Thomas S. Culver v. Secretary of the Air Force

BAZELON, Chief Judge,

dissenting:

The majority upholds appellant’s conviction for participating in a demonstration in a foreign country and for soliciting other military personnel to do the same. There can be no objection to most of my colleagues’ observations about the needs of the military and our responsibilities to nations that host our troops. It is at the point that they apply these generalities to the facts of this case that we part ways. Their response to appellant’s vagueness claim raises troubling questions of fairness and logic, but their rejection of his over breadth claim is even more disturbing because it needlessly shrinks the substantive reách of the first amendment. Finding no evidence in the record that the government’s concededly substantial interests require this particular curtailment of a citizen’s first amendment rights, I dissent.

I. VAGUENESS

“ ‘Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.’ ” Parker v. Levy, 417 U.S. 733, 757, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974). Appellant argues that AFR 35-15’s prohibition on “demonstrations” is too imprecise to give the requisite notice. He notes that the term “demonstration” is not defined in the regulation, it carried no judicial gloss at the time of his acts in 1971, and it is open to numerous interpretations in everyday parlance. For these reasons, appellant would have us hold the regulation violative of due process by analogy to Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1972) (“treats contemptuously the flag of the United States” held vague); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (“conduct . . annoying to persons passing by” held vague); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (“gang” held vague).

Judge Christensen answers appellant’s argument briefly:

There is a kind of gloss to the term ‘demonstration’ as used in the regulation from the context of ‘protest and dissent’ in which it appears, by the treaty obligation, the duties of visiting military personnel and their organizations which are quite separate from such political activity, and by the very meaning with which the word has come to be used. In the latter connection there seems no valid comparison between the word ‘demonstration’ and the other words which as appellant points out have been held to involve, in various contexts, impermissible vagueness, including ‘gang’.

At - of 182 U.S.App.D.C., at 628 of 559 F.2d.

There is indeed a “kind of gloss to the term ‘demonstration’ ” based on its context and everyday usage, but that gloss blurs into vagueness precisely in the area of appellant’s activity. I assume that “demonstration” would not describe individual presentations of petitions to the ambassador, just as I assume that it would describe mass gatherings with all the usual trappings of *634political protests. Appellant’s activity fell somewhere in between these extremes. Although appellant could have speculated that his conduct might be proscribed, the regulation hardly provided him clear notice that his particular style of protest would constitute criminal activity. That the military court and the district court each applied different definitions, and that both of these definitions differ from that later relied on by the Court of Military Appeals in United States v. Alexander, 22 USCMA 485, 47 CMR 786 (1973), confirm that the line dividing illicit demonstrations from similar (but not illicit) activities is fuzzy at best.

Both Judges Christensen and Leventhal refer to a portion of the military judge’s instructions to bolster their conclusion that no unfairness resulted from any ambiguity in the regulation. With no apparent thought about appellant’s vagueness claim, the trial judge instructed the jury as to appellant’s defense of mistake in fact. In order to convict appellant, the military jurors were required to find that he was not laboring under “an honest and reasonable mistake” as to whether his presentation of petitions was a “demonstration” within the meaning of AFR 35-15. Rec. 499.

My colleagues deny any suggestion that this instruction could cure vagueness if it existed, a disclaimer with which I emphatically agree. Vagueness is an objective issue to be judged on the face of the regulation and its authoritative gloss; it cannot be negated by a showing of the defendant’s subjective state of mind.1 If the law were otherwise, trial judges could foreclose a vagueness claim on appeal simply by instructing juries that, to convict, they must find that the defendant did not mistakenly believe that his conduct fell outside the relevant legal proscription. Questions of constitutional law that should be decided by the court would thereby be converted into questions of fact for the jury and be effectively insulated from appellate review. Moreover, a defendant could be convicted for violating a constitutionally defective statute on the ground that he happened to be unaware of its defect.

