Greer v. Spock

Mr. Justice Powell,

concurring.

I join the Court’s opinion, and express these additional thoughts.

I

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 *843interest. 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:

“A military organization is not constructed along democratic lines and military activities cannot be governed by democratic procedures. Military insti*844tutions are necessarily far more authoritarian; military decisions cannot be made by vote of the interested participants. . . . [T]he existence of the two systems [military and civilian does not] mean that constitutional safeguards, including the First Amendment, have no application at all within the military sphere. It only means that the rules must be somewhat different.” T. Emerson, The System of Freedom of Expression 57 (1970).

In this context our inquiry is not limited to claims that the exercise of First Amendment rights is disruptive of base activity. We also must consider their functional and symbolic incompatibility with the “specialized society separate from civilian society,” Parker v. Levy, 417 U. S. 733, 743 (1974), that has its home on the base.1

II

1 turn first to Fort Dix’s ban on political activities, such as rallies, within the environs of the base.2 With the *845majority, 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 Garners, 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:

“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.” Post, at 867.

This lesson may have prompted the constitutional requirement that the President be the Commander in Chief of the Armed Forces. U. S. Const., Art. II, § 2. Command of the Armed Forces placed in the political *846head of state, elected by the people, assures civilian control of the military. Few concepts in our history have remained as free from challenge as this one. But complete and effective civilian control could be compromised by participation of the military qua military in the political process. There is also a legitimate public concern with the preservation of the appearance of political neutrality and nonpartisanship. There must be public confidence that civilian control remains unimpaired, and that undue military influence on the political process is not even a remote risk.

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 *847candidate 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 off-base 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.

*848In 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

Ill

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 *849newly inducted serviceman, for he must learn “the subordination of the desires and interests of the individual to the needs of the service.” Orlofi 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.

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 constrast, is a discrete military training enclave in a predominately rural area.

Fort Dix Reg. 210-26 (1968) prohibits “[demonstrations, 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.

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.