Brown v. Palmer

JOHN P. MOORE, Circuit Judge,

dissenting, with whom HOLLOWAY, Chief Judge, and MeKAY and SEYMOUR, Circuit Judges, join:

Ignoring Emerson’s caution that a “foolish consistency is the hobgoblin of little minds,” 1 I adhere to my previous dissent. Brown v. Palmer, 915 F.2d 1435, 1445 (10th Cir.1990). Taking the lead of the majority, I will not reiterate what I have said before, but given the course of this matter, I must comment further. Nothing contained in the additional presentations by the parties nor the opinion of the majority dissuades me from my original conviction that the district court properly concluded the open houses conducted in 1985 and 1986 were public forums.

The source of my disagreement, as noted in my previous dissent, is over the way the majority looks at the evidence. I place greater reliance upon what activities the Air Force permitted rather than what activities it prevented. I believe that when one looks at the actions of the Air Force on the days of the open houses one sees clear evidence of its intent to create a public forum. Although the facts in the record are spare, they are sufficient to determine, as did the trial court, the Air Force intended to allow private citizens to distribute literature advertising their private interests. The evidence is also sufficient to establish those private interests were totally foreign to the military mission of the open houses. To me, those facts indicate the Air Force intended to permit the base to be open to public discourse on civilian activity. Furthermore, the only difference between those civilians who were permitted to advertize their private interests and plaintiffs was the Air Force did not believe the material the plaintiffs wanted to distribute was politically neutral.

To me, it is not significant that some might consider the material circulated by those individuals to be bland or uncontroversial. What is significant is those persons were allowed to speak on subjects of their own choice which were entirely foreign to the military mission of the open house. Contrary to the majority, I do not believe the government can create a limited public forum. Once private discourse is encouraged or allowed in a governmental facility, that locus has become a forum for the free exchange of all ideas.

Thus, the issue here is not whether the government can selectively regulate the speech of citizens on a military base, but whether, after creating a public forum on that base, it can exercise the power of censorship. In my view, the majority is trying to have the cart draw the horse. The majority concludes the Air Force did not intend to create a public forum at the open houses because the Air Force can and did lawfully regulate speech on the air base. That analysis decides the public forum issue upon a determination of what speech was disallowed at the open house rather than what speech was permitted. I think the proper method of analysis is to first determine the type of forum provided by the Air Force and then decide whether that forum will permit censorship of speech.

Additionally, the majority narrows the forum issue to whether the Air Force intended to create a forum for “political or ideological debate.” I believe that blurs the focus of this case. If a public forum was created by the actions of the government, by definition it is open to political, ideological, or any other forms of discourse. That fact distinguishes the cases upon which the majority relies.

*741In Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Supreme Court reminds us:

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939). In these quintessential public forums, the government may not prohibit all communicative activity....
A second category consists of public property which the State has opened for use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum....
Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.

460 U.S. at 45-46, 103 S.Ct. at 954-55 (citations omitted).

We may therefore conclude with assurance there are three types of public property within which the government has differing powers of censorship. The first are streets, parks, and other facilities which are intended for public assembly. The government’s right to limit speech in these facilities is confined to narrowly drawn regulations necessary to serve a compelling state interest. Id. at 45, 103 S.Ct. at 954; Flower v. United States, 407 U.S. 197, 198, 92 S.Ct. 1842, 1843, 32 L.Ed.2d 653 (1972) (military cannot prohibit distribution of literature on “completely open street”).

The second are facilities which are not by their nature intended for public assembly but, through governmental action, are opened for that purpose. As the Court noted in Perry, to the extent the government allows those facilities to remain open “it is bound by the same standards as apply in a traditional public forum.” 460 U.S. at 46, 103 S.Ct. at 955.

Finally, there are those facilities which are not opened for public assembly by either tradition or governmental action. In those facilities, the government can reasonably regulate speech. Id. Thus, the dimensions of the government’s rights to control the content of speech are measured by “the nature of the relevant forum.” Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985).