Given my colleagues’ concession that appellant’s actual knowledge is irrelevant to the issue of vagueness, I am puzzled by their reference to the judge’s instruction. Having concluded that the regulation is not vague, they evidently rely on the jury’s conviction of appellant in the face of that instruction to assure themselves that Culver at any rate knew he was inviting prosecution by his conduct. The unarticulated extension of this conclusion is that he now is raising a purely technical objection by arguing on appeal that the regulation was, by an objective standard, too vague to have given him the notice required by due process.2 Unfortunately, this conclusion about *635the state of Culver’s knowledge is as factually unfounded as it is legally irrelevant.3

II. OVERBREADTH

Appellant’s “overbreadth” claim is perhaps misnamed. He does not contend that AFR 35-15 is unconstitutional because it facially reaches others’ clearly protected activity;4 indeed, in light of the restriction on standing announced in Parker v. Levy, 417 U.S. 733, 758-60, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), he could not do so. Rather, appellant claims that the regulation is unconstitutional as applied to his own protest activities.5

In rejecting this claim, my colleagues seem to argue on two levels — first, that the Constitution permits the Government broadly to prohibit all demonstrations by foreign-based military personnel, regardless of the particular factual setting; and second, that the facts of this case show a compelling justification for proscribing this defendant’s protest. I find no legal basis in the case law for the majority’s first proposition, and no factual basis in the record for their second.

A. The Broad, Flat Ban of AFR 35-15 is Unconstitutional

To my knowledge, no Supreme Court case. has upheld a broad curtailment of first amendment rights comparable to that worked by AFR 35-15. Its ban on demonstrations is absolute; it requires no individual determination that a given protest will affect a substantial government interest. Both of my colleagues’ opinions contain statements sanctioning the flat proscription of AFR 35-15. These warrant close examination.

The appellant argues that AFR 35-15 should be interpreted to ban demonstrations only when they have been found to threaten our relations with a country hosting our *636troops or to endanger some other important government interest, either because of the style of the protest or because of the political issue involved. In response, Judge Christensen states:

The appellant reads altogether too narrowly the interest of the military in complying with the treaty obligation of the United States to avoid intervention in political affairs through its military forces. [] It would be unseemly and possibly disruptive — or at least the military had the right to consider it so — for members of the military to engage in demonstrations in the host country no matter what political interest was being pressed.

At - of 182 U.S.App.D.C., at 628 of 559 F.2d. Similarly, Judge Leventhal states:

In this case the stationing of American troops on foreign soil creates a special need for political neutrality. The presence of our troops in a foreign land inevitably creates a political issue for the host government — whether its military and political alliance with the United States is advantageous. Political demonstrations by American servicemen may have an impact on this issue. Because American troops are both the symbols and instruments of American foreign policy, their actions are more likely to have a significant impact than those of individual visitors like tourists and businessmen. Thus, as our treaty with Great Britain recognized, [] there is need for American troops abroad to refrain from political demonstrations.

At - of 182 U.S.App.D.C., at 631-632 of 559 F.2d (emphasis added).

With my colleagues’ premises, I wholeheartedly agree. It is their conclusions I reject. Judge Christensen fails to explain why the government interest in avoiding “unseemly and possibly disruptive” demonstrations justifies an absolute prohibition “no matter what political interest was being pressed” and, we may assume, no matter how orderly and lawful the protest. Putting aside for the moment whether an absolute ban on all demonstrations is required by treaty,6 I cannot believe that all protests by servicemen abroad will be unseemly and disruptive; if aimed solely at domestic American issues and conducted in accordance with local law, such demonstrations may carry little or no impact locally. Nor can I believe — as Judge Leventhal appears to — that the risk that some demonstrations might harm our foreign relations is so likely to occur or would be so devastating in its consequences if it did occur that it justifies a precautionary ban on all demonstrations without inquiry into individual circumstances.7

Perhaps the real rationale for Judge Christensen’s conclusion lies in the line — “at least the military had the right to consider it so.”8 I read this statement as expressing familiar judicial deference to military judgments. However tempting it may be to *637leave military matters to military authorities, first amendment challenges to military regulations merit the same careful scrutiny accorded civilian regulations. For example, in Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), the Court upheld a ban against on-base campaigning only after thorough analysis revealed that it had satisfied the “heavy burden of justification” that “any significant restriction of First Amendment freedoms carries.” Id. at 843, 96 S.Ct. at 1220. (Powell, J., concurring). It is true that Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), contains extensive discussion of the differences between civilian and military law. But the purpose of that discourse is to explain why more restrictive standing principles for facial overbreadth9 and vagueness 10 should govern challenges to military regulations, and to support a slight loosening of the substantive standard for vagueness claims.11 Parker does not hold that those considerations warrant a generally laxer or more deferential standard of review.12

