United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2008 Decided July 15, 2008
No. 07-5121
LARRY W. BRYANT,
APPELLANT
v.
ROBERT M. GATES, SECRETARY OF DEFENSE, UNITED STATES
DEPARTMENT OF DEFENSE, ET AL.,
APPELLEES
Consolidated with 07-5180
Appeals from the United States District Court
for the District of Columbia
(No. 05cv00064)
Jonathan L. Katz argued the cause and filed the briefs for
appellant.
R. Craig Lawrence, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Jane M. Lyons, Assistant U.S.
Attorney.
Before: GINSBURG, BROWN, and KAVANAUGH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge GINSBURG.
Concurring opinion filed by Circuit Judge KAVANAUGH.
GINSBURG, Circuit Judge: Larry Bryant claims the
refusal of the Department of Defense to allow his
advertisements to be published in its Civilian Enterprise
Newspapers violated his rights under the First Amendment to
the Constitution of the United States. The district court
entered summary judgment for the Government on all
Bryant’s claims. We affirm the judgment.
I. Background
Bryant is a would-be contributor to the Civilian
Enterprise Newspapers (CENs), which are “published by
commercial publishers under contract” with the Department
of Defense Components or their subordinate commands
(hereinafter DoD) and distributed on military installations.
The DoD’s sole purpose in authorizing the CENs is “to
facilitate accomplishment of the command or installation
mission.” Department of Defense Instruction (DODI) 5120.4
§§ 6.2.1.1.8, E2.1.2.1 (1997), available at
*
http://www.dtic.mil/whs/directives/corres/pdf/512004p.pdf.
Like an ordinary newspaper in many respects, a CEN
contain[s] most, if not all, of the following elements to
communicate with the intended DoD readership:
command, Military Department, and DoD news and
features; commanders’ comments; letters to the editor;
editorials; commentaries; features; sports; entertainment
*
A “command” is a “unit or units, an organization, or an area
under the command of one individual,” DODI 5120.4 § E2.1.9.1,
and an “installation” is a “DoD facility or ship that serves as the
base for one or more commands,” id. § E2.1.9.3.
3
items; morale, welfare, and recreation news and
announcements; ... and installation and local community
news and announcements.
Id. § E2.1.2. This content may come from within the DoD or
from the publisher with the DoD’s approval. Id. § E2.1.2.1.
The publisher may also sell and publish advertising in a CEN,
again subject to the approval of the DoD. Id. §§ 4.11, 4.16,
6.2.1.1.5, E2.1.1, E2.1.2.1, E4.1.7.1-4.
A former civilian editor in the Office of the Chief of
Army Public Affairs, Bryant has, over the last twenty or so
years, submitted to dozens of CENs numerous letters and
advertisements, few of which have been published. See, e.g.,
Bryant v. Sec’y of the Army, 862 F. Supp. 574, 576-77
(D.D.C. 1994). This suit arises out of Bryant’s having
submitted seven self-styled “whistleblower solicitation
advertisements” to two dozen CENs. The general import of
most of those advertisements can be gleaned from their titles:
• Blow the Whistle on Iraqnam’s Battle-of-Baghdad
Cover-up!
• Blow the Whistle on ALL Atrocities at Abu Ghraib!
• Join the Revolt Against the ‘Feres Doctrine’!*
• Blow the Whistle on the Military’s Psychiatric
Retaliation Against Whistleblowers!
*
The “Feres Doctrine” refers to Feres v. United States, in
which the Supreme Court “conclude[d] that the Government is not
liable under the Federal Tort Claims Act for injuries to servicemen
where the injuries arise out of or are in the course of activity
incident to service.” 340 U.S. 135, 146 (1950).
4
• Resist the Government’s Drafty Spin!
• Blow the Whistle on Bush’s ‘Gulf of Persia’
Resolution!
