GREER v. SPOCK(1976)
Fort Dix, a federal military reservation devoted primarily to basic training for newly inducted Army personnel, and over which the Government exercises exclusive jurisdiction, permits free civilian access to certain unrestricted areas. However, post regulations ban speeches and demonstrations of a partisan political nature and also prohibit the distribution of literature without prior approval of post headquarters. Pursuant to these regulations the commanding officer of Fort Dix rejected the request of respondent candidates for President and Vice President to distribute campaign literature and hold a political meeting on the post, and the other respondents, who had been evicted on several occasions for distributing literature not previously approved, were barred from re-entering the post. Respondents brought suit to enjoin enforcement of these regulations on the ground that they violated the First and Fifth Amendments. The District Court issued an injunction prohibiting the military authorities from interfering with the making of political speeches or the distribution of leaflets in areas of Fort Dix open to the general public, and the Court of Appeals affirmed. Held:
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 840. POWELL, J., filed a concurring opinion, in Part III of which BURGER, C. J., joined, post, p. 842. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 849. MARSHALL, J., filed a dissenting opinion, post, p. 872. STEVENS, J., took no part in the consideration or decision of the case.
Solicitor General Bork argued the cause for petitioners. With him on the brief were Assistant Attorney General Lee, Deputy Solicitor General Randolph, Robert E. Kopp, and Anthony J. Steinmeyer.
David Kairys argued the cause and filed a brief for respondents. *
MR. JUSTICE STEWART delivered the opinion of the Court.
The Fort Dix Military Reservation is a United States Army post located in a predominantly rural area of central New Jersey. Its primary mission is to provide basic combat training for newly inducted Army personnel. Accordingly, most of its 55 square miles are devoted to military training activities. The Federal Government exercises exclusive jurisdiction over the entire area within Fort Dix, including the state and county roads that pass through it. 1 Civilian vehicular traffic is permitted on paved roads within the reservation, and civilian pedestrian traffic is permitted on both roads and footpaths. Military police regularly patrol the roads within the reservation, and they occasionally stop civilians and ask them the reason for their presence. Signs posted on the roads leading into the reservation state: "All vehicles are subject to search while on the Fort Dix Military Reservation" and "Soliciting prohibited unless approved by the commanding general." The main entrances to Fort Dix are not normally guarded, and a sign at one of the entrances says "Visitors Welcome." Civilians are freely permitted to visit unrestricted areas of the reservation. [424 U.S. 828, 831]
Civilian speakers have occasionally been invited to the base to address military personnel. The subjects of their talks have ranged from business management to drug abuse. Visiting clergymen have, by invitation, participated in religious services at the base chapel. Theatrical exhibitions and musical productions have also been presented on the base. Speeches and demonstrations of a partisan political nature, however, are banned by Fort Dix Reg. 210-26 (1968), which provides that "[d]emonstrations, picketing, sit-ins, protest marches, political speeches and similar activities are prohibited and will not be conducted on the Fort Dix Military Reservation." The regulation has been rigidly enforced: Prior to this litigation, no political campaign speech had ever been given at Fort Dix. Restrictions are also placed on another type of expressive activity. Fort Dix Reg. 210-27 (1970) provides that "[t]he distribution or posting of any publication, including newspapers, magazines, handbills, flyers, circulars, pamphlets or other writings, issued, published or otherwise prepared by any person, persons, agency or agencies . . . is prohibited on the Fort Dix Military Reservation without prior written approval of the Adjutant General, this headquarters." 2 [424 U.S. 828, 832]
In 1972, the respondents Benjamin Spock and Julius Hobson were the candidates of the People's Party for the offices of President and Vice President of the United States, and Linda Jenness and Andrew Pulley were the candidates of the Socialist Workers Party for the same offices. On September 9, 1972, Spock, Hobson, Jenness, and Pulley wrote a joint letter to Major General Bert A. David, then commanding officer of Fort Dix, informing him of their intention to enter the reservation on September 23, 1972, for the purpose of distributing campaign literature and holding a meeting to discuss election issues with service personnel and their dependents. On September 18, 1972, General David rejected the candidates' [424 U.S. 828, 833] request, relying on Fort Dix Regs. 210-26 and 210-27. 3 Four of the other respondents, Ginaven, Misch, Hardy, and Stanton, were evicted from Fort Dix on various occasions between 1968 and 1972 for distributing literature not previously approved pursuant to Fort Dix Reg. 210-27. Each was barred from re-entering Fort Dix and advised that re-entry could result in criminal prosecution. 4
On September 29, 1972, the respondents filed this suit in the United States District Court for the District of [424 U.S. 828, 834] New Jersey to enjoin the enforcement of the Fort Dix regulations governing political campaigning and the distribution of literature, upon the ground that the regulations violated the First and Fifth Amendments of the Constitution. The District Court denied a preliminary injunction, Spock v. David, 349 F. Supp. 179, but the Court of Appeals reversed that order and directed that preliminary injunctive relief be granted to the respondents Spock, Hobson, Jenness, and Pulley. Spock v. David, 469 F.2d 1047. 5 Pursuant to this judgment the respondent Spock conducted a campaign rally at a Fort Dix parking lot on November 4, 1972. The District Court subsequently issued a permanent injunction prohibiting the military authorities from interfering with the making of political speeches or the distribution of leaflets in areas of Fort Dix open to the general public, 6 and the Court of Appeals affirmed this final judgment. Spock v. David, 502 F.2d 953. We granted certiorari to consider the important federal questions presented. 421 U.S. 908 .
In reaching the conclusion that the respondents could not be prevented from entering Fort Dix for the purpose of making political speeches or distributing leaflets, the Court of Appeals relied primarily on this Court's per curiam opinion in Flower v. United States, 407 U.S. 197 . [424 U.S. 828, 835] In the Flower case the Court summarily reversed the conviction of a civilian for entering a military reservation after his having been ordered not to do so. At the time of his arrest the petitioner in that case had been "quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas." Ibid. The Court's decision reversing the conviction, made without the benefit of briefing or oral argument, rested upon the premise that "`New Braunfels Avenue was a completely open street,'" and that the military had "abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue." Id., at 198. Under those circumstances, the "base commandant" could "no more order petitioner off this public street because he was distributing leaflets than could the city police order any leaflete[e]r off any public street." Ibid.
The decision in Flower was thus based upon the Court's understanding that New Braunfels Avenue was a public thoroughfare in San Antonio no different from all the other public thoroughfares in that city, and that the military had not only abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue, but also any right to exclude leafleteers - "any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue."