Judge Leventhal’s opinion suggests yet another reason for upholding the broad prohibition of AFR 35-15:

Politics are always complex and unpredictable; the nuances of foreign politics may be particularly difficult for Americans to understand or predict. The effect of an incident on our relations with a host country may depend on matters of attitude within a foreign government that simply cannot be adduced in a court martial. Individual servicemen cannot demand the right to predict or determine which demonstrations will prove disruptive or embarrassing in our relations with the host country. There is a constitutional justification for a broad ban on off-base demonstrations by our troops abroad.

At---of 182 U.S.App.D.C., at 630-631 of 559 F.2d. Judge Leventhal’s point is substantial, but not, I think, persuasive. Of course, a broad rule without conditions or exceptions is more easily applied than one requiring individualized determinations. It also guarantees that none of the feared harms will ever come to pass. But the first amendment protects higher values than convenience and freedom from risk.13 Even when the Government has *638prohibited speech to prevent subversion or insurrection, the Supreme Court has demanded an individualized inquiry into whether the particular defendant’s acts and words truly threatened the nation’s security.14

Never was there an individualized determination by the military command or military court that appellant’s protest infringed military interests. The ban on demonstrations was a flat one; the notice given appellant by his superiors merely interpreted that ban to apply to his already planned protest. Similarly, the military trial judge ruled that the broad ban of AFR 35-15 was constitutional without himself determining, or requiring the jury to find, the appellant’s protest affected any government interest in any fashion whatsoever.

I see no threat to any national interest in requiring servicemen to secure the permission of their commanders before engaging in public demonstrations abroad, and in requiring those commanders to justify their refusal to give permission with specific rea*639sons. Like many cities’ parade permit ordinances, this scheme would allow for prospective adjudications when disputes arose.15 Similarly, I see no threat to national interests in requiring the Government, in its criminal prosecutions for violations of AFR 35-15 and related regulations, to prove that the defendant’s protest activity in fact affected an important government interest, such as maintaining amicable relations with countries hosting our troops. I do not agree with Judge Leventhal that “matters of attitude within a foreign government . . . simply cannot be adduced in a court martial.” If a foreign government is so displeased by a demonstration that our relations with it are harmed, surely it would be willing to send a spokesman to testify to this effect. Or where that is not feasible, surely our government can offer evidence to substantiate its claim that the demonstration is harmful, if in fact it is.

In showing future risk or past harm to an important government interest, the prosecution’s burden of proof need not be heavy. For example, any demonstration significantly affecting our relations with a host country should be proscribable. Whether that foreign country was reasonably justified in taking offense would not be at issue; the Government would have to prove only that a significant effect on our relations would probably occur or had already occurred because of a particular demonstration.16

It is vital to remember that we are discussing only this country’s restrictions on what its servicemen do while abroad. The first amendment does not keep host countries from proscribing demonstrations by visiting U.S. troops any more than it does by their own citizens. Moreover, if American servicemen violated such local laws they would properly be subject to discipline by U.S. military authorities within the terms of our treaties with that nation. The situation addressed by the present case is quite different, however, for here the local English authorities made no apparent attempt to constrain appellant’s activities apart from traffic and police considerations. Given the power of local government to control public protests and given the power of U.S. military authorities to punish their troops for violations of local law, I see no justification for the broad, absolute prohibition of AFR 35-15 as construed and upheld by the majority. Military authorities doubtlessly need power to proscribe demonstrations even when local law is not violated, but I would require that the exercise of that power be more tightly tied to some substantiated and substantial government interest.

B. Insufficient Justification Has Been Shown for Proscribing Appellant’s Speech

Once it is agreed that AFR 35-15 should be construed to require an individualized showing of detriment to some important government interest, the issue becomes one of mixed fact and law — does the record show that appellant’s words or deeds so harmed a valid military interest as to lose their constitutional protection? The majority seems to answer this question as an alternative ground to its broader holding, *640finding compelling justification for proscribing appellant’s protest on the facts of this case. Again I disagree.

