United States v. Bradley, 13574-13576.

• Decision Date: 28 November 1969
• Docket Number: No. 13574-13576.,13574-13576.
• Citation: 418 F.2d 688
• Parties: UNITED STATES of America, Appellee, v. Scott BRADLEY, Appellant. UNITED STATES of America, Appellee, v. Charles M. MANN, Appellant. UNITED STATES of America, Appellee, v. George A. ROSE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

418 F.2d 688 (1969)

UNITED STATES of America, Appellee, v. Scott BRADLEY, Appellant.

UNITED STATES of America, Appellee, v. Charles M. MANN, Appellant.

UNITED STATES of America, Appellee, v. George A. ROSE, Appellant.

Nos. 13574-13576.

United States Court of Appeals Fourth Circuit.

Argued October 10, 1969.

Decided November 28, 1969.

Charles F. Lambeth, Jr., Thomasville, N. C. (Norman B. Smith, Greensboro, N. C., on the brief) for appellants.

J. C. Proctor and Richard A. Marchetti, Asst. U. S. Attys. (Robert H. Cowen, U. S. Atty., on the brief) for appellee.

Before SOBELOFF, BOREMAN and BUTZNER, Circuit Judges.

SOBELOFF, Circuit Judge:

On November 16, 1968, the three appellants went to Fort Bragg in the company of nine fellow-students of the University of North Carolina with the intention of distributing leaflets.¹ Upon arrival at the Fort they consulted with an officer in the Provost Marshal's office and showed him their leaflets. In return, the officer showed them what he believed to be the applicable regulation and warned them that their proposed action would be met with arrest.

Confronted with official resistance to their purpose, the students left the base and after discussion all but Charles Mann and George Rose decided to abandon the plan. These two persisted in their design and after dinner they returned to Fort Bragg to distribute the leaflets. This now diminished corps of leafleteers was accompanied by the other students who intended not to participate but to observe. Upon their arrival, Mann and Rose took up places on the steps and sidewalk of a theater and began handing out their pamphlets. All the other students, except one, a reporter for a campus newspaper, remained nearby in their two parked automobiles. The entire activity was peaceful and the record affords no intimation of any disruption as a result of the handbilling. Nevertheless, after about a half hour the military police appeared and arrested all of the students, twelve in number.

Those involved in this appeal are Mann and Rose, the principals, and Scott Bradley, who drove one of the cars. The three were convicted by a United States Commissioner on November 25, 1968 of violating 18 U.S.C. § 1382, which punishes presence on a military post "for any purpose prohibited by law or lawful regulation." The District Court upheld the judgments.

Appellants level a two-pronged attack on their convictions. They contend that, properly construed, the regulation invoked does not apply to their actions. But even if it does, appellants maintain that their activity, carried out in a completely open and unrestricted portion of the base, was protected by the First Amendment.² Since we agree with their first argument, we find it unnecessary to decide constitutional questions raised by appellants.

The regulation which is the core of the controversy is Fort Bragg Regulation No. 210-22 the Regulation. It provides:

"On-Post Demonstrations

1. Purpose. The purpose of this directive is to establish policies for the control of demonstrations and civilian activities on this post.

2. General Policy.

a.) Picketing, demonstrations, sit-ins, protest marches, political speeches, and similar activities are prohibited and will not be conducted on this post except as provided in this paragraph.

b.) The installation commander may grant exceptions to the policy contained in this paragraph. Applications for exceptions shall be submitted in writing to the Provost Marshal, this headquarter, at least seven days prior to the date of the proposed demonstration or other activity.

3. No one shall enter or remain on this post for any of the purposes prohibited by this regulation. * * *"

Obviously, the Regulation does not in terms prohibit handbilling. The issue this appeal presents is whether, notwithstanding that omission, appellant's activity was within the Regulation's proscription. Four of the five specifications of activity in the Regulation are obviously inapplicable to the appellants' conduct. By no stretch can what they did fall within the categories of picketing, sit-ins, protest marches or political speeches. If appellants' action is within the Regulation's ban, it must be either as a demonstration or as activity similar to the explicitly designated conduct. Ultimately then, whether the students' deed is contemplated by the Regulation depends on how closely it approximates the enumerated "picketing, demonstrations, sit-ins, protest marches, political speeches."

If there is any feature common to all the listed acts, it is that the expression they embody is not merely offered to the public, but overtly displayed and proclaimed. They are "demonstrative" activities. Such acts as picketing, sit-ins, protest marches, speeches and acts ordinarily associated with demonstrations, like parading, singing, and display of placards, all, as appellants aptly put it, "inevitably intrude upon the senses of those within earshot or eyesight." The casual passerby cannot ignore the event — he must notice it and cannot escape exposure to its message.

Other modes of expression are much less conspicuous and insistent in their impact. The pure dissemination of information, unaccompanied by fanfare, is qualitatively different. Distribution of newspapers, for example, contrasts with the prohibited conduct in that the consumer may choose whether or not to avail himself of the proffer. Similarly, the person to whom a pamphlet is tendered may decide not to accept it. These activities are less intrusive and substantially different in kind from those enumerated in the Regulation.

That a base commander, in formulating his Regulation, should have chosen to prohibit one mode of expression but not the other is not surprising. The distinction might easily occur to an officer who feels the need to curb certain disruptions, and even distractions on his post, but would refrain from prohibiting all forms of speech.³ Nor is the dichotomy novel. Congress in its 1959 amendments to the National Labor Relations Act prohibited certain kinds of picketing, but left handbilling untouched. The then Senator John F. Kennedy, a Senate conferee, stated,

We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing. In other words, the union can hand out handbills at the shop * * and can carry on all publicity short of having ambulatory picketing.

Quoted in NLRB v. Fruit & Vegetable Packers & Warehousemen, 377 U.S. 58, 70, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964). In addition, the Supreme Court has, on occasion, utilized the difference between amplified sound and quiet handbilling to...