That being so, the Court perceived the Flower case as one simply falling under the long-established constitutional rule that there cannot be a blanket exclusion of First Amendment activity from a municipality's open streets, sidewalks, and parks for the reasons stated in the familiar words of Mr. Justice Roberts in Hague v. CIO, 307 U.S. 496, 515 -516:
The Court of Appeals was mistaken, therefore, in thinking that the Flower case is to be understood as announcing a new principle of constitutional law, and mistaken specifically in thinking that Flower stands for the principle that whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a "public forum" for purposes of the First Amendment. Such a principle of constitutional law has never existed, and does not exist now. The guarantees of the First Amendment have never meant "that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please." Adderley v. Florida, 385 U.S. 39, 48 . "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." Id., at 47. See also Cox v. [424 U.S. 828, 837] Louisiana, 379 U.S. 559, 560 -564. Cf. Pell v. Procunier, 417 U.S. 817 .
The Court of Appeals in the present case did not find, and the respondents do not contend, that the Fort Dix authorities had abandoned any claim of special interest in regulating the distribution of unauthorized leaflets or the delivery of campaign speeches for political candidates within the confines of the military reservation. The record is, in fact, indisputably to the contrary. 7 The Flower decision thus does not support the judgment of the Court of Appeals in this case.
Indeed, the Flower decision looks in precisely the opposite direction. For if the Flower case was decided the way it was because the military authorities had "abandoned any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue," then the implication surely is that a different result must obtain on a military reservation where the authorities have not abandoned such a claim. And if that is not the conclusion clearly to be drawn from Flower, it most assuredly is the conclusion to be drawn from almost 200 years of American constitutional history.
One of the very purposes for which the Constitution was ordained and established was to "provide for the common defence," 8 and this Court over the years has on countless occasions recognized the special constitutional function of the military in our national life, a function both explicit and indispensable. 9 In short, it [424 U.S. 828, 838] is "the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 . And it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum.
A necessary concomitant of the basic function of a military installation has been "the historically unquestioned power of [its] commanding officer summarily to exclude civilians from the area of his command." Cafeteria Workers v. McElroy, 367 U.S. 886, 893 . The notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is thus historically and constitutionally false.
The respondents, therefore, had no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix, and it follows that Fort Dix Regs. 210-26 and 210-27 are not constitutionally invalid on their face. These regulations, moreover, were not unconstitutionally applied in the circumstances disclosed by the record in the present case. 10
With respect to Reg. 210-26, there is no claim that the military authorities discriminated in any way among candidates for public office based upon the candidates' [424 U.S. 828, 839] supposed political views. 11 It is undisputed that, until the appearance of the respondent Spock at Fort Dix on November 4, 1972, as a result of a court order, no candidate of any political stripe had ever been permitted to campaign there.
What the record shows, therefore, is a considered Fort Dix policy, objectively and evenhandedly applied, of keeping official military activities there wholly free of entanglement with partisan political campaigns of any kind. Under such a policy members of the Armed Forces stationed at Fort Dix are wholly free as individuals to attend political rallies, out of uniform and off base. But the military as such is insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates.
Such a policy is wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control. It is a policy that has been reflected in numerous laws and military regulations throughout our history. 12 And it is a policy that the military authorities at Fort Dix were constitutionally free to pursue. [424 U.S. 828, 840]
With respect to Reg. 210-27, it is to be emphasized that it does not authorize the Fort Dix authorities to prohibit the distribution of conventional political campaign literature. The only publications that a military commander may disapprove are those that he finds constitute "a clear danger to [military] loyalty, discipline, or morale," and he "may not prevent distribution of a publication simply because he does not like its contents," or because it "is critical - even unfairly critical - of government policies or officials . . . ." 13 There is nothing in the Constitution that disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command.
It is possible, of course, that Reg. 210-27 might in the future be applied irrationally, invidiously, or arbitrarily. But none of the respondents in the present case even submitted any material for review. The noncandidate respondents were excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution. This case, therefore, simply does not raise any question of unconstitutional application of the regulation to any specific situation. Cf. Rescue Army v. Municipal Court, 331 U.S. 549 .
For the reasons set out in this opinion the judgment is reversed.
[ Footnote 2 ] This regulation does not permit the Fort Dix authorities to prohibit the distribution of conventional political campaign literature. The post regulation was issued in conformity with Army Reg. 210-10, § 5-5 (c) (1970), which states that permission to distribute a publication may be withheld only where "it appears that the dissemination of [the] publication presents a clear danger to the loyalty, discipline, or morale of troops at [the] installation. . . ." The Army regulation further provides that if a base commander decides to withhold permission to distribute a publication, he shall "inform the next major commander and Headquarters, Department of the Army . . . and request . . . approval to prohibit the distribution of that publication or the particular issue thereof." § 5-5 (d). The base commander may delay distribution of the publication in [424 U.S. 828, 832] question pending approval or disapproval of his request by Army headquarters. Ibid.
A Department of the Army letter, dated June 23, 1969, entitled Guidance on Dissent, § 5 (a) (3), gives as examples of materials which a commander need not allow to be distributed "publication which are obscene or otherwise unlawful (e. g., counselling disloyalty, mutiny, or refusal of duty)."
Commercial magazines and newspapers distributed through regular outlets such as post exchange newsstands need not be approved before distribution. Army Reg. 210-10, §§ 5-5 (c), (d), does provide that a commander may delay, and the Department of the Army may prohibit, the distribution of particular issues of such publications through official outlets. See Department of the Army letter, supra, § 5 (a) (1). The substantive standards for such restrictions are the same as those applicable to publications distributed other than through official outlets. Id., §§ 5 (a) (1), (2); Army Reg. 210-10, § 5-5 (e). This provision of Army Reg. 210-10, § 5-5, allowing commanders to halt the distribution of particular issues of publications through regular outlets appears to be inconsistent with Department of Defense Directive 1325.6, § III (A) (1) (1969), which provides that "[a] Commander is not authorized to prohibit the distribution of a specific issue of a publication through official outlets such as post exchanges and military libraries." See Note, Prior Restraints in the Military, 73 Col. L. Rev. 1089, 1106 n. 127 (1973).
[ Footnote 3 ] General David's letter stated, in pertinent part:
[ Footnote 4 ] Title 18 U.S.C. 1382, provides that "[w]hoever reenters or is found within [a military] reservation . . . after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof - Shall be fined not more than $500 or imprisoned not more than six months, or both."