The Government had advanced several military interests said to justify this infringement of appellant’s first amendment rights.17 The district court relied on the first of these — “good order, discipline, and morale.” This admittedly substantial government interest, see Parker v. Levy, 417 U.S. at 758, 94 S.Ct. 2547, was found by this court to justify a military regulation curtailing the time, place and manner that first amendment rights could be exercised in Carlson v. Schlesinger, 167 U.S.App.D.C. 325, 511 F.2d 1327 (1975). However, that case involved the solicitation of signatures for an antiwar petition on a military base in a Vietnam combat zone. Whatever the danger to discipline and morale caused by that act in that setting,18 I cannot see how the much lesser danger presented by appellant’s behavior justifies the even more drastic curtailment of speech .caused by a flat ban on all demonstrations. The conviction here was for activity occurring off base in a country at peace. The Government has offered no explanation for how discipline or morale could have been significantly harmed by the mere presentation of petitions to the ambassador under these circumstances, nor do I see how the Government could do so short of arguing that the military should be empowered to stifle all dissident communications in the interests of maintaining servicemen’s unquestioning adherence to official policies.

My two colleagues rely on the second government interest advanced by appellees —“maintaining amicable relations with foreign countries.” Appellee’s Br. at 35. The prohibition on demonstrations is said to be grounded on more than a diplomatic desire to avoid the appearance of our meddling in other nations’ affairs; it also springs from treaty agreements with countries hosting United States military personnel.19 Article II of the treaty provides:

It is the duty of a force and its civilian component and the members thereof as well as their dependents to respect the *641law of the receiving States and to abstain from any activities inconsistent with the spirit of the present Agreement, and, in particular, from any political activity in the receiving state.

[1951] 4 U.S.T. 1792, T.I.A.S. No. 2846, art. II.

Although the question is one of first impression for which there is no legislative history, I believe that “any political activity” cannot be read literally. Very serious first amendment problems would be raised if the provision were construed to preclude American servicemen from engaging in activity such as voting and political discussions. Once it is conceded that all political activities are not banned by the treaty, how should the provision be construed? Its context in the treaty, as well as common sense, dictates that it should be interpreted consistently with the purpose of avoiding interference with local politics and offense to local governments. The applicability of AFR 35-15 — if we assume this regulation’s purpose is to enforce the treaty — would thus turn on questions of fact particular to each case — would or did this demonstration interfere with local politics or offend local government?

In appellant’s case, the majority answers this question briefly:

The Vietnam question, especially with respect to participation in the war, was highly political, no matter where discussed, and even the emotional impact of that political question as it involved the United States was not any the less political because it was dealt with and exploited in a friendly foreign country.

At - of 182 U.S.App.D.C., at. 628 of 559 F.2d. Judge Christensen relies on speculation and generalities. He cannot point to evidence in the record demonstrating that appellant’s protest embarrassed or offended the English because the record is devoid of such evidence. In fact, the scant testimony on this point all is to the effect that few British citizens noticed the protest at all, and of those who did, none disapproved. The Constitution surely requires more solid basis than this for prosecuting an American serviceman for publicly declaring his opposition to his government’s participation in an unpopular war.20

III. CONCLUSION

The essence of my disagreement with my colleagues is simple. Recognizing that demonstrations by servicemen stationed abroad may cause substantial problems for the government, they have decided to give military authorities broad license to ban all demonstrations.21 Mindful of the risks involved, I agree that the speech rights of soldiers must give way when substantial government interests would otherwise be harmed. What I cannot accept — and do not *642believe that the Constitution permits — is the sweeping proscription of AFR 35-15, applicable to all public protests alike regardless of their actual or probable impact. The values shielded by the first amendment are not immune to trade-offs with competing governmental interests, but where a trade-off is required, I would give up as little of the first amendment as possible, and resolve all doubts in favor of free speech. The majority, I believe, not only resolves its doubts in favor of other values, but also gives up far more of the first amendment than any government interest requires.

