Dash v. Commanding General, Fort Jackson, South Carolina, Civ. A. No. 69-303.

• Decision Date: 19 December 1969
• Docket Number: Civ. A. No. 69-303.
• Citation: 307 F. Supp. 849
• Parties: Stephen DASH, Mance Sewell, Alvin M. Webb, Edilberto Chaparro, Joseph F. Cole, Andrew C. Pulley, Hubert L. Gilliard, Eugene J. Rudder, Curtis E. Mays and Joseph Miles, Plaintiffs, v. The COMMANDING GENERAL, FORT JACKSON, SOUTH CAROLINA, and Secretary of the Army, Washington, D. C., Defendants.
• Court: U.S. District Court — District of South Carolina

307 F. Supp. 849

Stephen DASH, Mance Sewell, Alvin M. Webb, Edilberto Chaparro, Joseph F. Cole, Andrew C. Pulley, Hubert L. Gilliard, Eugene J. Rudder, Curtis E. Mays and Joseph Miles, Plaintiffs, v. The COMMANDING GENERAL, FORT JACKSON, SOUTH CAROLINA, and Secretary of the Army, Washington, D. C., Defendants.

Civ. A. No. 69-303.

United States District Court D. South Carolina, Columbia Division.

December 19, 1969.

Thomas Broadwater. Columbia, S. C., Leonard B. Boudin, Dorian Bowman, New York City, Rabinowitz, Boudin & Standard, New York City, David Rein, Washington, D. C., and Howard Moore, Jr., Atlanta, Ga., for plaintiffs.

Joseph O. Rogers, Jr., U. S. Atty., Wistar D. Stuckey, Asst. U. S. Atty., Columbia, S. C., and Arnold I. Melnick, LTC, JAGC, (of counsel), Fort Jackson, S. C., for defendants.

OPINION and ORDER

DONALD RUSSELL, District Judge.

This is an action for a declaratory judgment. The plaintiffs were at the time of the commencement of the action non-commissioned servicemen stationed at Fort Jackson, South Carolina. Their action is filed not only on their behalf but also on behalf of all enlisted personnel at such base and seeks a declaration of their constitutional rights of free speech under the Federal Constitution.

The record refers to a number of constitutional rights, which the plaintiffs claim the defendants, the Commander of the Post, and the Secretary of the Army, violated. For purposes of this proceeding, however, the plaintiffs, through their counsel, limit their claim of constitutional deprivation to two matters:¹ (1) The regulation of the Post Commander, restricting the distribution of published materials on post; and (2) The refusal of the Post Commander to grant the plaintiffs' request to have a public, open meeting on base for the free discussion of the Vietnam war and other complaints connected therewith, as requested by a petition presented to such commander.

The circumstances that gave rise to this controversy are not disputed. They were established either by stipulation of facts or by evidence taken before me. On the basis of such record so established, both parties seek summary judgment, contending rightly that, basically, the issue is one of law, involving the constitutional rights of servicemen.

The plaintiffs—or, at least, some of them—prepared and distributed a petition requesting the Post Commander to allow them to have an open, public meeting on base for the purpose of "freely discuss(ing) the legal and moral questions related to the war in Vietnam and to the civil rights of American citizens both within and outside the armed forces." The petition stated it to be their "intention to hold a peaceful, legal meeting open to any enlisted man or officer at Fort Jackson." They professed a desire "only to exercise the rights guaranteed to us as citizens and soldiers by the First Amendment to the U. S. Constitution." Some twelve non-commissioned servicemen signed such petition. It was presented at the office of the Post Commander, who, through an aide, refused to accept it, stating that the Army did not engage in "collective bargaining". Some days before this, an impromptu open discussion of the Vietnam war was held outside the quarters occupied by a number of the plaintiffs. In this discussion, a substantial number of servicemen took part. Considerable acrimony developed; threats were exchanged; fighting began; officers were disobeyed; and complete disciplinary control of the servicemen was for a time lost.

The Post Commander prior to the commencement of this action, issued a regulation limiting the right to distribute pamphlets on the base. This regulation, the validity of which is challenged by the plaintiffs, is as follows:

"Distribution of publications such as books, periodicals, pamphlets, handbills, flyers, advertisements, and similar printed material at Fort Jackson may not be made except through regularly established and approved distribution outlets unless prior approval is obtained from the installation commander or his authorized representative. Approved outlets are the Post Exchange and its branches, the Post Library, and the official offices and designated agencies of the installation. Individuals desiring to distribute unofficial publications of any kind within the reservation will submit copies to G1 for approval by the Commanding General prior to effecting dissemination."

