Persons for Free Speech at Sac, Anne Else v. United States Air Force, Col. John R. McKone Maj. Gary Trout, in Their Official Capacities

HEANEY, Circuit Judge,

dissenting, with whom

LAY, Chief Judge, and McMILLIAN, Circuit Judge, join.

We agree with the majority that the annual open house at OAFB falls within the traditional sphere of military activities and serves legitimate military purposes.1 Indeed, the right of the Air Force to hold this event has never been in dispute. The Air Force, however, permits defense contractors and other nonmilitary groups to assemble booths and distribute literature at the open house. Having done so, the issue is whether it can then prohibit the appellants from distributing, in the same manner,2 literature which is critical of current defense policies.

We cannot accept such selective exclusion for two important reasons. First, the regulation on which the Air Force relied to deny appellants access to the open house was not applied in a content-neutral manner. Civilian groups engaged in ideological and commercial activity were permitted to participate in the open house to their benefit, while appellants were denied the same opportunity — a discrimination that violates Air Force Regulation (AFR) 190-5 and the First Amendment. Second, and apart from any regulation, the Air Force conducted the open house in a manner which created a public forum, such that it was constitutionally impermissible to deny the appellants the right to distribute literature at the one-day forum. In addition, regardless of whether a public forum was created, the ban on appellants’ literature distribution was inconsistent with the “clear danger” standard which the Supreme Court has applied to literature restrictions on military bases. The applicability of the “clear danger” standard, however, is an open question which we need not reach because, in our view, the Air Force’s actions are plainly unconstitutional on the two foregoing grounds.

A.

AFR 190-5(3)(d) WAS NOT APPLIED IN A CONTENT NEUTRAL MANNER.

AFR 190-5(3)(d) prohibits the Air Force from using its open house to “directly or indirectly endorse or selectively benefit or favor or appear to endorse or selectively benefit or favor any private individual, group, corporation (whether for profit or nonprofit) * * * or ideological movement * * * or commercial venture * * The Air Force violated this regulation by permitting defense contractors to participate in and benefit from the open house — in both commercial and ideological capacities — while denying the appellants the same opportunity. This selective exclusion of the *1024appellants is a facial violation of the Air Force regulation.3

Moreover, the violation is of a constitutional dimension. Even assuming the open house was not a temporary public forum, any governmental regulation of speech nonetheless must be reasonable and content neutral. United States Postal Service v. Greenburgh Civic Association, 453 U.S. 114, 130-131 & n.7, 101 S.Ct. 2676, 2686 & n.7, 69 L.Ed.2d 517, 531-532 & n.7 (1981). Here, AFR 190-5 was not applied in a content-neutral manner. Defense contractors, a vital link in the defense establishment, were permitted to participate in the open house. The appellants, opponents of current defense policies, were denied the same opportunity. Such discrimination on the basis of the content of speech is unconstitutional. The “government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” Police Department of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972).

The majority does not explicitly address the question of whether the open house selectively benefited the defense contractors in their commercial capacity. It dismisses the commercial aspect by noting that defense contractors provided only “blandly informative displays” of products currently supplied to the Air Force and that the contractors were not permitted to directly promote their consumer goods. This ignores the clear commercial benefit of participating in the open house.

The defense contractors — Boeing, General Electric and McDonnell Douglas — are commercial ventures that supply sophisticated weaponry and equipment to the Air Force. Their presence at the OAFB open house accords them an excellent opportunity to engage in “institutional advertising.”4 Such advertising is aimed at military and civilian officials who participate in defense procurement, as well as everyday consumers who may purchase other products sold by the contractors. In using the open house to foster the image of being competent producers of high technology products, the defense contractors promote themselves to both their military and nonmilitary customers. These commercial benefits may not strike the majority as significant, but they were sufficiently valuable to attract the commercial contractors in the first instance.

The majority also asserts that the defense contractors were not engaged in ideological speech:

To characterize the defense contractors’ displays as “ideological” is to ignore the fact that they were only showing the “current state” of the Air Force. The contractors were not at the open house to debate the current or future state of the military but rather to show the current state.

Id. at 1022.