[ Footnote 5 ] The Court of Appeals did not disturb the denial of preliminary relief to the four noncandidate respondents because their interests were not viewed as "so directly connected with [the upcoming Presidential] election, [or] so promptly and diligently pursued in the courts, as are the interests of the candidates. They make a lesser showing of immediate irreparable injury and possibly a lesser showing of likelihood of meeting the jurisdictional amount." 469 F.2d, at 1056.
[ Footnote 6 ] The District Court dismissed the complaint as to Jenness and Pulley because they were below the constitutional age limits for the offices they sought. There was no appeal from that part of the District Court's judgment.
[ Footnote 7 ] See n. 3, supra.
[ Footnote 8 ] U.S. Const. Preamble. See also U.S. Const., Art. I, 8; Art. II, 2.
[ Footnote 9 ] For illustrative recent decisions of this Court see, e. g., Schlesinger v. Councilman, 420 U.S. 738 ; Schlesinger v. Ballard, 419 U.S. 498 ; Parker v. Levy, 417 U.S. 733 ; Bell v. United States, 366 U.S. 393 ; United States ex rel. Toth v. Quarles, 350 U.S. 11 ; Burns v. Wilson, 346 U.S. 137 ; Orloff v. Willoughby, 345 U.S. 83 ; Gusik v. Schilder, 340 U.S. 128 .
[ Footnote 10 ] The fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not of itself serve to convert Fort Dix into a public forum or to confer upon political candidates a First or Fifth Amendment right to conduct their campaigns there. The decision of the military authorities that a civilian lecture on drug abuse, a religious service by a visiting preacher at the base chapel, or a rock musical concert would be supportive of the military mission of Fort Dix surely did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever.
[ Footnote 11 ] Cf. Jenness v. Forbes, 351 F. Supp. 88 (RI).
[ Footnote 12 ] Members of the Armed Forces may not be polled by any person or political party to determine their choice among candidates for elective office, 18 U.S.C. 596; it is unlawful to solicit political contributions in any fort or arsenal, 18 U.S.C. 603; candidates for federal office are prohibited from soliciting contributions from military personnel, 18 U.S.C. 602; no commissioned or non-commissioned officer in the Armed Forces may attempt to influence any member of the Armed Forces to vote for any particular candidate, 50 U.S.C. 1475; no officer of the Armed Forces may "in any manner interfere with the freedom of any election in any State," 42 U.S.C. 1972; a military officer may not have troops under his control at any place where a general or special election is held, 18 U.S.C. 592. See also Army Reg. 600-20 (1971); Army Reg. 670-5 (1975).
[ Footnote 13 ] Department of the Army letter, supra, n. 2, §§ 5 (a) (1), (3).
MR. CHIEF JUSTICE BURGER, concurring.
I concur in the Court's opinion, and also in Part III of MR. JUSTICE POWELL'S concurring opinion. [424 U.S. 828, 841]
Permitting political campaigning on military bases cuts against a 200-year tradition of keeping the military separate from political affairs, a tradition that in my view is a constitutional corollary to the express provision for civilian control of the military in Art. II, 2, of the Constitution.
As MR. JUSTICE POWELL notes, however, Fort Dix Reg. 210-27 - at least to the extent that it permits distribution of some political leaflets on military bases - cannot be justified as implementing this policy of separation or even as consistent with our tradition of separation. I agree that the regulation, insofar as it permits a military commander to avert a clear threat to the loyalty, discipline, or morale of his command, is justified by the requirements of military life and the mission of the Armed Forces. But a commander could achieve this goal in another way as well, by banning the distribution on base of all political leaflets; the hard question for me is whether the Constitution requires a ban on all distributions in order to preserve the separation of the military from politics. Although there are dangers in permitting any distribution of political materials on a military base, those dangers are of less magnitude and narrower in scope than the dangers involved in requiring the military to permit political rallies and campaigning on a base; the risk that soldiers will become identified with a particular candidate is, for example, less when a leaflet is handed out than when meetings or political rallies are held. The differences are substantial enough that the decision whether to permit conventional political material to be distributed is one properly committed to the judgment of the military authorities - whether or not they have exercised that judgment wisely in promulgating the regulation before us.
I would add only a note of caution. History demonstrates, I think, that the real threat to the independence [424 U.S. 828, 842] and neutrality of the military - and the need to maintain as nearly as possible a true "wall" of separation - comes not from the kind of literature that would fall within the prohibition of Reg. 210-27, but from the risk that a military commander might attempt to "deliver" his men's votes for a major-party candidate. This record, as the Court notes, presents no issue of discriminatory or improper enforcement, but that should not be taken as an indication that the issue is not one of serious dimensions. It is only a little more than a century ago that some officers of the Armed Forces, then in combat, sought to exercise undue influence either for President Lincoln or for his opponent, General McClellan, in the election of 1864.
MR. JUSTICE POWELL, concurring.
I join the Court's opinion, and express these additional thoughts.
This case presents the question whether campaign activities and face-to-face distribution of literature for other causes on a military base can be regulated and even prohibited because of the unique character of the Government property upon which the expression is to take place. Candidate respondents propose to use streets and other areas of Fort Dix that are open to the public for partisan political rallies and handbilling. Noncandidate respondents seek to distribute literature in these areas without prior approval by Fort Dix officials.
Although no prior decision of the Court is directly in point, the appropriate framework of analysis is settled. As MR. JUSTICE BRENNAN'S dissenting opinion today recognizes, First Amendment rights are not absolute under all circumstances. They may be circumscribed when necessary to further a sufficiently strong public [424 U.S. 828, 843] interest. See Pell v. Procunier, 417 U.S. 817 (1974); Adderley v. Florida, 385 U.S. 39 (1966); Cox v. Louisiana, 379 U.S. 559 (1965). But our decisions properly emphasize that any significant restriction of First Amendment freedoms carries a heavy burden of justification. See, e. g., Buckley v. Valeo, ante, at 64-65; Grayned v. City of Rockford, 408 U.S. 104, 116 -117 (1972).
An approach analogous to that which must be employed in this case was described in Grayned v. City of Rockford, supra. The Court is to inquire "whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." 408 U.S., at 116 . See also Pell v. Procunier, supra, at 822; Tinker v. Des Moines School District, 393 U.S. 503, 509 (1969). As Tinker demonstrates, it is not sufficient that the area in which the right of expression is sought to be exercised be dedicated to some purpose other than use as a "public forum," or even that the primary business to be carried on in the area may be disturbed by the unpopular viewpoint expressed. Id., at 508-509. Our inquiry must be more carefully addressed to the intrusion on the specific activity involved and to the degree of infringement on the First Amendment rights of the private parties. Some basic incompatibility must be discerned between the communication and the primary activity of an area.