• Blow the Whistle on the Army-CIA McCarthy Saga!*
All the military public affairs officers responsible for the
various CENs to which Bryant submitted these
advertisements declined to publish them, invoking § 4.11 of
DODI 5120.4, which provides:
DoD publications [including CENs] shall not contain
campaign news, partisan discussions, cartoons, editorials,
or commentaries dealing with political campaigns,
candidates, issues, or which advocate lobbying elected
officials on specific issues. DoD CE publications shall
not carry paid political advertisements for a candidate,
party, which advocate a particular position on a political
issue, or which advocate lobbying elected officials on a
specific issue. This includes those advertisements
advocating a position on any proposed DoD policy or
policy under review.
Bryant claims § 4.11 “is unconstitutional on its face and as
applied to [his] paid Advertisements, by violating his rights to
free expression and to freedom of the press” under the First
Amendment.
*
The “Army-CIA McCarthy Saga” evidently involves a
captain named John J. McCarthy Jr. who, Bryant says, “found
himself involuntarily transferred to clandestine duty with a CIA-run
operation” toward the end of the Vietnam War to become “an
expendable pawn in rogue activity that, to this day, eludes even
congressional oversight.”
5
The Government moved to dismiss or for summary
judgment, and Bryant cross-moved for summary judgment.
The district court granted the Government’s motion for
summary judgment and denied Bryant’s cross-motion.
II. Analysis
On appeal, Bryant contends § 4.11 of DODI 5120.4
violates the First Amendment because it is vague and is not
narrowly tailored to meet a compelling governmental interest.
“[R]eview[ing] the district court’s grant of summary
judgment de novo, viewing the evidence in the light most
favorable to [Bryant,] and drawing all reasonable inferences
accordingly,” we affirm the judgment because “no reasonable
jury could find in [Bryant’s] favor.” Salazar v. Wash. Metro.
Area Transit Auth., 401 F.3d 504, 507 (D.C. Cir. 2005).*
A. Vagueness
Bryant claims § 4.11 is impermissibly vague on its face
and as applied to his advertisements because it does not
“clearly prohibit[] ‘political’ advertising.” A regulation of
speech must be clear enough to “give the person of ordinary
intelligence a reasonable opportunity to know what is
prohibited,” Grayned v. City of Rockford, 408 U.S. 104, 108
(1972), and to avoid “foster[ing] arbitrary and discriminatory
application,” Buckley v. Valeo, 424 U.S. 1, 41 n.48 (1976)
(quotation marks omitted). Our concern about vagueness is
elevated when the law regulates speech because it may
“operate to inhibit protected expression by inducing citizens
to steer far wider of the unlawful zone than if the boundaries
of the forbidden areas were clearly marked.” Id. (quotation
*
Bryant raises similar constitutional challenges to other
sections of DODI 5120.4, but they are sufficiently lacking in merit
as not to warrant consideration in a published opinion.
6
marks and alterations omitted). On the other hand, because
§ 4.11 does not threaten Bryant (or anyone else) with a
sanction for prohibited speech, and therefore does not seem
likely to deter anyone from engaging in any protected speech,
it is not clear whether the vagueness doctrine applies here at
all. Cf. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569,
621 (1998) (“The terms of the provision are undeniably
opaque, and if they appeared in a criminal statute or
regulatory scheme, they could raise substantial vagueness
concerns. It is unlikely, however, that speakers will be
compelled to steer too far clear of any ‘forbidden area’ in the
context of [Federal arts] grants.”). We need not decide that
question, however, because § 4.11 is not unconstitutionally
vague.
Bryant objects specifically to the use of the term
“political” in § 4.11. He explains: “The very essence of the
CENs is governmental, and thus political, [and] the military
itself, as a major government institution, is political.”