We cannot accept this view. The defense contractors have a vital interest in promoting public support for defense policies which emphasize high technology products and weapon systems. Moreover, public confidence in the weapon products is crucial to sustaining the policies which lead to such products. In promoting their current products to the general public at the open house, the contractors are unmistakably promoting public support for the defense policies on which those products depend. The linkage between the defense industry and military policymaking was forcefully warned of by President Eisenhower in his farewell address two decades ago:

*1025Until the latest of our world conflicts, the United States had no armaments industry. American makers of plowshares could, with time and as required, make swords as well. But now we can no longer risk emergency improvisation of national defense; we have been compelled to create a permanent armaments industry of vast proportions. Added to this, three and a half million men and women are directly engaged in the defense establishment. We annually spend on military security more than the net income of all United States Corporations.
This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence — economic, political, even spiritual — is felt in every city, every State house, every office of ' the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.
In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.
We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.

Public Papers of the President, 1960-1961, at 1038 (emphasis added).

President Eisenhower’s warning foreshadowed the present case. The Air Force sponsors an event that attracts hundreds of thousands from the general public; the defense industry is permitted to join and promote its wares to the public, but those who oppose such products and the policies they rest upon are excluded from the event. Stifling one side of the debate is offensive to the First Amendment, yet the majority approves of such action by concluding that only one side of this debate is ideological. In our view, both the defense industry and its critics bear ideological messages. The Air Force cannot invite the public to the open house and then permit only one side of the national security debate to advance its position.

B.

THE OPEN HOUSE CONSTITUTES A PUBLIC FORUM.

Quite apart from any question of compliance with regulations, the Air Force’s exclusion of appellants is impermissible under the public forum doctrine. In our view, the Air Force created a temporary public forum at OAFB by conducting the open house in the manner which it did. The Air Force holds its open house at OAFB annually and extends an invitation to the public. The event is attended by well over 100,000 persons each year. Aerial demonstrations, equipment and weaponry displays, and military bands and drill teams are presented for the visitors. Recruiters for the various branches of the armed services are present at the open house. Defense contractors, local public service organizations and public safety groups are permitted to participate and assemble booths to disseminate literature. Refreshment concession stands and other public services are provided on the base. The Air Force diverts equipment and personnel from regular training to instead prepare for the open house. The Air Force’s express purpose in staging the open house is “to show the community the relationship between national objectives and the missions of various OAFB organizations.”

These factors demonstrate the magnitude of the open house, the large scale of public involvement and the significant participation of nonmilitary groups. From any commonsense perspective, the open house is *1026plainly a public forum.5 The primary legal requirement for finding a public forum is also met. In public forum analysis, “the crucial question is whether the [proposed] manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972) (emphasis added). Accord, United States Postal Service v. Greenburgh Civic Association, supra, 453 U.S. at 129-130 n.6 & 134, 101 S.Ct. at 2685 n.6 & 2687, 69 L.Ed.2d at 530-531 n.6 & 534-536 (Brennan, J., concurring); Note, The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 155-156 & nn. 28-34 (1976). Here, the appellants’ proposed literature booth is clearly compatible with the other activities at OAFB during the open house.6

Because the open house constituted a public forum, the government must have compelling reasons to restrict appellant’s speech. See Grayned v. City of Rockford, supra, 408 U.S. at 116-117, 92 S.Ct. at 2303; Tinker v. Des Moines Independent School District, 393 U.S. 503, 506-509, 89 S.Ct. 733, 736-737, 21 L.Ed.2d 731 (1969); United States v. O’Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672 (1968); Note, The Supreme Court, 1975 Term, supra, 90 Harv.L.Rev. at 152-154 & nn. 1, 29-34. Neither the majority herein, the district court nor the Air Force claim that there is a compelling governmental interest that justifies prohibiting appellants’ speech.

The majority, relying on Greer v. Spock, 424 U.S. 828, 838 n.10, 96 S.Ct. 1211, 1217 n.10, 47 L.Ed.2d 505 (1976), asserts that the open house is not a public forum because it “is within the range of traditional military activities.” We agree that the open house has now become a tradition. We agree that a primary purpose of the open house is to further current defense policies and, thus, it can be described as a legitimate military activity. The fact that the open house is a traditional military activity, however, does not answer the question of whether it is a public forum. The proper inquiry is not whether the government’s use of property is traditional or legitimate but, rather, whether the appellants’ proposed use is incompatible with the activities at OAFB during the open house.7 Greer does not suggest otherwise.