In this case we deal with civilian expression in the domain of the military. Fort Dix is not only an area of property owned by the Government and dedicated to a public purpose. It is also the enclave of a system that stands apart from and outside of many of the rules that govern ordinary civilian life in our country:
I turn first to Fort Dix's ban on political activities, such as rallies, within the environs of the base. 2 With the [424 U.S. 828, 845] majority, I have concluded that the legitimate interests of the public in maintaining the reality and appearance of the political neutrality of the Armed Services in this case outweigh the interests of political candidates and their servicemen audience in the availability of a military base for campaign activities. It may be useful to elaborate on the Court's identification of these interests.
This case bears some similarity to that before the Court in CSC v. Letter Carriers, 413 U.S. 548 (1973). In that case the Court held that limitations on partisan political activities by federal employees were justified because it was necessary to insure that "the Government and its employees" in fact execute the laws impartially and that they appear to the public to be doing so, "if confidence in the system of representative Government is not to be eroded to a disastrous extent." Id., at 565. We emphasized that the limitations were narrowly drawn, leaving federal employees free to vote as they choose and to "express [their opinions] on political subjects and candidates." Id., at 575-576.
In this case we are mindful of an equally strong tradition, now nearly two centuries old, of maintaining noninvolvement by the military in politics. As the Court has pointed out, this tradition is buttressed by numerous federal laws and military regulations. Ante, at 839 n. 12. The overriding reason for preserving this neutrality is noted in MR. JUSTICE BRENNAN's dissenting opinion:
The exclusion of political rallies and face-to-face campaigning from a military base furthers both the appearance and the reality of political neutrality on the part of the military. Such an exclusion, for example, makes it less likely that candidates will fashion partisan appeals addressed to members of the Armed Services rather than to the public at large, whereas compelling bases to be open to campaigning would invite such appeals. Traditionally, candidates for office have observed scrupulously the principle of a politically neutral military and have not sought to identify or canvass a "military vote." If one candidate commences to tour military bases - or sends supporters for that purpose - others may feel compelled to follow. The temptation to focus on issues that specifically appeal to military personnel would be difficult to resist.
Even if no direct appeals to the military audience were made, the mere fact that one party or candidate consistently draws large crowds on military bases while another attracts only spotty attendance could - and probably would - be interpreted by the news media and the civilian public as indicating that the military supports one as opposed to the other. Questions also could arise as to whether pressures, direct or indirect, to support one [424 U.S. 828, 847] candidate or rally more generously than another were being exerted by commanders over enlisted personnel. And partisan political organizing and soliciting by soldiers within the base may follow.
The public interest in preserving the separation of the military from partisan politics places campaign activities on bases in a unique position. Unlike the normal civilian pedestrian and vehicular traffic that is permitted freely in Fort Dix, person-to-person campaigning may seriously impinge upon the separate and neutral status of the Armed Services in our society.
At the same time, the infringement on the individual First Amendment rights of the candidates and the servicemen is limited narrowly to the protection of the particular Government interest involved. Political communications reach military personnel on bases in every form except when delivered in person by the candidate or his supporters and agents. The prohibition does not apply to television, radio, newspapers, magazines, and direct mail. Nor could there be any prohibition on handing out leaflets and holding campaign rallies outside the limits of the base. Soldiers may attend offbase rallies as long as they do so out of uniform. The candidates, therefore, have alternative means of communicating with those who live and work on the Fort; and servicemen are not isolated from the information they need to exercise their responsibilities as citizens and voters. Our national policy has been to preserve a distinction between the role of the soldier and that of the citizen. See regulations cited ante, at 839 n. 12. A reasonable place to draw the line is between political activities on military bases and elsewhere. The military enclave is kept free of partisan influences, but individual servicemen are not isolated from participation as citizens in our democratic process. [424 U.S. 828, 848]
In sum, the public interest in insuring the political neutrality of the military justifies the limited infringement on First Amendment rights imposed by Fort Dix authorities. 3
The noncandidate respondents contest the Fort Dix regulation requiring prior approval of all handbill, pamphlet, and leaflet literature (even if nonpartisan) before distribution on the base. The public interest in military neutrality is not at issue here, but the restriction is more limited and is directed to another concern. Under Army Reg. 210-10, § 5-5 (c) (1970), permission is to be denied only where dissemination of the literature poses a danger "to the loyalty, discipline, or morale of troops." This regulation is responsive to the unique need of the military to "insist upon a respect for duty and a discipline without counterpart in civilian life." Schlesinger v. Councilman, 420 U.S. 738, 757 (1975). We have said, in Parker v. Levy, 417 U.S., at 758 , that "[t]he fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it."
Concern for morale and discipline is particularly strong where, as here, the primary function of the base is to provide basic combat training for new recruits. The basic training period is an especially difficult one for the [424 U.S. 828, 849] newly inducted serviceman, for he must learn "the subordination of the desires and interests of the individual to the needs of the service." Orloff v. Willoughby, 345 U.S. 83, 92 (1953). For the first four weeks of the program the recruit must remain on the base. The military interest in preserving a relatively isolated sanctuary during this period justifies the limited restraints placed upon distribution of literature. Although the recruits may be exposed through the media and, perhaps, the mail to all views in civilian circulation, face-to-face persuasion by someone who urges, say, refusal to obey a superior officer's command, has an immediacy and impact not found in reading papers and watching television.
As the Court points out, there is no occasion to consider whether the regulation has been misapplied - or whether there are adequate procedural safeguards in the case of an adverse decision - for the noncandidate respondents have made no effort to obtain approval.
[ Footnote 1 ] I agree with the Court that the holding today is not inconsistent with our decision in Flower v. United States, 407 U.S. 197 (1972). We stressed there that the area in which the petitioner had distributed leaflets was an "`important traffic artery'" in the city of San Antonio, equivalent in every relevant respect to a city street. Under the circumstances, the exercise of First Amendment activities along the thoroughfare was not incompatible with the neutrality or the disciplinary goals of the base proper. Fort Dix, in contrast, is a discrete military training enclave in a predominately rural area.