In the cases relied upon by the majority to support its conclusion that the Air Force could deny plaintiffs the right to speak, the Court held the public facility in which speech was governmentally regulated was of the third category: not a public forum. In Perry, the Court concluded the school district mailboxes were not a public forum. 460 U.S. at 46, 103 S.Ct. at 955. In Lehman v. City of Shaker Heights, 418 U.S. 298, 303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974), the Court held advertising placards on public conveyances were not a public forum.2 In Greer v. Spock, 424 U.S. *742828, 838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976), the Court held that merely because a military base was open to visitors it had not become a public forum to permit plaintiffs to make “political speeches or distribute leaflets.”

In United States v. Albertini, 472 U.S. 675, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985), the question was whether the First Amendment would prevent the conviction of a person subject to a bar letter for the crime of unlawfully entering a military base during an open house. The Court did not decide whether the open house was a public forum, but ruled: “Where a bar letter is issued on valid grounds, a person may not claim immunity from its prohibition on entry merely because the military has temporarily opened a military facility to the public.” Id. at 687, 105 S.Ct. at 2905.

In United States v. Kokinda, — U.S. -, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), the issue was whether the post office could prohibit the solicitation of contributions on a sidewalk between the parking lot and the post office building. Engaging in the forum analysis, the Court determined the sidewalk from the postal parking lot was not the same type of public thoroughfare as a sidewalk which parallels a public street. Whereas the latter is a “public passageway,” id. 110 S.Ct. at 3120, the parking lot sidewalk leads only from the lot to the post office front door. Thus, the Court concluded, the post office could regulate the content of speech on that sidewalk, but only because it did not constitute a public forum.

Finally, in a case similar to this, the Eighth Circuit concluded an Air Force open house did not constitute a public forum; therefore political speech could be banned. Persons for Free Speech at SAC v. United States Air Force, 675 F.2d 1010 (8th Cir.1982). I do not find Persons antithetical to my analysis, however. First, if the facts of a case do not indicate an intent on the part of the government to create a public forum on the occasion of a military open house, the government has the right to reasonably regulate the content of the speech at that event. Second, the facts of Persons are immediately distinguishable from the facts of this case.

The open house involved in Persons did not include advertising or pamphleteering by private persons advocating private interests. The only nonmilitary people engaged in any form of speech were defense contractors who were present, much the same as in this case, to explain the “aircraft and weapon system that they were currently supplying to the Air Force.” Id. at 1013-14. None of these contractors were permitted to promote their “consumer products or public relations material regarding their corporations.” Id. at 1014. Here, however, during the 1985 and 1986 open houses, private persons unaffiliated in any way with the Air Force were permitted to distribute material relating to, and talk about, their own private interests. I regard that distinction as highly relevant in the forum analysis.3

Given the legal perspective of the Supreme Court’s treatment of governmentally owned facilities and the government's power to regulate the content of speech within those facilities, there is only one conclusion that can be drawn. The government’s right to reasonably regulate speech is entirely dependent upon whether the facility is open, by design or designation, to public discourse. Here, because on the occasions of the 1985 and 1986 open houses at Peterson Air Force Base the base was turned into a public forum, the bar letters issued to plaintiffs were prohibited by the First Amendment.

*743As a final comment, I must state that I do not believe a holding in accordance with my view would imperil the future of military open houses. While the majority expresses this concern, it can be easily avoided if, in the future, the command at Peterson Air Force Base will refuse to permit any form of private speech at its open houses.

. Ralph Waldo Emerson, Essays: First Series (1841) History.

. The Court also considered the commercial nature of the advertising enterprise as a further reason to allow the government to choose what speech it would permit. “In much the same way as a newspaper or periodical, or even a radio or television station, need not accept ev*742ery proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles." Lehman, 418 U.S. at 303, 94 S.Ct. at 2717.

. Contrary to the position taken by the plaintiffs, I do not regard the defense contractors any differently than the military personnel who were conducting recruiting activities. In the context of their function, those contractors were carrying out the military mission of the Air Force by providing the public information about the weaponry on exhibit.