M.N.C. of Hinesville, Inc. v. U.S. Dept. of Defense
| Decision Date | 23 June 1986 |
| Docket Number | No. 85-8041,85-8041 |
| Citation | 791 F.2d 1466 |
| Parties | M.N.C. OF HINESVILLE, INC., Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF DEFENSE, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
George L. Lewis, Brent J. Savage, Savannah, Ga., for plaintiff-appellant.
Lawrence B. Lee, Melissa S. Mundell, Asst. U.S. Atty., Savannah, Ga., Wendy M. Keats, Robert S. Greenspan, Peter R. Maier, Richard A. Olderman, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Georgia.
Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and SIMPSON, Senior Circuit Judge.
M.N.C., publisher of a newspaper in Hinesville, Georgia, filed this suit seeking injunctive relief and mandamus against the Department of Defense ("DOD") challenging actions undertaken by DOD's agent, the Army. M.N.C. challenged the Army's decision awarding another publisher, Jesup Press-Sentinel, Inc. ("Jesup") a contract to publish a Civilian Enterprise Newspaper to be distributed at Fort Stewart and Hunter Army Airfield, both located near Savannah, Georgia. M.N.C. also alleged that the Army accorded Jesup preferential treatment in violation of its rights under the First and Fifth Amendments. The court conducted a final hearing and, after considering affidavits submitted by both sides, granted DOD's motion for summary judgment on these constitutional claims. We hold that the Army's actions did not infringe M.N.C.'s constitutional guarantees and affirm the district court.
DOD has promulgated regulations establishing procedures under which a military base can provide information to its personnel through distribution of a free newspaper. Through such a newspaper DOD can pass on to its military and civilian employees information that would not normally be available through regular commercial newspapers. See 32 C.F.R. Sec. 202.1(b). These newspapers fall into two general categories. Armed Forces Newspapers, 32 C.F.R. Sec. 202.4(a), are published directly by the military, and the costs of publication are paid for by the government either through appropriated or nonappropriated funds. There are three types of Armed Forces Newspapers: "Authorized newspapers," which are published by the military base itself, "overseas Unified Command newspapers," such as Stars and Stripes, and "News bulletins and news summaries," which are unofficial publications of local commands and ships that are used when daily newspapers are not readily available. 32 C.F.R. Sec. 202.7(a). The distinguishing feature of all these publications is that they are produced and paid for by the military.
The second type of newspaper a military base may use to distribute information to its personnel is a Civilian Enterprise Newspaper ("CEN"). CENs are published by commercial civilian publishers pursuant to contracts with individual military bases. In addition to traditional news sources such as wire services CENs receive information for publication directly from the military. 32 C.F.R. Sec. 202.4(b)(5). By securing commercial publishers the military is able to secure dissemination of the information it wants at no cost to itself. DOD or a military base may expend funds on a CEN only to buy individual copies of the publication for distribution to personnel if the publisher is unable to secure sufficient revenue from other sources to make publication feasible. 32 C.F.R. Sec. 202.6(b). A military installation is prohibited from contracting for a CEN unless it establishes that "the resources of subordinate commands or activities preclude publication of Armed Forces Newspapers." 32 C.F.R. Sec. 202.4(b)(1). A military installation may have only one CEN. 32 C.F.R. Sec. 202.4(b)(2).
DOD regulations impose significant constraints over the material that may appear in a CEN. All news must be factual, objective, and in good taste. The newspaper must distinguish between facts and opinions and identify the source of all opinions. It may not contain any news or editorials relating to political campaigns. 32 C.F.R. Sec. 202.3(b). If it carries a paid political advertisement it must give equal opportunity to all opposing candidates. 32 C.F.R. Sec. 202.3(c). A CEN is prohibited from publishing polls, surveys, and straw votes relating to political issues. 32 C.F.R. Sec. 202.3. In addition to operating under these constraints the CEN also must submit to review by the commander of the military installation, 32 C.F.R. Sec. 202.4(b)(1), who has the authority to prohibit distribution of any single issue of a CEN (or any other newspaper) if he considers it to be "unlawful or prejudicial to good order or discipline" or contains an advertisement that he "determines will not be in the best interest of his command." 32 C.F.R. Sec. 202.4(b)(6). If the publisher of the CEN fails to abide by these standards the base commander may terminate the publisher's contract. Army Reg. 360-81 IV Sec. 3-17(e).
