Ethredge v. Hail

United States Court of Appeals,

Eleventh Circuit.

No. 94-8638.

Jesse ETHREDGE, Plaintiff-Appellant,

v.

Robert HAIL, Deputy Base Commander of Robins Air Force Base, in
His Official Capacity as an Officer and Agent of the United States
Air Force, as Agency of the United States of America, Defendant-
Appellee.

June 29, 1995.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 92-CV-187-2-MAC (DF)), Duross
Fitzpatrick, Chief Judge.

Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and YOUNG*, Senior District Judge.

HATCHETT, Circuit Judge:

In this case, we affirm the district court's ruling that an

administrative order that bars from Robins Air Force Base "bumper

stickers or other similar paraphernalia" that "embarrass or

disparage" the President of the United States does not violate the

First Amendment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant, Jesse Ethredge, has worked for the United States

Air Force as a civilian aircraft mechanic for over twenty-five

years. Ethredge drives to work on Robins Air Force Base ("RAFB" or

"the base") four to six times a week, and, until October 1991, used

his truck for transportation to and from the base.

The principal military organization at RAFB, the Warner Robins

*
Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
Air Logistics Center, provides maintenance and repair services to

combat and transport aircraft, and acquires and manages items

essential to the Air Force's operations. Other organizations on

the base provide combat support, including refueling and

communications services. Because access to the base is highly

restricted, the Air Force considers RAFB a "closed base."

In 1984, Ethredge affixed stickers to the rear window of his

truck top to read "HELL WITH REAGAN." Ethredge displayed this

message to protest the Reagan administration's policies concerning

unions and the civil service retirement system. Ethredge kept this

sign on his truck until the end of President Reagan's tenure.

Although a RAFB employee complained about the sign, officials took

no action to require Ethredge to remove it.

After President Bush assumed office, Ethredge changed the

stickers on his truck to state "READ MY LIPS HELL WITH GEO BUSH"

and "FORGIVE BUSH NOT EGYPT HE LIED." Ethredge displayed these

messages to protest President Bush's agreement to raise taxes,

despite a campaign pledge to the contrary, and the decision to

forgive certain debts Egypt owed to the United States.

Military personnel filed complaints about this sign. In

addition, Colonel Robert M. Hail, deputy base commander at the

time, received anonymous telephone calls from persons stating that

if they saw the sign again, they would break the windows of

Ethredge's truck. In 1991, Major General Richard F. Gillis, the

installation commander of RAFB, directed Colonel Hail to order

Ethredge to remove the sign from his truck while on the base. On

October 17, 1991, Ethredge received a written order from Colonel
Hail, which stated, in relevant part:

1. As Robins Air Force Base (AFB) is a military installation,
bumper stickers or other similar paraphernalia which embarrass
or disparage the Commander in Chief are inappropriate as they
have a negative impact on the good order and discipline of the
service members stationed at Robins AFB....

2. You are hereby ordered, while at Robins AFB, to remove all
bumper stickers that contain disparaging or embarrassing
comments about the Commander in Chief of the United States of
America. You have 12 hours to accomplish this order. Failure
to comply with this lawful order will result in administrative
action.

Instead of removing the stickers, Ethredge drove another

vehicle to work. He then instituted this lawsuit, alleging that

the administrative order violates the First Amendment. Ethredge

sought preliminary and permanent injunctions prohibiting

enforcement of the order, and a declaratory judgment declaring it

unconstitutional.

Following a hearing, the district court denied Ethredge's

motion for a preliminary injunction, finding that he had not

established a clear likelihood of success on the merits of his

claim. Ethredge v. Hail, 795 F.Supp. 1152, 1159 (M.D.Ga.1992)

(Ethredge I). Specifically, the court held that the order was

viewpoint neutral and reasonable, and that Ethredge's sign

constituted a clear danger to the discipline, loyalty, and morale

of Air Force personnel on RAFB. Ethredge I at 1156-59. Ethredge

took an interlocutory appeal of the district court's determination.