Therefore, Bryant suggests, when the DoD invokes § 4.11 to
exclude advertisements such as his, it must be applying a
standard that is unstated or undefined and may discriminate
upon the basis of the view expressed. We agree with the
Government, however, that far from being vague, the bar in
§ 4.11 is “well-defined.” Even if we assume Bryant is correct
in claiming that everything CENs publish is “political” in the
sense that its publication serves the DoD’s purpose of mission
support, the context in which that term appears in § 4.11
makes clear that it relates specifically to elections and policy
matters of concern to public officials: § 4.11 refers to
“campaigns,” “candidates,” “parties,” “lobbying [of] elected
officials,” “political issues,” and “DoD policy.” DODI
5120.4 § 4.11; see Am. Commc’ns Ass’n v. Douds, 339 U.S.
382, 412 (1950) (in assessing whether term is vague, the
“particular context is all important”).
7
Further to his argument, Bryant suggests the DoD has not
applied the regulation in a consistent manner. In this vein, he
points to three instances in which he claims CENs published
“politically-related” material notwithstanding § 4.11,
specifically: (1) an advertisement inviting service members to
an event at which former Senator Dole would be signing
copies of his memoir, One Soldier’s Story; (2) an
advertisement recruiting service members to work as FBI
agents; and (3) an article entitled “Facing the Future: Terror
War Promotes Transformation Concepts.” It is easy to see,
however, that Bryant’s proposed advertisements are within
the scope of the prohibition in § 4.11 whereas the Dole and
FBI advertisements and the “Facing the Future” article are
not; of these four, only Bryant’s advertisements are
“political” as that term is used in § 4.11. Bryant’s
advertisements addressed controversial, high-level matters of
concern to the President, the Department of Defense, or the
Congress, such as the operation of the Abu Ghraib prison in
Iraq, military conscription, and impeachment of the President
for allegedly lying about why the United States invaded Iraq.
In contrast, there is no reason to believe Senator Dole’s book
signing was a political event; his memoir, published nearly a
decade after he had left public office, focused upon his
service during World War II and his recovery from the
injuries he suffered in the war. The FBI advertisement
solicited people working in one area of Government to work
in another, related area; and the article entitled “Facing the
Future” reported on how “challenges in the field of combat
give [the DoD] the opportunity to test new concepts, new
organizational concepts, new training concepts and new
logistical concepts that help drive transformation to the
future.”
In sum, the ban in § 4.11 on “political” advertisements is
not unconstitutionally vague on its face or as applied to
Bryant’s ads. See McConnell v. FEC, 540 U.S. 93, 241
8
(2003) (phrase “political matter of national importance” not
unconstitutionally vague).*
B. The Justification for and Tailoring of § 4.11
Bryant next claims § 4.11, “as written and applied” to his
advertisements, is not narrowly tailored to serve a compelling
governmental interest.** As a general principle, “the extent to
which the Government can control access [to a forum it owns
or controls] depends on the nature of the relevant forum.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 800 (1985). More specifically:
Restrictions on speech in a public forum must be
necessary to achieve a compelling state interest and
narrowly tailored to that end. Restrictions on speech in a
nonpublic forum, on the other hand, are subject to a
much less stringent test: they must only be reasonable [in
light of the purpose of the forum] and not an effort to
*
Bryant also claims § 4.11 is unconstitutional on its face and
as applied because it is “subject to be[ing] applied with unbridled
discretion,” but this argument is the same as his argument that the
regulation is vague (no doubt in part because the two doctrines
overlap), and so it fails for the same reason his vagueness argument
fails: Considered in full, § 4.11 adequately constrains the DoD’s
power. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151
(1969).
**
Bryant separately claims § 4.11 is unconstitutionally
overbroad. See United States v. Williams, 128 S. Ct. 1830, 1838
(2008) (“statute is facially invalid if it prohibits a substantial
amount of protected speech ..., not only in an absolute sense, but
also relative to the statute’s plainly legitimate sweep”). We do not
address that claim separately because it is analytically identical to
Bryant’s claim that § 4.11 is on its face not narrowly tailored. See
Bd. of Trs. v. Fox, 492 U.S. 469, 482-84 (1989).