[ Footnote 2 ] Fort Dix Reg. 210-26 (1968) prohibits "[d]emonstrations, picketing, sit-ins, protest marches, political speeches and similar activities." It is not clear whether "similar activities" include the distribution of leaflets with a partisan political content. I find it difficult to draw a principled distinction, in terms of the neutrality interests outlined below, between a small rally, a "street walking" campaign by a candidate, and the handing out of campaign literature by a candidate or his supporter. Therefore, I will assume for purposes of this discussion that Reg. 210-26 applies to all partisan activity.
[ Footnote 3 ] Of course, if the base authorities were to permit any candidate or his supporters to engage in personal politicking on the base, the interest in military neutrality would then require that all candidates and their supporters be allowed. The base authorities cannot select among candidates and permit the supporters of some to canvass the base without engaging in improper partiality. There is no indication in the record, however, that the Fort Dix authorities ever have permitted partisan appeals to take place on the base.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs, dissenting.
Only four years ago, in a summary decision that presented little difficulty for most Members of this Court, we held that a peaceful leafleteer could not be excluded from the main street of a military installation to which the civilian public had been permitted virtually unrestricted access. Despite that decision in Flower v. United States, 407 U.S. 197 (1972), the Court today denies access to those desirous of distributing leaflets and holding a political rally on similarly unrestricted streets and parking lots of another military base. In so doing, the Court attempts to distinguish Flower from this case. That attempt is wholly unconvincing, both on the facts and in its rationale. I, therefore, dissent.
According to the Court, the record here is "indisputably [424 U.S. 828, 850] to the contrary" of that in Flower. Ante, at 837. 1 But in Flower, this Court relied on the following characterization of Fort Sam Houston - the military fort involved there - and its main street in holding that a peaceful leafleteer could not be excluded from that street.
The inconsistent results in Flower and this case notwithstanding, it is clear from the rationale of today's decision that despite Flower there is no longer room, under any circumstance, for the unapproved exercise of public expression on a military base. The Court's opinion speaks in absolutes, exalting the need for military preparedness and admitting of no careful and solicitous accommodation of First Amendment interests to the competing concerns that all concede are substantial. It parades general propositions useless to precise resolution of the problem at hand. According to the Court, "it is `the primary business of armies and navies to fight or be ready to fight wars should the occasion arise,' United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 ," ante, at 837-838, [424 U.S. 828, 852] and "it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum," ante, at 838. But the training of soldiers does not as a practical matter require exclusion of those who would publicly express their views from streets and theater parking lots open to the general public. Nor does readiness to fight require such exclusion, unless, of course, the battlefields are the streets and parking lots, or the war is one of ideologies and not men.
With similar unenlightening generality, the Court observes: "One of the very purposes for which the Constitution was ordained and established was to `provide for the common defence,' and this Court over the years has on countless occasions recognized the special constitutional function of the military in our national life, a function both explicit and indispensable." Ante, at 837. But the Court overlooks the equally, if not more, compelling generalization that - to paraphrase the Court - one of the very purposes for which the First Amendment was adopted was to "secure the Blessings of Liberty to ourselves and our Posterity," 2 and this Court over the years has on countless occasions recognized the special constitutional function of the First Amendment in our national life, a function both explicit and indispensable. 3 Despite the Court's oversight, if the recent lessons of history mean anything, it is that the First Amendment does not evaporate with the mere intonation of interests such as national defense, military necessity, or domestic security. [424 U.S. 828, 853] Those interests "cannot be invoked as a talismanic incantation to support any exercise of . . . power." United States v. Robel, 389 U.S. 258, 263 (1967). 4 See New York Times Co. v. United States, 403 U.S. 713 (1971). In all cases where such interests have been advanced, the inquiry has been whether the exercise of First Amendment rights necessarily must be circumscribed in order to secure those interests.
This principle was reaffirmed as recently as Buckley v. Valeo, ante, p. 1, where we permitted significant interference with First Amendment freedoms in order to secure this country's eminent interest in the integrity of the political process. But even there, we required the employment of "means closely drawn to avoid unnecessary abridgment." Ante, at 25. This requirement was cogently expressed and supported by MR. CHIEF JUSTICE BURGER, writing separately in Buckley:
Finally, in Pell v. Procunier, 417 U.S. 817 (1974), this Court required that even in penal institutions "First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system." Id., at 822. Accordingly, the Court did not abandon extensive analysis of the need for the restrictive prison regulation challenged there, even though "central to all other corrections goals [was] the institutional consideration of internal security within the corrections facilities themselves." Id., at 823. Today, however, the Court gives no consideration to whether it is actually necessary to exclude all unapproved public expression from a military installation under all circumstances and, more particularly, whether exclusion is required of the expression involved here. It requires no careful composition of the interests at stake. Yet, as the Court also observed in Pell, "[c]ourts cannot . . . abdicate their constitutional responsibility to delineate and protect fundamental liberties." Id., at 827. First Amendment principles especially demand no less. 6 [424 U.S. 828, 857]
True to these principles and unlike the Court's treatment of military interests, respondents' position is not that the First Amendment is unbending. Contrary to the intimations of today's decision, they do not contend that "[t]he guarantees of the First Amendment . . . [mean] `that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.'" Ante, at 836. Respondents Spock and Hobson's initial letter to the Fort Dix commander indicating their intent to campaign on the base also indicated in unequivocal terms their willingness to confine the rally to such times and places as might reasonably be designated by petitioners. 7 The [424 U.S. 828, 858] other respondents sought only to distribute leaflets in unrestricted areas. And, contrary to further intimations by today's decision, respondents do not go so far as to contend, nor did the Court of Appeals think, that "whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a `public forum' for purposes of the First Amendment," ante, at 836, or that "federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens," ante, at 838. Respondents carefully and appropriately distinguish between a military base considered as a whole and those portions of a military base open to the public. 8 And not only do respondents not go so far as to contend that open places constitute a "public forum," 9 but also they need not go so far. Flower never went so far as to find that Fort Sam Houston or its public streets were a public forum. Moreover, the determination that a locale is a "public forum" has never been erected as an absolute prerequisite to all forms of demonstrative First Amendment activity. In short, then, today's decision only serves to answer a set of broad, falsely formulated issues, and fails to provide the careful consideration of interests deserved by the First Amendment. [424 U.S. 828, 859]
It bears special note that the notion of "public forum" has never been the touchstone of public expression, for a contrary approach blinds the Court to any possible accommodation of First Amendment values in this case. In Brown v. Louisiana, 383 U.S. 131 (1966), for example, the First Amendment protected the use of a public library as a site for a silent and peaceful protest by five young black men against discrimination. There was no finding by the Court that the library was a public forum. Similarly, in Edwards v. South Carolina, 372 U.S. 229 (1963), the First Amendment protected a demonstration on the grounds of a state capital building. Again, the Court never expressly determined that those grounds constituted a public forum. And in Tinker v. Des Moines School Dist., 393 U.S. 503 (1969), the First Amendment shielded students' schoolroom antiwar protest, consisting of the wearing of black armbands. 10 Moreover, none of the opinions that have expressly characterized locales as public forums has really gone that far, for a careful reading of those opinions reveals that their characterizations were always qualified, indicating that not every conceivable form of public expression would be protected. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Cox v. New Hampshire, 312 U.S. 569 (1941); Hague v. CIO, 307 U.S. 496 (1939).
