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1327

511 F.2d 1327

167 U.S.App.D.C. 325

James Edward CARLSON et al. v. James R. SCHLESINGER, Secretary of Defense, et al., Appellants.

No. 73--2170.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 13, 1975.

Decided April 25, 1975.

Rehearing and Rehearing En Banc

Denied June 19, 1975.

Robert S. Greenspan, Atty., Dept. of Justice, of the bar of the Supreme Court of New York, pro hac vice, by special leave of Court for appellants. Carla A. Hills, Asst. Atty. Gen., Earl J. Silbert, U.S. Atty., and Robert E. Kopp, Atty., U.S. Dept. of Justice, were on the briefs for appellants. Harold H. Titus, Jr., U.S. Atty., at the time the record was filed, and Michael A. Katz, Asst. U.S. Atty., entered appearances for appellants.

Joel M. Gora, New York City, with whom Melvin L. Wulf, New York City, and David Addlestone, Washington, D.C., were on the brief for appellees.

Before BAZELON, Chief Judge, TAMM, Circuit Judge, and RICHEY, ^* United States District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge TAMM.

Dissenting opinion filed by Chief Judge BAZELON.

TAMM, Circuit Judge:

Plaintiffs-appellees James Carlson, Richard Randig, and William Daniels, Jr., former servicemen who were stationed in Vietnam during the period of United States combat operations there, brought suit in district court for declaratory and equitable relief. They alleged: 1) that their arrests for circulating petitions on two Air Force bases in South Vietnam without permission were illegal and should be expunged because the operative Air Force regulations violated the first amendment; 2) that the refusal of their respective commanders to permit them to solicit signatures infringed upon their first amendment rights; and 3) that the regulations upon which the commanders relied were facially overbroad and unconstitutional. Upon cross-motions for summary judgment, the district court found for appellees. Carlson v. Schlesinger, 364 F.Supp. 626 (D.D.C.1973). We reverse.

I

The facts of this controversy are fully described in the district court's opinion and need only be summarized here. Appellee Carlson, an enlisted member of the United States Navy, engaged in his challenged activity at Tan Son Nhut Air Base, Vietnam, headquarters of the United States Seventh Air Force, occupied by over 10,000 American service personnel. Tan Son Nhut was heavily fortified and located amidst an area of substantial combat. A. 84--88.

On October 10, 1971 Carlson, off-duty but dressed in uniform, solicited signatures in front of the main post exchange for a petition to Congress expressing opposition to American involvement in the Vietnam war. A. 74. ¹ At approximately 3:00 p.m., three Air Force security policemen apparently acting upon an anonymous complaint, arrested Carlson. The petitions were confiscated, and, Carlson was taken to the base police station where he was informed that he would be charged with 'soliciting signatures for an unauthorized petition' ² in violation of Air Force Regulation (AFR) 30--1(9). ³ A. 74--75.

Several days later, Carlson returned to the base to request permission to solicit signatures; he spoke with the deputy base commander, Colonel Jensen, who orally denied the request. A. 75. Carlson subsequently wrote to the base commander, Colonel Gunn, for authorization, but Colonel Gunn formally denied permission. ⁴

Appellees Randig and Daniels were stationed at Cam Rahn Bay Air Base, Vietnam. The base, located on a peninsula, was the duty station of several United States Air Force units and served as a major port of entry and stockpile for ammunition and supplies. A. 93--95. The base had been the target for both enemy rocket and ground attacks. A. 95.

On December 4, 1971, Randig, off-duty and not in uniform, gathered signatures at the Air Force Hospital. A. 78. After phone calls by soldiers objecting to his activity, he was arrested by military police and confined for two hours. The base commander, Colonel Fitzgerald, told Randig that he was charged with 'soliciting signatures for an unauthorized petition.' Randig was informed that he would not be prosecuted and was released. A. 78. ⁵

Five days later, appellees Randig and Daniels addressed a letter to Colonel Fitzgerald seeking authorization to circulate the petition and setting forth a number of restrictions they volunteered to obey. A. 40--41, 69--70. In a written response, the commander denied the request. ⁶ Thereafter, all three appellees, while still servicemen, instituted a class action for injunctive and declaratory relief.