. In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), the defendant had been convicted under 18 U.S.C. § 20 for depriving a prisoner of a right protected by the Constitution, the right not to be deprived of life without due process of law. On appeal, the defendant argued that the statute was unconstitutionally vague because its incorporation of due process, a broad and changing concept, provided no ascertainable standard of guilt. To save the statute, the Court construed it to require “a specific intent to deprive a person of a federal right made definite by decision or other rule of law." 325 U.S. at 103, 65 S.Ct. at 1036. “The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.” Id. at 106, 65 S.Ct. at 1037. The Court added: “Of course, willful conduct cannot make definite that which is undefined. But willful violators of constitutional requirements, which have been defined, certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment. When they act willfully in the sense in which we see the word, they act in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite. When they are convicted for so acting, they are not punished for violating an unknowable something.” Id. at 105, 65 S.Ct. at 1037. (emphasis added).

. Judge Leventhal states: “While the instruction did not dispose of all constitutional issues, it removed any taint of unfairness to appellant as an individual.” At - of 182 U.S.App.D.C., at 631 of 559 F.2d.

. The prosecution refuted appellant’s mistake of fact defense by putting into evidence a statement (Prosecution exhibit 13) prepared by appellant’s immediate superior, Major Franklin P. Flatten, Staff Judge Advocate, 48th Combat Support Group. This document stated in part: "Unofficial publications have recently offered opinions as to the legality of certain protest and dissent activities. Those opinions are incorrect . . All personnel are advised that paragraph 3e(3) of AFR 35-15, Dissent and Protest Activities, specifically prohibits participation by military personnel in any demonstration in a foreign country. The prohibition applies whether the serviceman or servicewoman is on or off base, in or out of uniform, on or off duty. It also applies in full force irrespective of what term or name is given to the demonstration.” The timing of this document indicates that it was directed specifically at appellant’s planned presentation; I assume that appellant must have so interpreted it.

This statement was presented to appellant on May 26, i. e., after he had committed the acts of May 24 underlying Charge I. Thus, it came too late to give appellant notice, hardly apparent from a facial reading of AFR 35-35, that his distribution of leaflets constituted soliciting other Air Force personnel to violate a lawful regulation.

As for Charge II, the statement would have put appellant on notice that AFR 35-15 prohibited his planned presentation on May 31 only if (1) interpretations of regulations by the source that issued this statement carried the force of law, and (2) the statement on its face issued from this source. The first question was not argued at trial or in the briefs to this court. The second question was raised at trial (while the jury was out) but was left unresolved. Rec. 473-75.

In accordance with the trial judge’s instructions, the jury also could have surmised that appellant knew that his activities would constitute a “demonstration” banned by AFR 35-15 because of his “age, education, experience and background” — i. e., because he was a lawyer. I fail to see how appellant’s legal training proves that he knew “demonstration” encompassed his presentation of petitions. If I had been in appellant’s shoes, I too might have concluded that the military could not constitutionally have proscribed, and therefore would not have intended its regulation to reach, this kind of activity.

Hence, there was little evidence to support the implicit finding that appellant must have known his conduct was proscribed by AFR 35-15.

. See G. Gunther, Cases and Materials on Constitutional Law 1132-42 (1975).

. We may assume, for purposes of discussing this claim, that appellant’s presentation of petitions fell squarely within AFR 35-15’s proscription. Thus, the issue is not whether the regulation was properly applied to his protest, but whether the regulation as applied to it was constitutional.

. See infra at---of 182 U.S.App.D.C., at 640-641 of 559 F.2d. Even assuming that AFR 35-15 is mandated by the Status of Forces treaty, the Constitution is superior law, though I am mindful that a clear treaty obligation would weigh heavily in any first amendment balance.

. Compare Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), in which the Supreme Court upheld a military regulation ordering the exclusion from the West Coast of those residents of Japanese ancestry. Stating that “[njothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify [this sort of discriminatory deprivation],” id. at 218, 65 S.Ct. at 195, the Court upheld the order only because it “could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal,” id. at 219, 65 S.Ct. at 195. In other words, the Court sacrificed the principle of individualized determinations and sustained a broad deprivation of fundamental constitutional rights because it found the gravity of the danger so great, the likelihood of the harm so substantial, and the availability of alternatives nonexistent. Even so, the majority opinion evoked stinging dissents and has continued to be criticized to this day.