So far as the record indicates, none of the plaintiffs had been denied the right to distribute any pamphlet on base. In fact, there is no showing that the Post Commander had ever exercised his authority under this regulation.

Since the commencement of this action, all of the plaintiffs have either been released by the Army or been transferred to other bases.

The defendants contend, in limine, (1) that, since the real plaintiffs concerned with a violation of alleged constitutional rights have either been discharged or transferred to other posts the proceeding is moot, and (2) that the plaintiffs have failed to exhaust their military remedies and that, absent such exhaustion, jurisdiction does not vest in this Court.

Neither preliminary objection raised by the defendants is, in my opinion, meritorious. The issues posed are continuing ones, involving restraints not alone on the plaintiffs but on all noncommissioned personnel, present or future, at the base. If, by either the release or transfer of the plaintiffs, the power of the Court to resolve such issues could be destroyed, the rights asserted by the plaintiffs might never be determined since the defendants, who control such releases or transfers, could effectively prevent a review of their actions. Under such circumstances where the problem is "capable of repetition, yet evading review", the mere transfer or release of all or a part of the plaintiffs will not render the proceedings moot. Moore v. Ogilvie (1969) 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1; cf., Hall v. Beals (1969) 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214, filed November 24, 1969.

Similarly, it is obvious that there is no recourse for the plaintiffs within the military hierarchy. The plaintiffs, for all practical purposes, have exhausted every administrative remedy available to them within the military. Further action in this regard would be futile in any attempt by the plaintiffs to assert First Amendment rights. The courts are appropriately available to them now for the vindication of such rights, if rights they have. See, United States ex rel. Brooks v. Clifford (4th Cir. 1969) 409 F.2d 700, rehearing denied 409 F.2d 700.

Turning to the merits of this controversy:

At the outset it should be noted that a serviceman's right of free speech is not absolute.² With his induction into military service, he "necessarily accepts some abridgment of his right of free speech."³ Thus, in a recent attempt to order and rationalize existing decisions interpreting the First Amendment, a thoughtful commentator explicitly refrained from incorporating the military into the general scheme of such rights, remarking that, "To a certain extent, at least, the military sector or society must function outside the realm of democratic principles, including the principle of freedom of expression" and, "Certainly, members of the armed forces, at least when operating in that capacity, can be restricted in their right to open discussion."⁴ This is true because, as the Supreme Court has put it, "The military constitutes a specialized community governed by a separate discipline from that of the civilian."⁵ It has been aptly observed that, "An army is not a deliberative body,"⁶ and, it may be added, it cannot function as a debating society. "Its law is that of obedience" and discipline, and its strength lies in "Vigor and efficiency on the part of the officer, and confidence among the soldiers * * *."⁷ As a recent decision phrases it, "The need for discipline (in the Army), with the attendant impairment of certain rights, is an important factor" in the operation of an Army.⁸

To say that a serviceman's right of free speech is limited is not an entirely anomalous principle. Even among civilians, the right of an individual to exercise First Amendment rights may be legally circumscribed by the character of his public employment or by the circumstances, place and time where the right is sought to be exercised.⁹ Accordingly, in Pickering v. Board of Education (1968) 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811, the Court said, "At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." See, also, United Public Workers of America (C.I.O.) v. Mitchell (1947) 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754. And, in Goldwasser v. Brown (D.C. Cir. 1969) 417 F.2d 1169, filed September 17, 1969, a civilian employee of the Air Force, discharged as a teacher because of comments made in the classroom to foreign officers on the Vietnam war, assailed his discharge as a violation of his First Amendment rights. In denial of such claimed violation, the Court said:

"We would also be blinking reality if we did not recognize that a class of foreign military officers at an Air Force installation on invitational orders presents special problems affecting the national interest in harmonious international relations. We are certainly not equipped to second guess the agency judgment that the instructional goals of the Air Force program would be jeopardized by the teacher's volunteering his views on subjects of potential explosiveness in a multi-cultural group."

Moreover, "The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time."¹⁰ In short, where First Amendment rights are...