United States v. Flower

• Decision Date: 13 January 1972
• Docket Number: No. 31143.,31143.
• Citation: 452 F.2d 80
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Thomas FLOWER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

452 F.2d 80 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. John Thomas FLOWER, Defendant-Appellant.

No. 31143.

United States Court of Appeals, Fifth Circuit.

November 8, 1971.

Rehearing and Rehearing Denied January 13, 1972.

Maury Maverick, Jr., Texas Civil Liberties Union, San Antonio, Tex., for defendant-appellant.

James W. Kerr, Jr., Asst. U. S. Atty., Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before COLEMAN, SIMPSON, and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 13, 1972.

COLEMAN, Circuit Judge:

On or about October 25, 1969, the appellant, John Thomas Flower, Peace Education Secretary of the American Friends Service Committee for Texas, Oklahoma, and Arkansas, received a properly prepared and executed order of debarment (Appendix "A") from the Deputy Commander of Fort Sam Houston located in San Antonio, Texas. In the order Flower was told that his re-entry upon said reservation would result in his arrest and prosecution under the provisions of 18 U.S.C., § 1382 (Appendix "B"). This order was issued because information had been received at headquarters that on or about October 22, 1969, the appellant had participated in an attempt to distribute an unauthorized publication contrary to Fort Sam Houston Regulation 210-6 dated June 12, 1969 (Appendix "C"). This regulation governed the distribution and dissemination of publications on Fort Sam Houston and was promulgated under the authority of Army Regulation 210-10 issued by the Secretary of the Army pursuant to 10 U.S.C. § 3012(b) (1) (Appendix "D").

On December 11, 1969, the appellant reentered Fort Sam Houston in defiance of the order dated October 24, 1969. At the time of his arrest he was in the vicinity of the post library distributing leaflets advertising a "Town Meeting on the Vietnam War" which was to be held at Trinity University.

He was charged with the violation of 18 U.S.C., § 1382 and adjudged guilty of the same in the United States District Court for the Western District of Texas. Flower appeals from the decision of that Court and asks that both Fort Sam Houston Regulation 210-6 and 18 U.S.C., § 1382 be declared unconstitutional because they violate the First and Fifth Amendments. He, in short, claims that both his re-entry and prior conduct of October 22, 1969, are protected by the First Amendment and that both the statute and regulation are constitutionally defective in light of the First and Fifth Amendments.

Under the explicit authority of the regulation and in light of the historically unquestioned power of a commanding officer to summarily exclude civilians from the area of his command, there can remain no serious doubt of his authority to do so. Such summary exclusion has also been held not to violate the due process clause of the Fifth Amendment. Cafeteria and Restaurant Workers, etc. v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); United States v. Jelinski, 5 Cir., 1969, 411 F.2d 476; Government of Canal Zone v. Brooks, 5 Cir., 1970, 427 F.2d 346.

However, as stated, appellant claims that his re-entry and conduct in violation of Fort Sam Houston Regulation 210-6 previous to his re-entry are protected by the First Amendment. The violation of this regulation was the basis of the debarment order of October 24, 1969. For his conduct to be immune from prosecution either the statute or the regulation must be declared unconstitutional.

To acquiesce in appellant's claim that both the statute and the regulation are unconstitutional we would have to accept his contention that there is no difference between public streets, public roads, towns, shopping centers, and public parks on one hand and military reservations under the exclusive jurisdiction of the federal government on the other. We would have to agree all are one and the same and that the exercise of First Amendment rights at all of these places is governed by the same standards. This we cannot do.

From the decisions which have construed the First Amendment certain principles clearly emerge.

The rights of free speech and assembly are fundamental in our democratic society but they do not mean that everyone who has opinions or beliefs to express may, at his option only, address a group at any public place, at any time. Even where municipal or state property is open to the public generally, the exercise of First Amendment rights may be regulated so as to prevent interference with the use to which the property is ordinarly put, Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1964); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 466, 476, 13 L.Ed.2d 487 (1964); Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1967).