. Judge Christensen also states: “The military had wide latitude in defining and implementing the military interest and necessity in these respects.” At-of 182 U.S.App.D.C., at 628 of 559 F.2d.

. See 417 U.S. at 758-60, 94 S.Ct. 2547.

. See id. at 756, 94 S.Ct. 2547.

. See id. at 756-57, 94 S.Ct. 2547.

. Arguably, there is a distinction to be drawn between challenges to military regulations brought initially in federal court requiring normal review (e. g., Greer v. Spock, supra) and challenges made by way of. collateral attack on military court convictions requiring more limited, deferential review (e. g., Parker v. Levy, supra, and Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975)). This distinction would rest on “the deference that should be accorded the judgments of the carefully designed military justice system established by Congress.” Schlesinger v. Councilman, 420 U.S. at 753, 95 S.Ct. at 1310, see also id. at 758, 95 S.Ct. 1300. The degree of deference that should be paid to a military court’s judgment, however, must logically turn on the extent to which the “military decision has dealt fully and fairly with an allegation raised” in that system of courts. Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 1049, 97 L.Ed. 1508 (1953). In the present case, only the military trial judge passed on appellant’s constitutional claims. See Judge Leventhal’s statement, at---of 182 U.S.App.D.C., at 632 of 559 F.2d. Thus, there is no basis here for anything less than the searching review normally accorded first amendment challenges.

. In a case contesting whether school officials could prevent students from wearing armbands as an antiwar protest, the Court found that the mere risk of disturbance did not justify this prohibition of expression. “[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” The Court held that the prohibition of this form of expression, “at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.” Tinker v. Des Moines School District, 393 U.S. 503, 508, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969).

Similarly, in the prosecution of a defendant for wearing a jacket displaying the words “Fuck the Draft,” the state court had upheld the offensive conduct statute and conviction on the ground that “such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt *638to forceably remove his jacket.” The Supreme Court replied:

The rationale of the California court is plainly untenable. At most it reflects an ‘undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression.’ . . . We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression.

Cohen v. California, 403 U.S. 15, 17, 23, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971).

. A long line of Supreme Court cases dealing with subversive speech has established this principle. Beginning with Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919), the Court held that “[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Id. at 52, 39 S.Ct. at 249.

Subsequently, the Court was presented with statutes in' which the legislature had itself weighed the danger, concluding that “to knowingly be or become a member of or assist in organizing an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism involves such danger to the public peace and the security of the State, that these acts should be penalized. . . ” Whitney v. California, 274 U.S. 357, 371, 47 S.Ct. 641, 647, 71 L.Ed. 1095 (1927), overruled by Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).

Initially, the Court deferred to the legislature’s judgment that mere membership in these organizations so endangered the state as to stand outside the first amendment. No inquiry was made whether the individual defendant’s own acts and speech threatened the government. In response, Justice Brandéis attacked the Court’s failure to examine for itself the question of clear and present danger as raised by the facts of the case before it:

Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature. The legislative declaration, like the fact that the statute was passed and was sustained by the highest court of the State, creates merely a rebuttable presumption that these conditions have been satisfied.

Id. at 378-79, 47 S.Ct. at 649 (concurring).

Justice Brandéis’ position eventually prevailed. In the Smith Act prosecutions of the early 1960’s, the Court construed the membership clause of the Act to require “clear proof that a defendant ‘specifically intend[s] to accomplish [the subversive aims of the organization] by resort to, violence” and that he have the “specific intent ‘to bring about the overthrow of the government as speedily as circumstances would permit.’ ” Scales v. United States, 367 U.S. 203, 229-30, 81 S.Ct. 1469, 1486, 6 L.Ed.2d 782 (1961). In other words, Justice Harlan suggested that it is not enough that Congress finds the Communist Party so threatening to the national security that mere knowing membership can be constitutionally punished. The crime must also include the element of individual intent to bring about those evils that justify controls on the Party itself. Thus, to avoid constitutional conflict, the Court required an individualized determination that an important government interest— there, prevention of incitement to unlawful conduct — was threatened by that defendant’s words or deeds.