*1027In Greer, the Supreme Court upheld Army regulations which were relied upon to deny political candidates permission to hold a political meeting on a public parking lot at Fort Dix. The Court concluded that the base was not a public forum for the candidates’ partisan political speeches because such speeches were fundamentally incompatible with the military’s traditional and historical role of training soldiers and remaining politically neutral.8 Id. at 838, 96 S.Ct. at 1217. See Note, The Supreme Court, 1975 Term, supra, 90 Harv.L.Rev. at 156.

Thus, Greer does not create a per se rule that a military base cannot be a public forum under any circumstances. It did hold that, for purposes of partisan speeches on a military base, the public forum doctrine would be construed very narrowly. The Court’s analysis, however, was consistent with prior cases that had decided the public forum question by considering all relevant circumstances, including the compatibility of the proposed speech with the government’s use of its property. This compatibility analysis was reaffirmed, subsequent to Greer, in United States Postal Service v. Greenburgh Civic Association, supra, 453 U.S. at 114, 101 S.Ct. at 2676, 69 L.Ed.2d at 517. In that case, the majority, concurring and dissenting opinions all analyzed the public forum question by determining whether the proposed First Amendment exercise was incompatible with the government’s use of the public property at the time in controversy. Id. 453 U.S. at 129, 130 n.6, 101 S.Ct. at 2685 n.6, 69 L.Ed.2d at 530-531 n.6 (majority opinion); 453 U.S. at 134-136, 101 S.Ct. at 2687-2688, 69 L. Ed.2d at 534-536 (Brennan, J., concurring); 453 U.S. at 142-143, 101 S.Ct. at 2691-2692, 69 L.Ed.2d at 543-544 (Marshall, J., dissenting).

Moreover, nothing in Greer suggests that the appellants’ proposed speech at OAFB is incompatible with the military’s activities at the open house. In Greer, unlike the present case, the plaintiffs sought to speak to soldiers engaged in routine training rather than to the general public at an open house. Indeed, under Greer and by any meaningful standard, the appellants’ proposed speech activity is plainly compatible with the open house activities as a whole. See note 6, supra.

The majority also argues that the open house was not a public forum merely because an ideological message was projected by the Air Force. They reason that the Air Force’s message, though ideological, reflects an “ideology which is developed and controlled under our Constitution by civilians.” Supra, at 1017, 1022. Implicit in this reasoning is an admission that the Air Force might well create a public forum if it was projecting its own “military message” rather than a civilian message.

We fail to grasp the logic of the distinction. In either case, it is government speech that is being projected and the impact on the question of whether a public forum is created should be the same. The majority cites to no case in which the validity of military restrictions on speech has turned on the notion that such restrictions were civilian directed. If the government chooses a military base as a forum to *1028project an ideological message to the public and in the process creates a public forum, it must expect that those who do not agree with the message will seek to project their own message from the same forum.

C.

APPELLANTS’ LITERATURE DISTRIBUTION POSES NO DANGER TO MILITARY LOYALTY, MORALE OR DISCIPLINE.

Regardless of whether the- open house was a public forum, the Air Force ban on appellants’ literature distribution is inconsistent with the “clear danger” standard which the Supreme Court has applied to literature restrictions on military bases. In Greer v. Spock, supra, 424 U.S. at 838-840, 96 S.Ct. at 1217-1218, the Supreme Court upheld an Army regulation which required prior approval by a base commander before literature could be distributed on-base. In so holding, the Court “emphasized that [the regulation] does not authorize the Fort Dix authorities to prohibit the distribution of conventional political campaign literature.” Id. at 840, 96 S.Ct. at 1218. Indeed, the Greer Court underscored that under the express terms of the regulation, literature could be ultimately prohibited only when found to pose a “clear danger to military loyalty, discipline or morale. ” Id. (Emphasis added.)