Those cases permitting public expression without characterizing the locale involved as a public forum, together with those cases recognizing the existence of a public forum, albeit qualifiedly, evidence the desirability of a [424 U.S. 828, 860] flexible approach to determining when public expression should be protected. Realizing that the permissibility of a certain form of public expression at a given locale may differ depending on whether it is asked if the locale is a public forum or if the form of expression is compatible with the activities occurring at the locale, it becomes apparent that there is need for a flexible approach. Otherwise, with the rigid characterization of a given locale as not a public forum, there is the danger that certain forms of public speech at the locale may be suppressed, even though they are basically compatible with the activities otherwise occurring at the locale.
Not only does the Court's forum approach to public speech blind it to proper regard for First Amendment interests, but also the Court forecloses such regard by studied misperception of the nature of the inquiry required in Flower. In particular, this Court found controlling in Flower the determination that the military command of Fort Sam Houston had "abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue." 407 U.S., at 198 . That was to say, that the virtually unrestricted admission of the public to certain areas of the Fort indicated that an exercise of public expression in those areas, such as distributing pamphlets, would not interfere with any military interests. Absent any interference, there could be no justification for selectively excluding every form of public expression, particularly a form no more disruptive than the civilian traffic already permitted. The abandonment required by Flower was not tantamount to a wholesale abdication of control, but rather was the yielding of base property to a use with which the exercise of the challenged form of public expression was not inconsistent. Thus, contrary to the Court's inaccurate reformulation, Flower did not go so far as to require [424 U.S. 828, 861] that the military "[abandon] any right to exclude civilian vehicular and pedestrian traffic," ante, at 835, or "[abandon] any claim of special interest in regulating" public expression before such expression would be permitted, ante, at 837. The military certainly could retain the right to exclude civilian traffic, but it could not choose freely to admit all such traffic save for the traffic in ideas. And the military certainly could retain an interest in reasonably regulating, but not in absolutely excluding, public expression. The Government does have the power "to preserve the property under its control for the use to which it is lawfully dedicated," Adderley v. Florida, 385 U.S. 39, 47 (1966) (quoted ante, at 836), provided the property remains so dedicated.
As applied in this case, the foregoing considerations require that the leaflet-distribution activities proposed by respondents be permitted in those streets and lots unrestricted to civilian traffic. Those areas do not differ in their nature and use from city streets and lots where open speech long has been protected. Hague v. CIO, supra, at 515. There is no credible claim here that distributing leaflets in those areas would impair to any significant degree the Government's interests in training recruits or, broadly, national defense. 11 See United States v. United States District Court, 407 U.S., at 321 . This case, therefore, is unlike Adderley v. Florida, supra. There, though this Court held that the First Amendment did not protect a civil rights demonstration conducted [424 U.S. 828, 862] on a jailhouse driveway, the Court was careful to observe that the "particular jail entrance and driveway were not normally used by the public," 385 U.S., at 45 , and that the jail custodian "objected only to [the demonstrators'] presence on that part of the jail grounds reserved for jail uses," id., at 47.
Unlike distributing leaflets, political rallies present some difficulty because of their potential for disruption even in unrestricted areas. But that a rally is disruptive of the usual activities in an unrestricted area is not to say that it is necessarily disruptive so as significantly to impair training or defense, thereby requiring its prohibition. Additionally, this Court has recognized that some quite disruptive forms of public expression are protected by the First Amendment. See Edwards v. South Carolina, 372 U.S. 229 (1963); Terminiello v. Chicago, 337 U.S. 1 (1949); Cantwell v. Connecticut, 310 U.S. 296 (1940). In view of respondents' willingness to submit to reasonable regulation as to time, place, and manner, it hardly may be argued that Fort Dix's purpose was threatened here. Without more, it cannot be said that respondents' proposed rally was impermissible.
It is no answer to say that the commander of a military installation has the "historically unquestioned power . . . to exclude civilians from the area of his command." Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 893 (1961). The Court's reliance on this proposition from Cafeteria Workers is misplaced. That case was only concerned with the procedural requisites for revocation of a security clearance on a military base, not with the range of permissible justifications for such revocation and, thereby, exclusion. Indeed, the "privilege" doctrine upon which rested the sweeping powers suggested by that case has long since been repudiated. Board of Regents v. Roth, 408 U.S. 564 (1972). But more important. that decision specifically recognized that [424 U.S. 828, 863] the Government was constrained by specific constitutional limitations, even in the exercise of its proprietary military functions. 367 U.S., at 897 . Where the interference with Fort functions by public expression does not differ from that presented by other activities in unrestricted areas, the Fort command may no more preclude such expression, than "`Congress may . . . "enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office."'" Ibid., quoting United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947).
Similarly, it is no answer to say that the proposed activities in this case may be excluded because similar forms of expression have been evenhandedly excluded. An evenhanded exclusion of all public expression would no more pass constitutional muster than an evenhanded exclusion of all Roman Catholics. In any event, there can be no assertion that evenhanded exclusion here has in fact been the case because, as the Court implicitly concedes, ante, at 839, there have been no other instances where the privilege of engaging in public expression on the Fort was advanced.
Additionally, prohibiting the distribution of leaflets cannot be justified on the ground that that expression presents a "clear danger to [military] loyalty, discipline, or morale." Ante, at 840. This standard for preclusion is, in the face of a well-developed line of precedents, constitutionally inadequate. This Court long ago departed from "clear and present danger" as a test for limiting free expression. See Hess v. Indiana, 414 U.S. 105 (1973); Brandenburg v. Ohio, 395 U.S. 444 (1969); Edwards v. South Carolina, supra; Scales v. United States, 367 U.S. 203 (1961); Yates v. United States, 354 U.S. 298 (1957); Dennis v. United States, 341 U.S. 494 (1951). Yet the Court today, without reason, would fully reinstate that test and, indeed, would only require that the danger be clear, not even present. Ante, at [424 U.S. 828, 864] 840. As Mr. Justice Holmes observed in dissent better than a half century ago: "It is only the present danger of immediate evil or an intent to bring it about that warrants . . . setting a limit to the expression of opinion." Abrams v. United States, 250 U.S. 616, 628 (1919). "Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the [First Amendment]." Id., at 630-631. Accepting for the moment, however, the validity of a "clear danger" test, I do not see, nor does the Court's opinion demonstrate, how a clear danger is presented in this case. No one has seriously contended that the activities involved here presented such a danger to military loyalty, discipline, or morale.