When a publisher agrees to publish a CEN it does not, however, become an instrument of the federal government. DOD personnel are forbidden from serving on the editorial staff. 32 C.F.R. Sec. 202.11. All information given to a CEN by the military must be made available equally to any other publisher who requests it. 32 C.F.R. Sec. 202.11(a)(1). A CEN may not state that it is an authorized armed services publication, nor may it display official seals, insignia, or emblems of the United States or any of the military branches. On the front page of every issue a CEN must display this disclaimer:
Published by (name of publishing company), a private firm in no way connected with (appropriate military department or defense agency). Opinions expressed by the publishers or writers herein are their own and are not to be considered an official expression of (appropriate military department or defense agency). The appearance of advertisements in this publication, to include inserts, does not constitute an endorsement by the (appropriate military department or defense agency) of the products or services advertised.
32 C.F.R. Sec. 202.11.
While the publisher of a CEN gives up some of the autonomy of an ordinary commercial newspaper, it receives some benefits. DOD regulations provide that a CEN can be distributed either through DOD's official channels or directly to the intended readership. 32 C.F.R. Sec. 202.12(a). This is a benefit that no other commercial newspaper enjoys.
DOD selects the publisher of a CEN based upon competitive bids, open to all interested and responsible publishers with each publisher given a fair and equal opportunity to submit bids. 32 C.F.R. Sec. 202.11(b). Selection of the CEN publisher is based upon the "best obtainable offer and the price per copy of his newspaper, if any," with due care taken to select a competent, reliable, and responsible publisher. 32 C.F.R. Sec. 202.1(b)(3). Nothing in the regulations suggests that DOD is to base its selection on the views espoused by the competing publishers.
Prior to 1983 the Army at Fort Stewart/Hunter published informational materials itself and distributed them to its personnel through its own facilities and using its own resources. In 1983 it decided to establish a CEN for these installations, to be named The Patriot. M.N.C. was licensed as its publisher. The contract between the Army and M.N.C. granted M.N.C. a license to publish The Patriot for one year and included an option for the Army to extend the contract for another year. During 1983 M.N.C. distributed The Patriot to places at Fort Stewart/Hunter to which other newspapers had no access, such as troop lounges, barracks, and day rooms. All other newspapers, however, were, and still are, permitted to be distributed on the base only at designated newsstands. For the 1984 year the Army chose not to exercise its option and instead reopened the bidding process. Although M.N.C. submitted a bid to continue publishing The Patriot, the Army selected Jesup to be the CEN publisher for 1984.
The Army's contract with Jesup imposed restrictions on the content of The Patriot. In addition to the restrictions contained in the DOD regulations, The Patriot could not contain material that denigrated the Army; it was only permitted to carry "material that reflects the standards of decency which characterizes our military forces...." R. 329. Jesup also was required to submit a copy of each issue of The Patriot to the officials at Fort Stewart/Hunter for their approval before distributing the newspaper to the troops. R. 339. As the district court noted, "[T]he viewpoint necessarily advocated in the CEN is pro-Army." R. 343.
After learning that it would no longer publish The Patriot, M.N.C. began to publish a newspaper called Coastal Courier's Army Advocate that was aimed at the same market as The Patriot. The Army Advocate does not differ greatly in format from The Patriot. Both contain news, sports, entertainment, articles, features, and information supplied by the Public Affairs Office of Fort Stewart/Hunter as well as material supplied by United Press International and Reuters. The Army Advocate, like The Patriot, is supported by revenues from commercial advertisements. Throughout this litigation M.N.C. has asserted that the content of the Army Advocate mirrors that of The Patriot. See, e.g., Dist.Ct.Op. at R. 330-31 (). In order to compete against The Patriot, M.N.C. requested that the Army provide it with the same information that it provided to The Patriot and that it be allowed to distribute its paper in the same time, place, and manner as The Patriot. The Army denied these requests.
M.N.C. then brought this suit seeking equal access to...
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