Spock v. David, Civ. A. No. 1621-72.

• Decision Date: 12 October 1972
• Docket Number: Civ. A. No. 1621-72.
• Citation: 349 F. Supp. 179
• Parties: Benjamin SPOCK et al., Plaintiffs, v. Bert A. DAVID, Commander, Fort Dix Military Reservation, and Melvin Laird, Secretary of Defense, Defendants.
• Court: U.S. District Court — District of New Jersey

349 F. Supp. 179

Benjamin SPOCK et al., Plaintiffs, v. Bert A. DAVID, Commander, Fort Dix Military Reservation, and Melvin Laird, Secretary of Defense, Defendants.

Civ. A. No. 1621-72.

United States District Court, D. New Jersey.

October 12, 1972.

Kairys & Rudovsky by David Kairys, Philadelphia, Pa., for plaintiffs.

Herbert J. Stern, U. S. Atty., by Richard W. Hill, Asst. U. S. Atty., for defendants.

OPINION

CLARKSON S. FISHER, District Judge.

Plaintiffs seek a preliminary injunction ordering defendants from enforcing several Army and Post Regulations which they claim deprives them of their First Amendment rights to make political addresses and to pass out literature in the military confines of Fort Dix.

These allegations are sufficient to establish jurisdiction under 28 U.S.C. Sec. 1331. The application will be decided on stipulated facts, affidavits supplied by the parties and testimony and documents received into evidence at the hearing on October 4, 1972.

The plaintiffs' situations fall into two categories. Generally one group of complainants seek to enter the base as political candidates to hold rallies and make political speeches. They are Benjamin Spock and Julius Hobson, Presidential and Vice-Presidential candidates of the Peoples Party and Linda Jenness and Andrew Pulley, candidates for the same offices on the Socialist Workers Party Ticket.

The second category of plaintiffs is composed of members of anti-Viet Nam conflict groups and draft education and conscientious objector organizations who seek relief from being banned from the military installation at Fort Dix. They are John Ginaven, Donald Misch, Alan Hardy and Robert Stanton, who attempted to and still desire to distribute leaflets at the Fort. Although their intended activities are different, it is interesting to note that they ally themselves in this litigation.

Candidates Spock, Hobson, Jenness and Pulley wrote a letter dated September 9, 1972 to General David, Commanding General at Fort Dix, advising him that on September 23, 1972 they intended to enter the Fort to distribute campaign literature and hold a meeting with service personnel. In the letter they agreed to time and place designated by the defendants. On September 18, 1972 General David responded by letter refusing the request giving the following reasons:

1. Fort Dix Regulation No. 210-26, April 9, 1968, prohibiting demonstrations, picketing, political speeches and the like on the base.

2. Fort Dix Regulation No. 210-27 prohibiting distribution of literature not previously approved as to content.

3. Department of the Army Regulations which prohibit military personnel from participating in any partisan political campaign.

4. Interference with the duties of the military personnel.

5. The Commanding General would appear partisan, if he allowed campaigning.

Undaunted, the candidates then informed General David that they intended to walk on the base to campaign on September 23, 1972 at 11:00 A.M. through the entrance to Fort Dix just outside Wrightstown, N.J. When they arrived, they were refused admittance.

The other plaintiffs who had been distributing literature on the Fort at various times (Stanton as long ago as 1968) were apprehended, evicted and given notice that they were barred from the base.

Fort Dix is a military reservation not far from Trenton, N.J. and located in a rural area. It covers fifty-five square miles and has seven main entrance ways. The roads leading into Fort Dix are not covered by guards or barriers. Apparently, because of the cut-back in personnel and inaccessibility of the military installations, it has not been deemed necessary to establish these precautions.

When the land which the base covers was ceded by the State of New Jersey to the Federal Government the only reservations were easements over four roads for transportation and the right to serve civil process on the reservation. The Provost Marshal maintains five to eight patrols around the clock throughout the post and keeps control over all roads and all areas.

The primary military mission at Fort Dix is training. It is an Infantry Center. At present there are two basic combat training and one advanced individual training brigades encamped. These units train from five days to five and one-half days per week. Other specialty training is also conducted. Over 10,000 personnel were engaged in training activities on September 23, 1972. The vast majority of the geographical area of the Reservation is devoted to training activities.

In addition to trainees, approximately 6,080 people are living on the post in family units and 2600 civilians are employed on the base. There are civilian concessions allowed on the grounds as a service to both the military and the civilian employees.

A 1970 traffic check, which has not been brought up to date, discloses a great volume of both civilian and military vehicular traffic in and out of Fort Dix.

Plaintiffs contend that the right to campaign on the military reservation and to pass out leaflets is protected by the First Amendment as defined in the cases of Flower v. United States, 407 U. S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972) and Jenness v. Forbes, 351 F. Supp. 88 (D.R.I.1972).

In Flower, supra, the petitioner was distributing leaflets advertising a debate at a local college on New Braunfels Avenue, a street within the limits of Fort Sam Houston, Texas. He had previously been removed from the post and barred therefrom. He was charged with a violation of 18 U.S.C. § 1382, convicted in the District Court and sentenced to six months in prison. The Fifth Circuit Court of Appeals affirmed (one judge dissenting) but the Supreme Court reversed. New Braunfels Avenue was an unguarded arterial highway, freely used by vehicles twenty-four hours a day. Traffic on the road was heavy, being used by buses, taxis and other public transportation as well as private automobiles. Further the sidewalks were used extensively by civilians as well as military personnel. There is nothing in the two opinions which would indicate any control of New Braunfels Avenue by the military. In a short per curiam opinion the Supreme Court (three justices dissenting) held:

"Under such circumstances the military has abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue. The base commandant can no more order petitioner off of this public street because he was distributing leaflets than could the city police order any leafleteer off any public street. Cf. Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938), Schneider v. State, 308 U.S. 147, 60 S.Ct. 146,

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