Ethredge v. Hail

• Decision Date: 05 June 1992
• Docket Number: Civ. No. 92-187-2-MAC(DF).
• Citation: 795 F. Supp. 1152
• Parties: Jesse ETHREDGE, Plaintiff, v. Robert HAIL, Deputy Base Commander of Robins Air Force Base, in his official capacity as an officer and agent of the United States Air Force, an agency of the United States of America, Defendant.
• Court: U.S. District Court — Middle District of Georgia

795 F. Supp. 1152

Jesse ETHREDGE, Plaintiff, v. Robert HAIL, Deputy Base Commander of Robins Air Force Base, in his official capacity as an officer and agent of the United States Air Force, an agency of the United States of America, Defendant.

Civ. No. 92-187-2-MAC(DF).

United States District Court, M.D. Georgia, Macon Division.

June 5, 1992.

Gerald R. Weber, ACLU of Georgia, Atlanta, Ga., for plaintiff.

Frank Butler, Asst. U.S. Atty., Macon, Ga., for defendant.

FITZPATRICK, District Judge.

On June 4, 1992, this Court held a preliminary injunction hearing in the above-styled case.

FACTS

Jesse Ethredge is a civilian aircraft mechanic employed by Robins Air Force Base ("RAFB"). He enters the base four to six days a week to do work and, until October 1991, used his Mazda truck for transportation to and from the base.

In 1984 Ethredge put a "bumper sticker"¹ on the window of his truck reading "Hell With Reagan". Ethredge changed his sign when George Bush came into office. The new sign read "Read My Lips Hell With Geo Bush" and at the bottom of the rear window "Forgive Bush Not Egypt He Lied".

On April 5, 1990, Ethredge was stopped by the Armed Forces Traffic Control and issued a ticket for "Provoking Speech on a Truck". The citation was dismissed the next day because there was no such traffic offense. Plaintiff's Exhibit 2.

In February 1991, during Operation Desert Storm, Major General Richard F. Gillis, installation commander of RAFB, directed Colonel Robert Hail, Deputy base commander, to order Ethredge to remove the bumper sticker from his vehicle while on RAFB. Colonel Hail contacted Ethredge's supervisor and directed him to order Ethredge to remove the sign. Ethredge's superior refused to give him the order because he did not receive a written order. Colonel Hail assumed Ethredge complied with his order and notified General Gillis that his order had been carried out.²

On or about October 4, 1991, however, Colonel Hail learned that another Action Line Complaint³ had been received concerning Ethredge's vehicle. Hail Affidavit at ¶ 7. On October 17, Hail issued an administrative order directing Ethredge to remove the sign while on RAFB. Id. at ¶¶ 5-7. The stated reason for ordering removal was that the message contained "disparaging or embarrassing comments about the Commander in Chief of the United States." Plaintiff's Exhibit 4.

Other vehicles on the base, including a military vehicle, have pro-Bush, pro-Republican bumper stickers stating such sentiments as "Sam Nunn Wants Your Guns", "Support Desert Storm Troops", "Insured By Smith and Wesson", "Ross Perot for President", as well as bumper stickers expressing religious beliefs, opposing drug abuse, and stating preferences for athletic teams, leisure activities and radio stations. Ethredge Affidavit, McSwain Affidavit. None of these car owners have been ordered to remove their bumper stickers.

In order to comply with the regulation Ethredge would have to permanently remove the message from his truck. Consequently, since the date of the administrative order, he has driven a different vehicle to work.

On April 28, 1992, Plaintiff filed a motion for a preliminary injunction seeking to restrain Defendant from enforcing the RAFB regulation.

DISCUSSION

A Court generally may issue a preliminary injunction if the movant shows:

1. A substantial likelihood of prevailing on the merits of its claims;

2. A substantial threat that it will suffer immediate and irreparable injury;

3. That the threat of injury to the movant substantially outweighs the threatened harm injunctive relief may do to the defendants; and

4. That the injunction would not be adverse to the public interest.

W.E. Callaway v. Block, 763 F.2d 1283, 1287 (11th Cir.1985); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1422-23 (11th Cir.1984). The injunction should not be granted unless "the movant clearly carries the burden of persuasion as to all four prerequisites". United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983).

SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS

Plaintiff contends that his First Amendment rights were violated for the following reasons: (1) the regulation is viewpoint based and/or unreasonable; (2) his "bumper sticker" does not present a clear danger to military discipline, loyalty, or morale; and (3) the regulation restricts his freedom of expression rights and his right to travel.

The Court initially acknowledges that military regulations are entitled to a greater degree of deference that those affecting a civilian community. In Goldman v. Weinburger the Supreme Court stated:

our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws and regulations designed for civilian society. The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment and esprit de corps.

475 U.S. 503, 507, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986)⁴. The military's "`primary business ... is to fight or to be ready to fight wars should the occasion arise.'" Greer, 424 U.S. at 837-838, 96 S.Ct. at 1217 (quoting United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8 (1955)). Consequently, the military may impose restrictions on speech that would be unacceptable in the civilian community. The Supreme Court acknowledged this fact in Parker v. Levy when it stated:

"In the armed forces some restrictions exist for reasons which have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the government to discharge its responsibilities unless it is both directed to inciting lawless action and is likely to produce such action. Citations omitted. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is unprotected in the civil population may nonetheless undermine the effectiveness of the responsiveness to command. If it does it is constitutionally unprotected."

417 U.S. 733, 758-59, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974) (quoting United States v. Priest, 21 USCMA 564, 570, 45 C.M.R. 338, 344 (1972)). (Emphasis added).

Viewpoint Based and Unreasonable

The validity of the government's limitation on Plaintiff's speech depends on the type of government property that RAFB is. See Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788, 800, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985); Perry Educ. Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). There are three types of government property ("fora"): traditional public fora, limited (or "created" or "designated") public fora, and nonpublic fora. RAFB is a nonpublic forum.⁵ Access "to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788, 806, 105 S.Ct. 3439, 3541, 87 L.Ed.2d 567 (1985).

Viewpoint Discrimination

Although military regulations are accorded deference, the military may not engage in viewpoint discrimination. See Greer v. Spock, 424 U.S. at 839, 96 S.Ct. at 1218 ("Fort Dix policy objectively and evenhandedly applied"); Albertini, 472 U.S. 675, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985); M.N.C. Hinesville, Inc. v. Department of Defense, 791 F.2d 1466, 1476 (11th Cir. 1986) ("no impermissible viewpoint discrimination found").

Plaintiff contends that the regulation is viewpoint based because it prohibits speech that is critical of George Bush. Defendant counters that the regulation is viewpoint neutral because it only prohibits speech that disparages or embarrasses the Commander in Chief of the United States military. The regulation states:

bumper stickers or other similar paraphernalia which embarrass or disparage the Commander in Chief are inappropriate as they have a negative impact on the good order and discipline of the service members stationed at Robins AFB.

(Emphasis added).

First, the order prohibits speech disparaging the Commander in Chief, whether it be Dan Quayle, Ross Perot, Bill Clinton or George Bush. Additionally, the regulation does not prohibit criticism. Rather, it prohibits speech that disparages the Commander in Chief.⁶ Plaintiff's expression calls the Commander in Chief of United States military a liar and tells him to "go to Hell". Furthermore, none of the other bumper stickers present on base disparage the Commander in Chief. A bumper sticker for Ross Perot is implicitly an anti-Bush bumper sticker but it does not express that sentiment in a disparaging manner. Therefore, Defendant's failure to force the removal of other bumper stickers does not demonstrate that the regulation is viewpoint based. In fact, the presence of the Perot bumper stickers shows that anti-Bush views are permitted. Consequently, the Court concludes that the regulation is viewpoint neutral.

Plaintiff contends that such a narrow interpretation of viewpoint neutrality is unsupported by case law and contradicts other Air Force Regulations. First, Plaintiff cites Fire Fighters Assoc. v. Barry, 742 F.Supp. 1182 (D.D.C.1990), in support of his assertion that the regulation is not viewpoint neutral. In Barry the Court held that a fire department regulation prohibiting bumper stickers, which could be "construed as obscene, cause embarrassment or harassment of fire department members", 742 F.Supp. at 1186 n. 3, from being displayed on fire...