The Court thus distinguished literature distribution from partisan political speeches or rallies, holding that the latter could be uniformly banned from a military base. Although the majority ignores this distinction, the Supreme Court reaffirmed it in Brown v. Glines, 444 U.S. 348, 353 n.8, 100 S.Ct. 594, 599 n.8, 62 L.Ed.2d 540 (1979):9

We specifically emphasized that the Army regulation at issue in Greer v. Spock did “not authorize the [base] authorities to prohibit the distribution of conventional political campaign literature.” Thus, our decision to sustain that regulation was distinct from our concomitant decision to uphold another regulation that prevented civilians from using a military base as a forum for the expression of political views. [Citations omitted.]

Read together, Greer and Brown clearly establish that military restrictions on literature distribution are subject to a different constitutional standard than restrictions on speeches, rallies and the like. The precise standard for reviewing literature restrictions, however, is less clear. In both Greer and Brown, the Supreme Court repeatedly emphasized that the regulations upheld in those cases would allow the military to prohibit literature only when it posed a “clear danger” to morale, discipline or loyalty. See Greer v. Spock, supra, 424 U.S. at 838-840, 96 S.Ct. at 1217, 1218; Brown v. Glines, supra, 444 U.S. at 353, 100 S.Ct. at 599. Such strong emphasis may be read as constitutionalizing the “clear danger” standard.

To the extent the “clear danger” standard is a constitutional one, the Air Force plainly has not complied with it. Here, the appellants met with the Air Force prior to the 0[>en house and, in requesting permission for a literature booth, described the nature of the literature they intended to distribute. The appellants also expressed their willingness to abide by reasonable time, place and manner restrictions.10 The Air Force never sought to examine the literature and has never contended that it would pose a danger of any kind to loyalty, discipline or morale. Nor did the district court, after reviewing the actual literature, find any such danger. The Air Force simply banned the appellants’ literature distribution while ¡jermitting other nonmilitary groups to participate and distribute litera*1029ture.11 The selective exclusion of appellants’ literature cannot be justified as being necessary to protect military loyalty, discipline or morale.

We recognize, however, that the “clear danger” standard in Greer and Brown was an express element of the regulations at issue in those cases and that, in upholding the regulations, the Court did not state that the standard applied broadly as a constitutional limit on military literature restrictions. The scope and applicability of the “clear danger” standard is thus an open question. We need not and do not reach this question because, in our view, the Air Force’s actions are unconstitutional on the two grounds previously discussed.

SUMMARY.

We believe that if the Air Force is going to conduct the open house at OAFB in the manner which it has, it must permit the appellants to participate on the same basis as other nonmilitary groups. We emphasize ■that we do not contend there is any general right to enter OAFB for the purpose of distributing literature. Nor do we reach the question of whether the appellants could be constitutionally excluded if all nonmilitary groups were excluded from the open house.

The Air Force, however, chose to hold an open house that would attract hundreds of thousands of civilians and chose to permit defense contractors and other nonmilitary groups to participate and distribute leaflets on the base to the general public. By thereafter excluding the appellants from the open house, the Air Force violates its own regulation. Moreover, it violates the First Amendment by applying that regulation in a manner which is not content neutral, and by denying appellants access to a public forum without a compelling justification. Finally, the selective exclusion of appellants’ literature cannot be justified as being necessary to protect military discipline, loyalty or morale.12

The majority, nonetheless, approves of these actions simply because the open house is traditional, serves legitimate purposes and promotes a “civilian ideology.” Such a rationale has unsettling implications for the First Amendment. We cannot agree that the First Amendment affords so little protection to free expression by citizens on the property of their government.

. We also agree with the majority insofar as It holds that the Air Force cannot constitutionally regulate the speech content of clothing worn at the open house or issue “ban and bar” letters to those who attended Mass at the chapel.

. The appellants have repeatedly expressed to the Air Force their willingness to submit to reasonable time, place and manner restrictions on the same basis as the other nonmilitary groups. The appellants also described to the base commander the nature of their literature (prior to the open house) and introduced at trial specific examples of the literature that would be distributed. Neither the base commander nor the district court have contended or found that distribution of such. literature would pose a danger to military loyalty, discipline or morale.