. See G. Gunther, Cases and Materials on Constitutional Law, 1175-76, 1204-06 (1975). See also Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) (prior restraints on films); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957) (prior restraints on books).

. Lesser governmental interests than maintenance of amicable relations with host countries may require a stronger showing of probability or harmful effect before speech may be proscribed. Cf. Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), quoting United States v. Dennis, 2 Cir., 183 F.2d 201, 212 (Hand, Ch. J.): “ ‘In each case [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’ ” Although this flexible standard has been undercut in subversive speech cases by Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), it remains useful in cases where the regulation is less content-oriented, and therefore requires less searching review than mandated by the stringent “clear and present danger” test of Brandenburg.

. In United States v. Alexander, 22 USCMA 485, 47 CMR 786 (1973), the Court of Military Appeals described the purpose of Army Regulation 60020, which proscribes foreign demonstrations in language identical to AFR 35-15: “the regulation’s purpose was to establish military neutrality in connection with causes ‘for which the demonstration is conducted.’ ” The court equated this purpose with the traditional American aversion to “a man on a white horse” and intrusion of the military into the political arena.

This justification is inconsistent with those put forward by the Government in the present case. It should also be noted that the Supreme Court has explicitly stated that the Alexander justification cannot support curtailing public speech by off-duty, nonuniformed servicemen while off base in the United States. See Greer v. Spock, 424 U.S. 828, 839 (Stewart, J.); 847, 96 S.Ct. 1211, 1222, 47 L.Ed.2d 505 (Powell, J., concurring) (“Nor could there be any prohibition on handing out leaflets and holding campaign rallies outside the limits of the base.”). If the government’s interest in keeping the military out of United States politics will not support a ban on all demonstrations by servicemen stationed in the United States, that same interest can hardly support a flat ban abroad.

. The court in Carlson (from which I dissent-, ed) did not specify how the collection of signatures on petitions endangered discipline and morale, except to suggest that other servicemen might have objected violently to the views expressed in the petitions. The court’s standard was unquestioningly deferential: “Because judges are ill-equipped to second guess command decisions made under the difficult circumstances of maintaining morale and discipline in a combat zone, ... we should not upset such determinations unless the military’s infringement upon first amendment rights is manifestly unrelated to legitimate military interests.” 511 F.2d at 1333 (emphasis added). This very lax standard of review is disturbing enough in a combat situation. Cf. Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (even during a military emergency, racial classifications must be subjected “to the most rigid scrutiny”). I do not believe that the Constitution allows the extension of such a deferential standard of review to less exigent settings.

. At trial, the Prosecution stated: “The Government does not contend that AFR 35-15 was written with a view toward enforcing Article II [of the North Atlantic Treaty Organization, Status of Forces Agreement]; we submit, however, that it does provide a method for the Department of Defense to enforce within its system of justice, violation of that Article of that NATO/SOFA Agreement.” Rec. 19.

. Cf. Cohen v. California, 403 U.S. 15, 23, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (Court notes lack of evidence to support State court’s speculative justification for offensive conduct statute and conviction); Stanley v. Georgia, 394 U.S. 557, 567, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (speculative connection between exposure to obscenity and deviant sexual behavior cannot justify prohibition of possession of obscene materials); Tinker v. Des Moines School District, 393 U.S. 503, 508-09, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (Court notes lack of evidence to support lower court’s speculations about risk of disorder arising from students’ wearing of armbands); Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961) (Evidentiary requirements for Smith Act prosecutions).

. I trust that my colleagues would take a dimmer view of a prosecution under AFR 35-15 if it were shown that the military failed to ban all “demonstrations,” but instead discriminated among them on the basis of their message. See Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972) (“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”). While the “equal protection” aspect of the first amendment is indisputably crucial as a bulwark against censorship, an equally vital facet of free speech is that of effective access to an audience. See G. Gunther, Cases and Materials on Constitutional Law 1142-1259 (1975); Note, The Public Forum: Minimum Access, Equal Access, and the First Amendment, 28 Stan.L.Rev. 117 (1975). From the denial of such access inevitably flow the frustration, alienation, apathy, helplessness, and violence of the voiceless and unheard.