The response that no such showing was required in this case because respondents failed to furnish for prior approval the material they proposed for distribution will not suffice. 12 I first note that in view of the Court's essentially blanket preclusion of public expression from military installations, it is unnecessary for the Court [424 U.S. 828, 865] to reach this issue - save to the extent the Court unwittingly concedes the tenuousness of its total ban. Alexander v. Louisiana, 405 U.S. 625 (1972); Ashwander v. TVA, 297 U.S. 288, 346 -348 (1936) (Brandeis, J., concurring). See Rescue Army v. Municipal Court, 331 U.S. 549 (1947). Most important, however, in advancing such a justification, the Court engages in a rude refusal even to acknowledge the firmly fixed limitation on governmental control of First Amendment activity afforded by the doctrine against prior restraints. The illegality of the restraint sought to be imposed in this case obviated any requirement that respondents submit to it, thereby risking irreparable injury to First Amendment interests. See New York Times Co. v. United States, 403 U.S., at 725 -726, and n. (1971) (BRENNAN, J., concurring); Freedman v. Maryland, 380 U.S. 51 (1965).
Requiring prior approval of expressive material before it may be distributed on base constitutes a system of prior restraint, 13 Freedman v. Maryland, supra; Times Film Corp. v. Chicago, 365 U.S. 43 (1961); a system "bearing a heavy presumption against its constitutional validity." Southeastern Promotions, Ltd. v. Conrad, 420 U.S., at 558 ; New York Times Co. v. United States, supra, at 714; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931). "Our distaste for censorship - reflecting the natural distaste of a free people - is deep-written in our law." Southeastern Promotions, Ltd. v. Conrad, supra, at 553. The Court's tacit approval of the prior restraint imposed under Fort Dix Reg. 210-27 is therefore deeply disturbing. Not only does the Court approve a procedure whose validity need not even be considered in this case, but also it requires no rebuttal of the heavy presumption against [424 U.S. 828, 866] that validity. And I seriously doubt that the presumption would fall in this case.
First, while not every prior restraint is per se unconstitutional, the permissibility of such restraints has thus far been confined to a limited number of contexts. Southeastern Promotions, Ltd. v. Conrad, supra, at 559. The imposition of prior restraints on speech or the distribution of literature in public areas has been consistently rejected, except to the extent such restraints sought to control time, place, and circumstance rather than content. See Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Hague v. CIO, 307 U.S. 496 (1939); Lovell v. City of Griffin, 303 U.S. 444 (1938). Similarly, the content-oriented prior restraint of Reg. 210-27 has no place in the open areas of Fort Dix.
Second, "[t]he settled rule is that a system of prior restraint `avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.'" Southeastern Promotions, Ltd. v. Conrad, supra, at 559, quoting Freedman v. Maryland, supra at 58. But neither Fort Dix regulations nor any other applicable Army or Department of Defense guidelines require a prompt determination that publications may be distributed on the Fort. At the very least, therefore, there should be a requirement that the Fort commander promptly approve or disapprove publications proposed for distribution, lest failure to make a determination effectively result in censorship. See Blount v. Rizzi, 400 U.S. 410 (1971); Southeastern Promotions, Ltd. v. Conrad, supra; Freedman v. Maryland, supra.
The Court's final retreat in justifying the prohibitions upheld today is the principle of military neutrality. According to the Court, the military authorities of Fort Dix were free to pursue "the American constitutional tradition [424 U.S. 828, 867] of a politically neutral military." Ante, at 839. I could not agree more that the military should not become a political faction in this country. It is the lesson of ancient and modern history that the major socially destabilizing influence in many European and South American countries has been a highly politicized military. But it borders on casuistry to contend that by evenhandedly permitting public expression to occur in unrestricted portions of a military installation, the military will be viewed as sanctioning the causes there espoused. 14 If there is any risk of partisan involvement, real or apparent, it derives from the exercise of a choice, in this case, the Fort commander's choice to exclude respondents, while, for example, inviting speakers in furtherance of the Fort's religious program. 15 Additionally, the Court would do well to consider the very real system of prior restraint operative at Fort Dix, for the very fact that literature distributed on the Fort is subject to that system fosters the impression that it is disseminated with a military imprimatur. [424 U.S. 828, 868]
More fundamentally, however, the specter of partiality does not vanish with the severing of all partisan contact. It is naive to believe that any organization, including the military, is value neutral. More than this, where the interests and purpose of an organization are peculiarly affected by national affairs, it becomes highly susceptible of politicization. For this reason, it is precisely the nature of a military organization to tend toward that end. 16 That tendency is only facilitated [424 U.S. 828, 869] by action that serves to isolate the organization's members from the opportunity for exposure to the moderating influence of other ideas, particularly where, as with the military, the organization's activities pervade the lives of its members. For this reason, any unnecessary isolation only erodes neutrality and invites the danger that neutrality seeks to avoid.
In Hudgens v. NLRB, ante, p. 507, as in today's decision, this Court recently moved to narrow the opportunities for free expression in our society. In Hudgens, the Court also preached of its institutional duty to declare overruled a case whose rationale did not survive that of a succeeding case. I would maintain that the Court's duty is to recognize the irreconcilability of two decisions and then to explain why it chooses one over the other. But accepting for the moment the Court's perception of its duty, I note that the Court today declines to overrule Flower. I presume, therefore, that some meaningful distinction must exist between that decision and today's. But if any significant distinction remains between the cases, it is that in Flower the private party was an innocuous leafleteer and here the private parties include one of this country's most vociferous opponents of the exercise of military power. 17 That [424 U.S. 828, 870] is hardly a distinction upon which to render a decision circumscribing First Amendment protections.
