Priest v. Secretary of Navy

• Decision Date: 30 December 1977
• Docket Number: No. 75-1054,75-1054
• Citation: 570 F.2d 1013
• Parties: Roger L. PRIEST, Appellant, v. The SECRETARY OF the NAVY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1013

570 F.2d 1013

187 U.S.App.D.C. 104

Roger L. PRIEST, Appellant, v. The SECRETARY OF the NAVY.

No. 75-1054.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 26, 1977.

Decided Dec. 30, 1977.

David Rein, Washington, D. C., for appellant.

Karen I. Ward, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease, Asst. U. S. Attys. and John K. Lawrence, Dept. of the Navy, Washington, D. C., were on the brief for appellee.

Before TOM CLARK, ^* Retired Associate Justice of the Supreme Court of the United States, and MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by ROBB, Circuit Judge.

ROBB, Circuit Judge:

Appellant Priest, a former seaman apprentice in the Navy, seeks collateral review of his conviction by court-martial for violations of Article 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. The basis of the conviction was his distribution of a "Serviceman's Newsletter". Without opinion the District Court granted the Secretary's motion for summary judgment. On appeal Priest contends that the conviction was obtained in violation of his First Amendment rights because (1) the court-martial was instructed improperly on the application of the First Amendment, and (2) the material he distributed was merely abstract advocacy. Priest also alleges that inconsistent decisions by the United States Court of Military Appeals denied him due process of law.

We conclude that the instructions the military judge gave to the court-martial were consistent with the requirements of the First Amendment and that the evidence was sufficient to support the conviction. We find no merit in Priest's Fifth Amendment contention; consequently, we affirm the judgment of the District Court.

THE FACTS

In the spring of 1969 Priest was a Navy seaman apprentice stationed at the Pentagon. On his own time and with his own funds, he published a newsletter which he distributed to active duty military personnel in the Pentagon. Priest's conviction was based on the May and June 1969 issues of the newsletter.

The May 1969 issue of the newsletter began with the following headline:

(Capitals in original)

The accompanying article closed with the warning:

And to those who hold illegitimate power over our lives we say to you that we will not accept the continuation of this war. We will continue to resist; and encourage others to do the same. SILENCE IS COMPLICITY.

(Capitals in original)

Another headline in the same issue read "BE FREE GO CANADA". The newsletter then listed the addresses of groups in Canada aiding military deserters and explained that landed immigrant status was available in Canada to deserters.

The June 1969 issue quoted Che Guevara concerning the supposed "futility of maintaining the fight for social goals within the framework of civil debate." It encouraged enlisted men to refuse promotions, "Don't Get Promoted. Fail the System." This issue also contained a crude formula for gunpowder and quoted, with obvious approval, a verse attributed to Phil Ochs:

Ah, but some time later

When I feel a little safer

We'll assainate (sic) the President

And take over the government

And then we're going to fry them!

Elsewhere the June issue contained these declarations:

(Capitals and Emphasis in original)

Numerous slogans were included:

(Capitals in original)

The Navy charged Priest with three offenses: (1) a violation of Article 82 of the UCMJ, 10 U.S.C. § 882, soliciting desertion or sedition; (2) a violation of Article 134 of the UCMJ, 10 U.S.C. § 934, incorporating 18 U.S.C. § 2387, distributing written matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by a member of the military forces; and (3) a violation of Article 134 of the UCMJ, 10 U.S.C. § 934, which prohibits "disorders and neglects to the prejudice of good order and discipline in the armed forces . . ."

Priest was convicted on two specifications of the third charge and acquitted of all other charges. He was sentenced to receive a reduction to the lowest pay grade and a bad conduct discharge. No confinement was imposed. The Navy Court of Military Review reversed the conviction upon the ground that the military judge failed to explain to the court-martial that disloyalty to the Navy or to a superior officer was not the same as disloyalty to the United States. United States v. Priest, No. 70-2332 (N.C.M.R. Feb. 9, 1971). On discretionary review the Court of Military Appeals held the instruction on disloyalty sufficient and reinstated the conviction. United States v. Priest, 21 C.M.A. 64, 44 C.M.R. 118 (1971). On remand the Navy Court of Military Review considered Priest's other allegations of error, including two that he urges here, insufficiency of the evidence to prove that the newsletter might undermine discipline and improper instructions on the applicability of the First Amendment to the Article 134 charge. The Court of Military Review affirmed. United States v. Priest, 46 C.M.R. 368 (N.C.M.R.1971) as did the Court of Military Appeals, United States v. Priest, 21 C.M.A. 564, 45 C.M.R. 338 (1972).

JURISDICTION

Collateral relief from the consequences of a court-martial judgment is barred unless it appears that the judgment is void. Schlesinger v. Councilman, 420 U.S. 738, 748, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). Whether a judgment may be deemed void turns upon two factors: the nature of the alleged defect in the proceedings and the gravity of the harm from which relief is sought. These in turn must be considered in light of the deference Congress expected the military justice system to receive in the federal courts. Id. at 753, 95 S.Ct. 1300. Priest received a bad conduct discharge that deprives him of substantially all veterans' benefits and operates as a formidable obstacle to employment. Moreover, impairment of First Amendment rights, if it occurred, would be a grave harm. We conclude that if Priest's interpretation of the First Amendment is correct, the defect in the court-martial judgment caused by improper instructions would be sufficiently fundamental to void it. We therefore have jurisdiction to review the judgment. Schlesinger v. Councilman, supra at 747, 753, 95 S.Ct. 1300, Avrech v. Secretary of the Navy, 171 U.S.App.D.C. 368, 370-71 n.5, 520 F.2d 100, 102-03 n.5 (1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2165, 48 L.Ed.2d 793 (1976).

FIRST AMENDMENT CONTENTIONS

Priest argues that his conviction must be reversed because the court-martial "was not instructed and accordingly, did not, consider appellant's First Amendment claims . . . (A)s a consequence, (the court-martial) did not strike 'the proper balance between legitimate military needs and individual liberties.' " (Appellant's Brief at 10, quoting Avrech v. Secretary of the Navy, supra, at 371, 520 F.2d at 103.) Priest relies upon our statement in the Avrech case:

the act of balancing First Amendment rights against the military necessity of the moment is inextricably bound to the fact-finding process, and, on review, it is the instructions guiding the members of the court martial panel to which we must direct our attention. If the panel has been properly instructed, its findings cannot readily be set aside by an appeals court, especially in a collateral proceeding such as this.

171 U.S.App.D.C. at 373, 520 F.2d at 105.

At trial Priest requested an instruction which reflected the standard announced in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (Per Curiam). ¹ The military judge refused to give this instruction, believing it inappropriate to offenses under Article 134 of the UCMJ. The Court of Military Appeals upheld that refusal and went on to hold that the proper standard for the governance of free speech in military law is not that of the Brandenburg case, but that of Schenck v. United States :

(W)hether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

21 C.M.A. 564, 570 quoting Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919). We agree with the Court of Military Appeals that this is the standard against which Priest's conduct must be measured. The Supreme Court has explained that the Brandenburg standard is inapposite in a military context:

In the armed forces some restrictions exist for reasons that 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 both is directed to inciting imminent lawless action and is likely to produce such action. Brandenburg v. Ohio, (395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)). 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 protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.

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

We now consider whether the military judge's instructions properly explained the applicable standard. The instructions regarding the Article 134 offenses for which Priest was convicted are set forth in the Appendix to this opinion. Although the military judge did not refer expressly to the First Amendment, the requirements of the First Amendment are reflected in the instructions as...