. We note that the Air Force also violated its regulation by selectively permitting the chamber of commerce and other local nonmilitary groups to participate in and benefit from the open house. Although the participation of such groups is not highly significant, it further underscores the discriminatory character of the Air Force’s restriction of appellants’ First Amendment rights.

. “Institutional advertising promotes organizational images, ideas, and political issues.” W. Pride & O. Ferrell, Marketing — Basic Concepts and Decisions, at 345 (1977). See also Stanton, Fundamentals of Marketing, at 414 (1981) (“Institutional advertising is designed to create a proper attitude toward the seller and to build goodwill, rather than to sell a specific product or service.”).

. We note that a military base does not become a public forum simply because the public is freely admitted to the base. See Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976). We only conclude that under all the facts and circumstances of this case, the appellants can claim access to OAFB as a public forum for the one day of the open house. We need not reach the question of whether the open house would constitute a public forum if all nonmilitary groups were excluded from the event.

. Appellants’ speech — if subject to the same restrictions applied to other nonmilitary groups — would not interfere with the civilian visitors. Nor would appellants’ literature booths interfere with the aerial demonstrations, equipment and weaponry displays, or military bands and drill teams. Moreover, appellants’ activities would not disrupt the leafletting by various military and nonmilitary groups. Finally, the appellants, like the Air Force and the participating defense contractors, seek to address the ideological issues concerning OAFB’s relationship to local and national objectives and concerns. The appellants, of course, do not share the Air Force’s view of how to best protect our national security; but appellants’ speech cannot be considered incompatible with the open house merely because its content conflicts with the Air Force’s message. If such an interpretation of incompatibility was adopted, no governmental property would ever be considered a public forum because any proposed speech that the government did not approve of would be incompatible with the government’s use of the property.

. The Supreme Court has made it clear that the compatibility question in public forum analysis focuses on the relationship between the speech that is being restricted and the government’s use of the public property at the time of the proposed speech. See United States Postal Service v. Greenburgh Civic Association, 453 U.S. 114, 129-130 n.6 & 134-136, 101 S.Ct. 2676, 2685 n.6 & 2687-2688, 69 L.Ed.2d 517, 530-531 n.6 & 534-536 (Brennan, J., concurring) (1981); Greer v. Spock, supra, 424 U.S. at 837-838 & 843-844, 96 S.Ct. at 1217 & 1220 (Powell, J., concurring); Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). See also Note, The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 155-156 & nn. 28-34 (1976).

. The majority ignores this compatibility analysis in Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). It misreads footnote 10 in Greer which states:

The fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not of itself serve to convert Fort Dix into a public forum or to confer upon political candidates a First or Fifth Amendment right to conduct their campaigns there. The decision of the military authorities that a civilian lecture on drug abuse, a religious service by a visiting preacher at the base chapel, or a rock musical concert would be supportive of the military mission of Fort Dix surely did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever.

424 U.S. at 838 n.10, 96 S.Ct. at 1217 n.10. In footnote 10 in Greer, the Court was merely noting that prior permission for compatible civilian speakers did not mean that incompatible civilian speech activity must be permitted. This compatibility analysis, of course, did not focus on whether the military approved of the content of the speech, but rather on whether the nature of the activity was incompatible with the functioning of the military base. See note 6, supra.

. In Brown v. Glines, 444 U.S. 348, 355, 100 S.Ct. 594, 600, 62 L.Ed.2d 540 (1979), the Court upheld an Air Force prior approval requirement, again emphasizing that, under the regulation, literature could be prohibited only if found to pose a “clear danger” to morale, loyalty or discipline.

. Appellants have not disputed the Air Force’s right to impose reasonable time, place and manner restrictions on the speech of nonmilitary groups at the open house. Nor do we.

. The appellants have never contended that they have a right to distribute their literature at OAFB when it is regularly closed to the public. We need not speculate as to whether a constitutional “clear danger” standard for literature restrictions might apply to such closed military installations.

. Because of the Air Force’s differential treatment of appellants compared to other nonmilitary groups, each of these First Amendment and regulatory violations also constitutes a denial of equal protection. See Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 133-136, 97 S.Ct. 2532, 2541-2543, 53 L.Ed.2d 629 (1977).