I would, for these reasons, affirm the judgment of the Court of Appeals. [424 U.S. 828, 871]
[ Footnote 1 ] In support of its characterization of the record as "indisputably to the contrary," the Court points to the Fort commander's response to respondent Spock's initial request to campaign at the Fort. Ante, at 837 n. 7. According to the Court, the commander's refusal to permit Spock's rally indicated that the military authorities had not "`abandoned any claim [of] special interests in who walks, talks, or distributes leaflets . . . .'" See ante, at 837, quoting Flower v. United States, 407 U.S., at 198 . The commander's response, however, came subsequent to a history of unimpeded civilian access to Fort Dix. Thus its after-the-fact, self-serving nature no more supports the assertion that the military authorities had not "abandoned any claim" than did the arrest of the defendant in Flower.
[ Footnote 2 ] U.S. Const., Preamble. See also U.S. Const., Amdt. 1.
[ Footnote 3 ] See, e. g., Buckley v. Valeo, ante, p. 1; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); New York Times Co. v. United States, 403 U.S. 713 (1971); Cohen v. California, 403 U.S. 15 (1971); Brandenburg v. Ohio, 395 U.S. 444 (1969); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).
[ Footnote 4 ] Indeed, as Mr. Chief Justice Warren observed in invalidating a portion of the Subversive Activities Control Act of 1950 as an unconstitutional abridgment of the First Amendment right of association:
[ Footnote 5 ] The Court went on to observe and conclude:
[ Footnote 6 ] The concurring opinion of my Brother POWELL properly recognizes at least the need for careful inquiry in such cases. But I completely disagree with his characterization of the need to secure the Government's interest in a politically neutral military as an interest protected by prohibiting conduct of "symbolic incompatibility" with a military base. Ante, at 844. I gather that by this notion of "symbolic incompatibility," my Brother POWELL means only to accord recognition to the interest in neutrality, an interest qualitatively different from the more immediate functional interest [424 U.S. 828, 857] in training recruits. I, of course, have no quarrel with recognition of the interest. See infra, at 867. But that recognition as articulated by my Brother POWELL is so devoid of limiting principle as to contravene fundamentals of First Amendment jurisprudence. This Court many times has held protected by the First Amendment conduct which was "symbolically incompatible" with the activity upon which it impacted. See Spence v. Washington, 418 U.S. 405 (1974); Procunier v. Martinez, 416 U.S. 396 (1974); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Indeed, the very symbolisms of many of our institutions have been the subject of criticisms held to be unassailably protected by the First Amendment.
[ Footnote 7 ] Spock and Hobson's letter, dated September 9, 1972, stated in pertinent part:
[ Footnote 8 ] Brief for Respondents 23, 25-26.
[ Footnote 9 ] See id., at 25-26.
[ Footnote 10 ] Significantly, the Court observed in Tinker: "There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone." 393 U.S., at 508 .
[ Footnote 11 ] The only threat to their "mission" that military officials were able to articulate consisted of concerns that distributing leaflets or having a rally could possibly create crowds, engender partisan discussion, start an argument, or incite riots. E. g., 1 App. 43-46, 48-49, 50-51, 64. "But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker v. Des Moines School Dist., 393 U.S., at 508 .
[ Footnote 12 ] The Court further observes that the noncandidate respondents were also "excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution." Ante, at 840. This justification is wholly inadequate. It assumes that prior approval could have been validly required the first time respondents were excluded. As argued in the text, this page and 865-866, that assumption is incorrect. But even if it is correct, failure once to have sought approval clearly may not of itself justify exclusion when approval is sought on a subsequent occasion. First, 18 U.S.C. 1382 only prohibits unapproved re-entry of those who have once been excluded from a military base; it does not give a base commander warrant for excluding such individuals on all future occasions. Second, if the activity for which those individuals seek subsequent approval is protected by the First Amendment, the fort commander may no more disapprove that activity because of the past transgression, than prohibit a person once convicted of selling obscene material from future sales of Lady Chatterley's Lover.
[ Footnote 13 ] Where a demonstrator seeks use of an area serving an inconsistent use, however, the restraint then permissible is, of course, not only prior, but absolute.
[ Footnote 14 ] As I observed in dissenting from this Court's decision upholding the preclusion of political, but not commercial, advertisement from municipally run buses:
[ Footnote 15 ] 1 App. 54-55.
[ Footnote 16 ] The testimony in the District Court of the officer representing the commanding officer of Fort Dix is exemplary:
[ Footnote 17 ] My Brother POWELL's concurrence correctly so highlights this case: "Traditionally, candidates for office have observed scrupulously the principle of a politically neutral military and have not sought to identify or canvass a `military vote.'" Ante, at 846. I do not believe, however, that the principle of military neutrality goes so [424 U.S. 828, 870] far as to control the content or the audience of address of political speech. And I can think of no poorer warrant for abridging the values protected by the First Amendment than tradition. The principle of military neutrality is concerned, not with precluding exposure of the military to political issues, but with preventing the military from becoming a political faction by its very isolation from political discourse or selective exposure to such discourse. See n. 16, supra. To be sure, "[a]lthough the recruits may be exposed through the media and, perhaps, the mail to all views in civilian circulation, face-to-face persuasion by someone who urges, say, refusal to obey a superior officer's command, has an immediacy and impact not found in reading papers and watching television." Ante, at 849. But there is here no allegation of such an immediate threat to base order. Nor do I perceive any basis for properly imputing the threat of such illegal conduct to respondent Spock or any of the other respondents.
MR. JUSTICE MARSHALL, dissenting.
While I concur fully in MR. JUSTICE BRENNAN'S dissent. I wish to add a few separate words. I am deeply concerned that the Court has taken its second step in a single day toward establishing a doctrine under which any military regulation can evade searching [424 U.S. 828, 873] constitutional scrutiny simply because of the military's belief - however unsupportable it may be - that the regulation is appropriate. We have never held - and, if we remain faithful to our duty, never will hold - that the Constitution does not apply to the military. Yet the Court's opinions in this case and in Middendorf v. Henry, 425 U.S. 25 , holding the right to counsel inapplicable to summary court-martial defendants, go distressingly far toward deciding that fundamental constitutional rights can be denied to both civilians and servicemen whenever the military thinks its functioning would be enhanced by so doing.
The First Amendment infringement that the Court here condones is fundamentally inconsistent with the commitment of the Nation and the Constitution to an open society. That commitment surely calls for a far more reasoned articulation of the governmental interests assertedly served by the challenged regulations than is reflected in the Court's opinion. The Court, by its unblinking deference to the military's claim that the regulations are appropriate, has sharply limited one of the guarantees that makes this Nation so worthy of being defended. I dissent.