After Ethredge instituted that appeal, however, President

Clinton commenced his term in office and this court concluded that

the change in the office of President rendered Ethredge's appeal

moot:

[B]y its terms the motion for preliminary injunction seeks
 relief solely as to Ethredge's anti-Bush stickers. But
former-President Bush is no longer in office. Consequently,
the administrative order no longer forbids Ethredge's
anti-Bush stickers. It does not appear that Ethredge is being
precluded from displaying his anti-Bush stickers
notwithstanding the order's inapplicability to them. Thus, no
live controversy remains with respect to Ethredge's request
for preliminary injunctive relief.

Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir.1993) (Ethredge II

). This court also determined that the issues raised in Ethredge's

requests for a permanent injunction and declaratory judgment "may

remain live notwithstanding President Bush's departure from the

White House." Ethredge II at 1176. Thus, this court remanded the

case to the district court. Ethredge II at 1177.

In April 1993, following oral argument in Ethredge II but

before this court had rendered its decision, Ethredge removed the

stickers stating "FORGIVE BUSH NOT EGYPT HE LIED" from the rear

window of his truck and replaced them with stickers reading "HELL

WITH CLINTON AND RUSSIAN AID." On August 24, 1993, RAFB's legal

counsel informed Ethredge's lawyer that the October 17, 1991, order

"would apply to the latest sign." Consequently, after remand,

Ethredge amended his complaint to include his sign concerning

President Clinton.

Following discovery, the parties filed cross-motions for

summary judgment. The district court granted summary judgment for

the appellee "[f]or [the] reasons stated" in Ethredge I. This

appeal followed.

CONTENTIONS

Ethredge contends that the administrative order barring signs

that "embarrass or disparage" the President is not viewpoint

neutral, but, rather, impermissibly favors the viewpoint of
supporters of the President. He also argues that military

officials have no right to exclude his sign from RAFB because they

have not demonstrated that the sign poses a clear and present

danger to military loyalty, morale, or order. Finally, Ethredge

asserts that the order prohibiting his sign is unreasonable and

overly broad.

The government responds that the administrative order does not

proscribe any sign because of the political view expressed; thus,

the order is not unconstitutionally viewpoint-based. The

government also argues that the order constitutes a reasonable

exercise of the authority of military officials to exclude on-base

speech that interferes with military effectiveness.

DISCUSSION

We review the district court's ruling on the

constitutionality of the RAFB administrative order under the de

novo standard. See Redner v. Dean, 29 F.3d 1495, 1499 (11th

Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1697, 131 L.Ed.2d

560 (1995).

The extent to which the government can restrict speech

"depends on the nature of the relevant forum." Cornelius v. NAACP

Legal Defense & Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439,

3448, 87 L.Ed.2d 567 (1985). The Supreme Court has adopted a

"forum analysis" for determining First Amendment claims involving

governmental property. Cornelius, 473 U.S. at 800, 105 S.Ct. at

3448. The Court's framework divides governmental property into

three categories: traditional public forums, created public

forums, and nonpublic forums. See, e.g., Perry Educ. Assoc. v.
Perry Local Educators' Assoc., 460 U.S. 37, 45-46, 103 S.Ct. 948,

955, 74 L.Ed.2d 794 (1983). No question exists that RAFB

constitutes a nonpublic forum. See, e.g., United States v.

Albertini, 472 U.S. 675, 686, 105 S.Ct. 2897, 2905, 86 L.Ed.2d 536

(1985) ("Military bases generally are not public fora...."); Greer

v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505

(1976) ("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 ... historically and constitutionally false."). "Once

speech enters the realm of nonpublic forums the government's power

over its regulation increases dramatically." M.N.C. of Hinesville

v. United States Dep't of Defense, 791 F.2d 1466, 1474 (11th

Cir.1986). Accordingly, military officials at RAFB may impose a

regulation on speech so long as the restriction "is reasonable and

not an effort to suppress expression merely because public

officials oppose the speaker's view." Perry, 460 U.S. at 46, 103

S.Ct. at 955.1

Ethredge first argues that the administrative order

impermissibly regulates the display of constitutionally protected

speech based on the viewpoint of the speaker. Under the

regulation, officials bar signs that "embarrass or disparage" the

President, but permit signs that praise the President or embarrass

1
Ethredge's status as a civilian worker on the base does not
affect our analysis. A military commander's authority to bar
persons or speech from a base extends to civilians. See, e.g.,
Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886,
892-94, 81 S.Ct. 1743, 1747-48, 6 L.Ed.2d 1230 (1961); Greer,
424 U.S. at 838, 96 S.Ct. at 1217.
or disparage the President's political opponents. Therefore,