The Supreme Court in Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), held that the arrest of 107 demonstrators on county jail premises did not violate their First Amendment rights. Mr. Justice Black, writing for the majority, stated that "The state, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated". (At page 47, 87 S.Ct. at page 247). He also said that the concept of constitutional law which says that people who want to exercise First Amendment rights have a constitutional right to do so whenever, however, and wherever they please had been rejected in Cox v. Louisiana, supra, and was again being rejected. Furthermore, it was stated that the United States Constitution does not forbid a state to control the use of its own property for its own lawful nondiscriminatory purposes. Quite obviously, this would apply to the federal government and to its military installations.

Fort Sam Houston was lawfully dedicated and designed to be used as a training base for the preparation of soldiers of the United States. The regulations which were promulgated by the commanding officer of Fort Sam Houston were designed to insure that the use for which the reservation had been dedicated and designed could and would be maintained. At entrances, signs disclosed the nature and name of the installation. The area is an important part of the armed forces of our Country. Soldiers based there continually undergo training, and participate in programs supporting the national defense of the United States.

To say that a military base is like the company town in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1945), a city as in Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1968), a shopping center as in Amalgamated Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1967), state capitol grounds as in Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1962), a bus terminal in Wolin v. Port of New York Authority, 2 Cir., 1968, 392 F.2d 83, or the World's Fair Grounds as in Farmer v. Moses, 232 F.Supp. 154 (S.D., New York, 1964) would ignore the indisputable fact that military bases do not extend a general and open invitation to the public to use their facilities. A military base simply cannot be said to be dedicated to general use by the public at large.

Traditionally, towns, shopping centers, parks, and the like, have been open to the public. Historically, they are associated with the right of assembly and opportunities for the communication of thought which are common to public questions. There is no room for an argument that military bases have existed in like fashion.

To argue that Fort Sam Houston is "open" to the public is to disregard the fact that all forms of activity by civilians on a military base are permitted as a matter of license and never as a matter of right. Civilians who work, or visit, or enter there do so because of a privilege afforded them by the United States Army. That privilege, like any other grant, is subject to revocation or denial. It has long been recognized that military personnel, and others who enter upon a military reservation, surrender some of their individual rights so that military discipline and security may remain inviolate, United States v. Miller, 261 F. Supp. 442 (D.Del., 1966).

Admitting that a military reservation has some aspects of public property it is also true, as Justice White said in his dissent in Amalgamated Food Employees, supra, that "some property is available for some uses and not for others; some public property is neither designed nor dedicated for use by pickets or for other communicative activities". (391 U.S. at page 338, 88 S.Ct. at page 1619). This would certainly seem to be the import of the Cox, Adderley, and Cameron cases.

Appellant's contention that his reentry was constitutionally protected is based primarily on three cases. In United States v. Bradley, 4 Cir., 1969, 418 F.2d 688, two students, who had been arrested while distributing leaflets on Fort Bragg, were convicted of violating 18 U.S.C., § 1382 because their presence was seemingly prohibited by a lawful post regulation. The Post Regulation 27-1, which they were accused of violating, prohibited picketing, demonstrations, sit-ins, protest marches and political speeches but made no reference to prohibiting handbilling. Their conviction was reversed because the applicable regulation did not prohibit the activities which were the basis for the prosecution. Here, appellant's re-entry onto Fort Sam Houston was prohibited by an appropriate order of debarment. Furthermore, there can be no question that Post Regulation 210-6 prohibited appellant's unauthorized distribution of literature on October 22, 1969 and on December 11, 1969.

Appellant also relies on Kiiskila v. Nichols, 7 Cir., 1970, 433 F.2d 745. Carolyn Kiiskila, a civilian employee of a credit union of Fort Sheridan, was excluded from the base because she had distributed anti-war literature near a naval base. In holding her exclusion unconstitutional, because it denied her the freedom...