(dissenting):
A war unpopular with many people, including soldiers, presents the courts with complicated new problems.1
This difficulty seems evident to me in the majority opinion which relies heavily upon Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842 (1953), for the proposition that the courts shouldn’t interfere with internal military matters on the one hand, while suggesting that if the appellee had made “a stronger showing” or had “a stronger case than this one” we might interfere. If we do not have the power to interfere with military transfer orders or other similar discipline, I believe we should say so, and be done with it. But if we do have such power then it seems to me we must abide by a trial court’s findings, even when they interfere with the military, unless they are “clearly erroneous,” Rule 52(a), Fed.R.Civ.P. These findings, and the trial court’s well reasoned and persuasive conclusions of law, are set forth in published form, Cortright v. Resor, 325 F.Supp. 797 (E.D.N.Y.1971).
Do the courts have the power to interfere with military proscription of basic civil rights when exercised by soldiers off duty? The Government has conceded tht by joining the armed forces a citizen does not surrender all of his First Amendment rights. DOD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces,” and DOD Directive 1344.10, “Political Activities by Members of the Armed Forces.” Certainly employment by the Government in and of itself does not result in total relinquishment of First Amendment rights. Pickering v. Board of Education, 391 U.S. 563, 568-570, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Fahy, J., dissenting in Turner v. Kennedy, 118 U.S.App.D.C. 104, 332 F.2d 304, 307 cert. denied, 379 U.S. 901, 85 S.Ct. 189, 13 L.Ed.2d 175 (1964); Swaaley v. United States, 180 Ct.Cl. 1, 376 F.2d 857 (1967); Steck v. Connally, 199 F.Supp. 104 (D.D.C.1961). See also Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822 (1968). While it may be true, in Professor Emerson’s phrase, that the principles governing a civilian system of freedom of expression do not necessarily govern in a system of military operation, that “does not imply that the First Amendment has no application to the military system.” Emerson, The System of Freedom of Expression 210-11 (1970). This court has itself protected First Amendment rights of draftees. Wolff v. Local Board No. 16, 372 F.2d 817, 820 (2d Cir. 1967). See also Breen v. Selective Service Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970); Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). The military, it would seem, is subject to some of the Constitution. Yahr v. *256Resor, 431 F.2d 690 (4th Cir. 1970); Dash v. Commanding General, 307 F. Supp. 849 (D.S.C.1969), aff’d, 429 F.2d 427 (4th Cir. 1970), cert. denied, 401 U.S. 981, 91 S.Ct. 1192, 28 L.Ed.2d 333 (Mar. 22, 1971); Locks v. Laird, 300 F.Supp. 915 (N.D.Cal.1969). See also Kiiskila v. Nichols, 433 F.2d 745 (7th Cir. 1970) (en banc) (civilian employee of Army base credit union may not be prohibited from distributing antiwar literature near base or from on-base conversation with officer).2 This is a case unlike United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969), where only an abuse of military discretion was claimed. Here we are dealing with freedom of expression, still a most basic constitutional right. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (June 30, 1971).
Soldiers must be held to have basic civil rights, including those of petitioning the Government for a redress of grievances and speaking freely off-duty. The Government here, as has been said, doesn’t really argue that soldiers don't have these basic rights, at least off-duty, but this is still the fundamental question. It must be answered in the affirmative for the safety of the country: a Specialist Cortright and a General Gavin must equally be permitted to persuade the public, the Congress or the Executive that, for example, a given course of military-diplomatic action or foreign policy is wrong. See New York Times Co. v. Sullivan, 376 U.S. 254, 269-270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ; Dash v. Commanding General, 307 F.Supp. 849 (D.S.C.1969), aff’d, 429 F.2d
427 (4th Cir. 1970), cert, denied, 401 U.S. 981, 91 S.Ct. 1192, 28 L.Ed.2d 333 (1971); L. Hand, Sources of Tolerance, quoted in The Spirit of Liberty 66, 82 (Knopf 1952); cf. Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed. 2d 1408 (1957).