Ethredge asserts, the order treats speakers differently depending

upon whether they praise or attack the President. The officials

grant supporters of the President free reign to support the

President and disparage his opponents, while it mandates that

political opponents of the President express criticism of the

Commander in Chief in a sanitized (i.e., not embarrassing or

disparaging) manner. See R.A.V. v. City of St. Paul, --- U.S. ----

, ----, 112 S.Ct. 2538, 254, 120 L.Ed.2d 305 (1992) (the government

"has no ... authority to license one side of a debate to fight

freestyle, while requiring the other to follow Marquis of

Queensbury Rules").

Ethredge is correct in asserting that "[t]he prohibition

against viewpoint discrimination is firmly embedded in first

amendment analysis." Searcey v. Harris, 888 F.2d 1314, 1325 (11th

Cir.1989). But, his contention that the order discriminates

against speakers depending upon their viewpoint is incorrect.

First, as Ethredge acknowledges, the order does not prohibit

criticism of the President. Military officials at RAFB permit

vehicles on the base that have bumper stickers clearly critical of

the President.2 Second, and even more fatal to Ethredge's claim,

the order in no way limits the application of the restriction to

opponents of the President. The order simply prohibits "bumper

stickers or other paraphernalia which embarrass or disparage" the

Commander in Chief. Thus, the order applies to supporters of the

2
One such bumper sticker reads, "Bill Clinton has what it
takes to take what you have." Another states, "Defeat Clinton in
'96."
President as well. Indeed, we can imagine signs or messages that,

although intended to be supportive of the President, may (due to a

profane nature, for example) embarrass or disparage the President.

Such signs would also be excluded from RAFB under the

administrative order. Therefore, we reject Ethredge's assertion

that the order treats speakers differently depending upon whether

they express a view supporting or opposing the President.

Ethredge next argues, relying on Priest v. Secretary of Navy,

570 F.2d 1013, 1017 (D.C.Cir.1977), that military officials had to

demonstrate that his sign "tended to interfere with responsiveness

to command or to present a clear danger to military loyalty,

discipline, or morale" before they could permissibly issue the

administrative order.

Ethredge's reliance on Priest is misplaced. The court in

Priest found that "[t]he government does not have the burden of

showing a causal relationship between [the banned activity] and

specific examples of weakened loyalty, discipline or morale...."

Priest, 570 F.2d at 1018. In fact, Priest merely approved a

military judge's instruction that required the court-martial to

find that the defendant's publications "tended to interfere with

responsiveness to command or to present a clear danger to military

loyalty, discipline, or morale" in order to sustain his criminal

conviction under the Uniform Code of Military Justice (UCMJ).

Priest, 570 F.2d at 1017.

Contrary to Ethredge's assertion, military officials need not

demonstrate actual harm before implementing a regulation

restricting speech. See Greer, 424 U.S. at 840, 96 S.Ct. at 1218
("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."). See also Cornelius, 473 U.S. at 810, 105

S.Ct. at 3453 ("[T]he government need not wait until havoc is

wreaked to restrict access to a nonpublic forum."). Thus,

officials at RAFB had a right to promulgate the order in response

to their evaluation that Ethredge's sign constituted a clear danger

to military order and morale. The government submitted evidence

that the installation commanders made such an evaluation.

Finally, Ethredge urges that the administrative order is

unreasonable and overly broad. The reasonableness of a restriction

on access to a nonpublic forum "must be assessed in the light of

the purpose of the forum and all the surrounding circumstances."

Cornelius, 473 U.S. at 809, 105 S.Ct. at 3453. Therefore, we must

remain mindful that "[t]he military need not encourage debate or

tolerate protest to the extent that such tolerance is required of

the civilian state by the First Amendment; to accomplish its

mission the military must foster instinctive obedience, unity,

commitment, and esprit de corps." Goldman, 475 U.S. at 507, 106

S.Ct. at 1313. Moreover, in assessing the reasonableness of the

restriction, no requirement exists "that the restriction be

narrowly tailored." Cornelius, 473 U.S. at 809, 105 S.Ct. at 3452.