Relying substantially on this court's decision in Avrech v. Secretary of Navy, 155 U.S.App.D.C. 352, 477 F.2d 1237 (1973) before its reversal by the Supreme Court, and before the Court decided Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), the district court, upon cross-motions for summary judgment, found for appelles. The court first held that the case was not moot, as while at that point appellees had left the service, 'the constitutional violations complained of are capable of being repeated as long as the challenged regulations remained in force,' 364 F.Supp. at 630. The court then held that appellees' arrests violated the first amendment in that AFR 30--1(9) was an impermissible prior restraint because the guiding standards of AFR 35--15 were vague and overbroad and permitted commanders to make arbitrary and capricious determinations. Id. at 632--33. Moreover, the court found an independent infringement of appellees' first amendment rights in that the commanders committed an 'abuse of command discretion' in prohibiting solicitation. Id. at 637. Finally, both regulations were found to be unconstitutionally overbroad on their face as an infringement of legitimate first amendment activity. The court ordered the records of appellee Carlson's detention expunged. Id. at 640.

II

Were this case set in a civilian setting, the actions taken by the governmental authorities would run afoul of the first amendment. However, we are undeniably dealing with the military, and the Supreme Court has recently instructed that, '(w)hile the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections.' Parker v. Levy, supra, 417 U.S. at 758, 94 S.Ct. at 2563. See also Dash v. Commanding General, 307 F.Supp. 849 (D.S.C.1969), aff'd, 429 F.2d 427 (4th Cir. 1970), cert. denied, 401 U.S. 981, 91 S.Ct. 1192, 28 L.Ed.2d 333 (1971). To strike the proper balance between legitimate military needs and individual liberties we must inquire whether 'conditions peculiar to military life' dictate affording different treatment to activity arising in a military context. Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991, 997 (1969), cert, denied, 396 U.S. 1013, 90 S.Ct. 572, 24 L.Ed.2d 505 (1970).

To approach plaintiffs-appellees' claims properly requires that we separate the two pairs of events in question. Appellees allege two independent infringements of their constitutional rights--their arrest or detention for soliciting signatures without the prior approval required by AFR 30--1(9) and the subsequent refusals of Colonels Gunn and Fitzgerald to grant such approval on the basis of AFR 35--15. Therefore, we must undertake to analyze each event against appropriate constitutional standards.

It is axiomatic that the Government may reasonably regulate the 'time, place, and manner' of first amendment activity. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Police Department of Chicago v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Cox v. New Hampshire, 312 U.S. 569, 575--76, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Moreover, the greater the government's legitimate interests, the greater must be the government's latitude to prescribe reasonable regulations. Compare Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) with Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). Clearly beyond peradventure that governmental interest is manifest in the context of a military combat zone--a condition peculiar to the military which justifies differing treatment. In such a context, we believe the requirement that a serviceman obtain his commander's approval before circulating a petition is eminently reasonable; the exigencies of the combat mission can yield no other result.

Hence, we must conclude that the arrests of the servicemen in this case did not violate the first amendment. The record reveals beyond dispute that both arrests occurred in Vietnam, a combat arena. Appellee Carlson was arrested at Tan Son Nhut Air Base, occupied by tactical and combat troops and the scene itself of enemy rocket, anti-aircraft, and combat attacks. A. 85--88. Similarly, appellee Randig was arrested at Cam Ranh Bay Air Base, also a base for tactical and combat units and one that housed stockpiles of major stores of ammunition. In fact, the base had been directly attacked on several occasions, and the enemy had once succeeded in breaking through base defenses and destroying 75 percent of the stored ammunition. A. 93--96. Moreover, the record is clear that the reasons for the arrests were appellees' failure to obtain prior approval. Carlson himself testified that he was informed that he was charged with 'soliciting signatures for an unauthorized petition;' appellee Randig was informed by the base commander of the identical charge the day of his arrest. We hold that AFR 30--1(9) was properly invoked against appellees and that the government's actions in detaining appellees abridged no cognizable first amendment interest.

The second pair of events relate to appellees' inability to obtain permission from the base commanders to circulate their petitions....