With the premise that the courts do have some power to interfere even with a military restriction on First Amendment rights under proper circumstances, we may then address ourselves to the question of what the proper circumstances are for such interference. It is plain, and conceded, that they are not the same as in the case of a civilian exercise of freedom of expression. Emerson, supra, 210-11. There is an obvious difference, first, between utterances relating to the performance of the particular job of the soldier or the functions of his unit on the one hand and expressions not connected with his job on the other. See Emerson, supra, 568. Thus it would plainly be, and I trust the majority would concede it, improper for the military to interfere with a soldier’s protest of governmental civil rights policies in general, expressed, say, in a newspaper advertisement.2 3 Is off-duty dissent to the Government’s policy in waging war 4 by a soldier so intimately connected with a military man’s job that in and of itself such dissent constitutes interference with that job? I think not, since comment on war policy is on a matter of public concern, at least where the comment is fair, that is to say not knowledgeably erroneous in fact or in reckless disregard of the truth. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Whether such a comment may in and of itself lead to “intolerable disharmony,” *257warranting discipline, as suggested in Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822 (1968) (aff’d en banc May 12, 1969),5 need not be spelled out in this case, in view of the findings of the court below.
It is not, I believe, our duty or our privilege to reconstruct the evidence in our own mould. Rather, we are to take the evidence in the case given to us by the trial judge, who has seen and heard the witnesses and has had the first hand observation for which the printed page is no substitute. The Rules of Civil Procedure say so. Rule 52(a), Fed.R. Civ.P. The cases from this circuit say so. E. g., Gruja v. United States Lines Co., 337 F.2d 375 (2d Cir. 1964). For perhaps the best recent exposition of the appellate court’s function, Lundgren v. Freeman, 307 F.2d 104, 113-115 (9th Cir. 1962), may be referred to:
* * * we may not substitute our judgment if conflicting inferences may be drawn from the established facts by reasonable men, and the inferences drawn by the trial court are those which could have been drawn by reasonable men. 307 F.2d at 113.
The majority opinion, as I read it, relies almost exclusively on the July 4 incident involving four wives of band members and Cortright’s fiancee to justify the interference with freedom of expression here.6 The majority condemns the plaintiffs for “sanctioning” and “arranging for” the women to accompany the band on its July 4 parade. In doing so, it assimilates the July 4 26th Army Band march to the stink bomb and brick-throwing (and presumably the women’s protest to the anti-Semitic speech of the defendant) in Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed.2d 1131, (1949), the majority here saying “this is precisely the area where a soldier, when wearing his uniform and performing a military assignment with his unit, may be subjected to discipline for contributing to disorder, to which a civilian could not.” The thoughtful findings of Judge Weinstein below justify no Ter-miniello analogy or allusion:
The only instance where significant non-verbal conduct was involved was the off-post demonstration of five women on July 4, 1970. Neither the Article 188 Proceeding nor the trial revealed that they were acting otherwise than on their own behalf. Cf. Kiiskila v. Nichols, 433 F.2d 745 (7th Cir. 1970) (en banc) (right of civilian anti-war proponent to come on to post). Nor was there any evidence that anyone in the Band acknowledged their presence or participated in any way in their activity. Holding men responsible for the activities of wives or sweethearts, without proof of any other connection, is hardly consonant with due process. The only activities the members of the Band participated in, and which were found objectionable by their superiors, were the circulation and signing of the petitions. 325 F.Supp. at 823 (emphasis supplied) .
Contrary to the majority’s findings de novo here, the court below made findings, and I believe we are bound by them, as follows:
As the Band was about to march in a July 4th parade on Staten Island, five women — Cortright’s fiancee and the wives of some other Band members — attempted to join the line of *258march while carrying “peace” signs. Although a scuffle occurred between the women and some spectators, the Band continued to march in formation and play. This incident was reported in a Staten Island newspaper. No signs connected the Band with the demonstration. 325 F.Supp. at 801. * * * Restrictions on speech were not based upon any person’s special access to information. * * * 325 F.Supp. at 823.
Third, the investigating officer uncovered no criticism or disrespect for superiors either civilian or military. *• * *
* * * This was no call to rebellion or riot; it was not a call to civil disobedience of any kind. If these men had not been soldiers, their right to carry on these activities would be unquestioned.
The facts, both as elicited from the record of the Article 138 Proceeding and as developed at the trial, demonstrate that the changes in duty assignments of the Band as a whole were for the purpose of halting the public expressions of disagreement with the Vietnam War of Band members. * -X- *
On the record in the Article 138 Proceeding there was no substantial evidence to support the findings and conclusion reached by the investigating officers and accepted by General Seaman and the Secretary of the Army. On the contrary, the record establishes that the changes in duty assignments of the Band were for the purpose of halting speech. * * * 325 F.Supp. at 824.