In fact, the restriction "need not be the most reasonable or the

only reasonable limitation." Cornelius, 473 U.S. at 808, 105 S.Ct.

at 3452. We reject Ethredge's contention that the administrative

order is unreasonable. First, the order does not prohibit robust
criticism of the President; instead, it bars only those messages

that "embarrass or disparage" the Commander in Chief. Second,

under the UCMJ the military can impose discipline against its

members for displaying similar signs. See 10 U.S.C. § 888 ("Any

commissioned officer who uses contemptuous words against the

President ... shall be punished as a court-martial may direct.");

10 U.S.C. § 889 (any military member "who behaves with disrespect

toward his superior commissioned officer shall be punished as a

court-martial may direct"). Finally, Major General Gillis and his

successor as installation commander, Major General William P.

Hallin, stated in affidavits that they believed that Ethredge's

sign would undermine military order, discipline, and

responsiveness.3 We must give great deference to the judgment of

these officials:

[C]ourts must give great deference to the professional
judgment of military authorities concerning the relative
importance of a particular military interest. Not only are
courts ill-equipped to determine the impact upon discipline
that any particular intrusion upon military authority might
have, but the military authorities have been charged by the
Executive and Legislative Branches with carrying out our
Nation's military policy.

Goldman v. Weinberger, 475 U.S. 503, 507-08, 106 S.Ct. 1310, 1313,

89 L.Ed.2d 478 (1986) (citations and internal quotations omitted).

In short, military officials at RAFB had sufficient justification

to enact the administrative order, and the order constitutes a

3
We note that in making this determination, the installation
commanders possessed evidence that Ethredge's sign had caused
some disruption on the base. The record shows that service
members complained about Ethredge's anti-Bush sign, finding it
offensive and damaging to morale. Also, anonymous telephone
callers contacted Colonel Hail and communicated that they
intended to break the windows of Ethredge's truck.
reasonable exercise of their authority.4

Ethredge's argument that the order is overly broad fails under

the principles expressed in Parker v. Levy, 417 U.S. 733, 94 S.Ct.

2547, 41 L.Ed.2d 439 (1974). In Parker, the Supreme Court rejected

overbreadth and vagueness challenges to Article 133 of the UCMJ, 10

U.S.C. § 933, providing punishment for "conduct unbecoming an

officer and a gentleman," and Article 134 of the UCMJ, 10 U.S.C. §

934, proscribing, among other things, "all disorders and neglects

to the prejudice of good order and discipline in the armed forces."

Parker, 417 U.S. at 757, 94 S.Ct. at 2562. The administrative

order at issue here is no more vulnerable to an overbreadth

challenge than were Articles 133 and 134. The challenged order

calls for military authorities to make a judgment concerning

whether particular signs "embarrass or disparge" the President, the

head of the chain of command. As with Articles 133 and 134,

"[t]here is a wide range of ... conduct ... to which [the

challenged order] may be applied without infringement of the First

Amendment." Parker, 417 U.S. at 760, 94 S.Ct. at 2564. Thus, the

fact that "there may lurk at the fringes ... some possibility that

conduct which would be ultimately held to be protected by the First

Amendment could be included within [the order's] prohibition" is

"insufficient to invalidate" the order. Parker, 417 U.S. at 760-

61, 94 S.Ct. at 2564.

In sum, "[t]he military establishment is subject to the

4
The fact that officials took no action regarding Ethredge's
"HELL WITH REAGAN" sign does not change our view. The evidence
shows that the installation commander during that period had no
knowledge of the existence of the sign.
control of the civilian commander in chief and the civilian

departmental heads under him, and its function is to carry out the

policies made by those civilian superiors." Parker, 417 U.S. at

751, 94 S.Ct. at 2559. We hold that the administrative order

constitutes a reasonable exercise of the authority that military

officials possess in determining how best to fulfill this function.

CONCLUSION

We hold that the administrative order barring from RAFB

"bumper stickers or other paraphernalia" which "embarrass or

disparage" the President is viewpoint neutral and reasonable.

Accordingly, the order does not violate the First Amendment.

Therefore, we affirm the judgment of the district court.

AFFIRMED.