Locks v. Laird

• Decision Date: 28 May 1969
• Docket Number: Civ. No. 51076.
• Citation: 300 F. Supp. 915
• Parties: Michael R. LOCKS et al., Plaintiffs and Petitioners, v. Melvin LAIRD, as U. S. Secretary of Defense, et al., Defendants and Respondents.
• Court: U.S. District Court — Northern District of California

300 F. Supp. 915

Michael R. LOCKS et al., Plaintiffs and Petitioners, v. Melvin LAIRD, as U. S. Secretary of Defense, et al., Defendants and Respondents.

Civ. No. 51076.

United States District Court N. D. California.

As Amended May 28, 1969.

Albert M. Bendich, Berkeley, Cal., for plaintiffs.

Cecil F. Poole U. S. Atty., Shelton Deutsch, Asst. U. S. Atty., San Francisco, Cal., for respondents.

ORDER DISMISSING COMPLAINT AND DENYING PETITION

ZIRPOLI, District Judge.

On or about October 10, 1968, the then Secretary of the Air Force issued a general order which reads:

"Recent developments have established a need for clarification of the circumstances in which Air Force members are not permitted to wear their uniform. Accordingly, pursuant to para 1-10d, AFM 35-10, 26 June 1968,¹ the Secretary of the Air Force has specified that Air Force members will not wear the uniform at any public meeting, demonstration, or interview if they have reason to know that a purpose of the meeting, demonstration, or interview is the advocacy, expression or approval of opposition to the employment or use of the Armed Forces of the United States. (Emphasis added)

Petitioner Locks, after court-martial proceedings, was convicted on two specifications of violation of Article 92 of the Uniform Code of Military Justice for failing to obey the above stated general order or regulation. This conviction is under military appellate review. Pending review of the record of trial, petitioner was ordered to be confined at the United States Air Force Retraining Center at Lowry Air Force Base, Colorado.

Since the issue raised by petitioner Locks in the instant case is the same issue that will be dealt with by the military appellate review,² this court should not interfere with such military judicial process. "The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters." Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 97 L.Ed. 842 (1953). The very matter which brought petitioner Locks before the court-martial and for which he has a pending appeal is the very matter governed by the regulation here in question, hence we do not have "a situation in which defense of the State's here the military's criminal prosecution will not assure adequate vindication of constitutional rights." Dombrowski v. Pfister, 380 U.S. 479, 485, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Under such circumstances Dombrowski is not applicable. The controlling cases here are Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950), and Noyd v. McNamara, 378 F.2d 538 (10th Cir.1967) cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967). These controlling cases dictate that this court is without jurisdiction as to petitioner Locks and as to him the complaint for injunction and declaratory relief and the petition for writ of habeas corpus are dismissed.³

The remaining petitioners (plaintiffs) in this case — Bright, Williams and O'Connell — are members of the United States Air Force Reserve presently serving on extended active duty and currently stationed at Hamilton Air Force Base, California. They are not under physical restraint in any form and seek to enter this "controversy" on the allegation that they "desire and intend to participate in a similar demonstration similar to the one petitioner Locks attended in uniform and for which he was convicted in court-martial proceedings to be held off the Air Force Base on May 30, 1969, and that but for the regulation in question and the punishment being suffered by plaintiff Locks they would do so and wear their uniforms as an expression of their First Amendment freedoms."

These three petitioners contend that the regulation is "unconstitutional, vague, overbroad and discriminatory on its face." With this contention this court cannot and does not agree.

It was stipulated at the Court hearing on the order to show cause that the purpose of the demonstration of May 30, 1969, is the advocacy, expression or approval of opposition to the employment and use of the Armed Forces of the United States in Vietnam; that petitioners desire and intend to wear their Air Force uniforms at said demonstration; and that petitioners can reasonably expect that the regulation (general order) will be enforced against them if they wilfully violate the same. This stipulation adequately presents a "controversy" for the consideration of the court.⁴

There is no constitutional right of a member of the Air Force to wear his uniform when and wherever he pleases. There can be no doubt that the Air Force may by proper orders regulate the use of the Air Force uniform by which individuals wearing that uniform are identified with the Air Force.

But, petitioners contend, conceding the above to be true, the regulation in question is not a "proper" regulation since, as they allege, enforcement thereof violates their assured freedom of speech.

The petitioners' claim rests on the fundamental proposition that the display of symbols can be "speech" which enjoys First Amendment protection. It has long been established that the display of unofficial symbols is protected by the First Amendment, Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (decided February 24, 1969), and that freedom from coerced acceptance of official symbols in violation of religious scruples is also protected by the First Amendment, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

The power and universality of symbolic forms of communication was recognized by the Supreme Court in West Virginia State Board of Education v. Barnette, supra at 632-633, 63 S.Ct. at 1182:

Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.

The key that unlocks the present dispute is the understanding that there is no necessary relationship between the symbol and that which is symbolized.⁵ A common example of this fact is that a "v" formed with the forefinger and middle finger is today a symbol for peace, whereas twenty-five years ago it was a symbol for victory in war. The point is that a symbol takes on an assigned relationship to the thing symbolized based primarily on the context of its use.

A military uniform is a symbol, and the issue in this case is whether it may be used in a context expressly contrary to the purposes and values intended by the Secretary of the Air Force. This court holds that if the Secretary of the Air Force commands that the uniform not be worn at events of the nature in question, the First Amendment does not command otherwise. To permit members of the military to display at will the primary symbol of their military service would be to permit the destruction of the very symbolic effective ness which the uniform is intended to enjoy.⁶ This court does not find it violative of the First Amendment for the Secretary to limit the wearing of the uniform to contexts that will promote a sense, not just of membership in the Air Force, but of participation, allegiance, and achievement. The Air Force designs and furnishes the uniform according to its own criteria; the First Amendment does not forbid the Air Force from determining the uniform's use according to its own criteria.

This court is mindful that each petitioner took an oath in which he declared: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same, and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." (Emphasis added).

The general order (or regulation) here in question is an order of the President of the United States and the officers appointed over petitioners according to regulations.

Petitioners overlook the fact that Armed Forces are mobilized for employment and use wherever the national interests require...