Accepting the trial court’s findings referred to above, and the premise that a “service member’s right of expression should be preserved to the maximum extent possible, consistent with good order and discipline and the national security,” 7 it seems to me that the conclusion is inevitable that the courts must intervene to protect the “service member’s right of expression.” What form that intervention should take, however, is an even more difficult question to me than the basic question of whether such intervention should occur. It is not as if the band members were directly disciplined, court martialed or deprived of pay or other benefits.
To what extent, then, may military transfer orders be interfered with by the courts?8 Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed.2d 842 (1953), nearly puts revision of duty orders of one lawfully in the service out of judicial reach; at least it says that the judiciary must be “scrupulous not to interfere with legitimate Army matters. * * *” 345 U.S. at 94, 73 S.Ct. at 540. The legitimate exercise of First Amendment rights is, however, not exclusively an Army matter, as has been pointed out, even though that exercise is by one in the military service. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), is still good law where there has been actual harassment, as found here by the trial court, despite Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Even a very little chill on a very big right is too much.' A transfer to Texas today could be a transfer to Hue tomorrow.9 A transfer can be just as much “punishment” as retention in the Army. See Black, J., dissenting in Orloff, supra at 97, 73 S.Ct. 534.
An almost equally difficult problem here is whether the court below was *259bound by the Article 138 proceeding. In other words, to what extent are the courts bound by military proceedings below? In this respect I agree with the conclusions of the learned trial judge, 325 F.Supp. at 819-820. Here, where the exercise of constitutional rights is involved, I believe the courts may review military findings in substance and effect ; those findings stand no higher than the Alabama state court’s findings of no systematic exclusion of blacks from Alabama jury rolls. Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935). See also Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 (1922). Here is just such an erosion of First Amendment rights as was referred to in Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 822 (2d Cir. 1967). The lack of the usual safeguards of counsel, cross examination and the submission of evidence doesn’t make the Article 138 proceeding record here any more appealing to me as one requiring binding effect than the lack of any administrative record in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), was appealing to the Court there. “Post hoc rationalizations” are not a basis for administrative action’s binding the courts. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962).
The majority would await a “stronger case” to intervene to protect a serviceman’s First Amendment rights. I suspect that there were those who coun-selled waiting for a higher tax to throw the tea into Boston Harbor, or suggested to Andrew Hamilton that he wait for a client with a better case than John Peter Zenger’s to argue for free expression. I would, rather, agree with Coke’s aphorism : “No restraint be it never so little, but is imprisonment, and foreign employment is a kind of honourable banishment.” 4 D.N.B. 693 (Oxford Univ. Press 1921 reprint).
. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (June 30,1971).
. Former Chief Justice Warren has said nothing to the contrary: “When the authority of the military has such a sweeping capacity for affecting the lives of our citizenry, the wisdom of treating the military establishment as an enclave beyond the reach of the civilian courts almost inevitably is drawn into question.” Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 187-188 (1962).
. See Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ; Emerson, The System of Freedom of Expression 569 (1970).
. See Douglas, J., in New York Times Co. v. United States, supra 403 U.S. at 722, 91 S.Ct. 2140, 29 L.Ed.2d 822 (June 30, 1971), and Brennan, J., id. at 726, 91 S.Ct. at 2146.
. This opinion is carefully and constructively criticized in Emerson, supra n. 3, at 567-568.
. “We see no basis for concluding that if Cortright and his like-minded friends had limited themselves to signing peace petitions or engaging in protest marches while on leave, the Army command would have interfered in any way.” “What triggered the difficulties here was the prearranged participation of Cortright’s fiancee and the four wives in the July 4 parade. While these ladies had every right to engage in a protest march of their own and carry such signs as they wished, it does not follow that Band members were entitled to arrange for or to sanction their accompanying the Band when it was performing its mission of leading a Fourth of July parade.”
. DOD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces,” quoted with apparent approval in the majority opinion.
. Here the court denied injunctive relief to the plaintiffs and merely ordered posting of the Army’s own Guidelines on dissent and protest and of a brief summary of the court’s own findings and conclusions and ordered rescission of Specialist Cortright’s transfer to Texas.
. Indeed, five intervenor members of the band were transferred in 1970 to Vietnam and Korea but the trial court found no relation between their transfer and their exercise of freedom of expression. 325 F.Supp. at 806-807.