9
suppress expression merely because public officials
oppose the speaker’s view.
Stewart v. D.C. Armory Bd., 863 F.2d 1013, 1016 (D.C. Cir.
1988) (quotation marks and citation omitted); Ark. Educ.
Television Comm’n v. Forbes, 523 U.S. 666, 677-79 (1998).
A forum is public if it “historically has been devoted to
the free exchange of views; streets and parks are
quintessential examples.” Stewart, 863 F.2d at 1016; see also
Ark. Educ. Television Comm’n, 523 U.S. at 677. Even if a
forum was not traditionally open, the government may
designate it a public forum by making it “generally available”
“for expressive use by the general public or by a particular
class of speakers”; for example, “a state university created a
public forum for registered student groups by implementing a
policy that expressly made its meeting facilities ‘generally
open’ to such groups.” Id. at 678-79 (quotation marks
omitted); see also Lamb’s Chapel v. Ctr. Moriches Union
Free Sch. Dist., 508 U.S. 384, 392 (1993) (government
creates public forum when it designates forum “for
indiscriminate public use for communicative purposes”). If,
however, the government permits only “selective access for
individual speakers,” then it creates a nonpublic forum, Ark.
Educ. Television Comm’n, 523 U.S. at 679-80; for example,
the Combined Federal Campaign charity drive was deemed a
nonpublic public forum because the Government had
“limit[ed] participation in the [Campaign] to ‘appropriate’
voluntary agencies [i.e., not including ‘legal defense and
political advocacy organizations,’] and ... require[d] agencies
seeking admission to obtain permission from federal and local
Campaign officials,” Cornelius, 473 U.S. at 790, 804.
We must identify the relevant forum before we can
classify it. Because Bryant seeks access only to the
advertising section of each CEN, we treat the advertising
10
section – not the whole CEN, which the Government suggests
– as the relevant forum. Id. at 801 (“In cases in which limited
access is sought,” we “take[] a more tailored approach to
ascertaining the perimeters of a forum”); see Lehman v. City
of Shaker Heights, 418 U.S. 298, 300-04 (1974) (plurality)
(advertising spaces on city buses, where plaintiff wanted to
run political ads, were relevant fora); Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 46-47 (1983)
(where plaintiff wanted to distribute mail to school teachers,
school’s internal mail system was relevant forum).
Bryant contends the advertising section of a CEN is a
public forum by designation or a “limited public forum,” the
regulation of which, he claims, must survive strict scrutiny.
The Government says it is a nonpublic forum. Because the
Government does not attempt to defend § 4.11 against strict
scrutiny, and it is not obvious § 4.11 would survive such
scrutiny, the question whether the advertising section of a
CEN is a public or a nonpublic forum is potentially
dispositive.
The “touchstone” for determining whether the
Government has designated a forum public is its “intent in
establishing and maintaining” that forum. Stewart, 863 F.2d
at 1016. As the Supreme Court has made clear, “[t]he
government does not create a designated public forum by
inaction or by permitting limited discourse, but only by
intentionally opening a nontraditional public forum for public
discourse.” Ark. Educ. Television Comm’n, 523 U.S. at 677
(quotation marks and brackets omitted). To ascertain the
Government’s intent, we look not only at the Government’s
“stated purpose” but also at “objective indicia of intent,” such
as “the nature of the property, its compatibility with
expressive activity, and the consistent policy and practice of
the government.” Stewart, 863 F.2d at 1016-17; see also Ark.
Educ. Television Comm’n, 523 U.S. at 677.
11
We conclude the advertising section of a CEN is a
nonpublic forum.* This follows from the fundamental fact
that CENs are intended solely to “facilitate accomplishment
of the command or installation mission.” DODI 5120.4
§ 6.2.1.1.8. To that end, a CEN functions as a “conduit” for
the flow of information between commanders and service
members in order “to improve internal cooperation[,] mission
performance[, and] morale,” and to provide “assistance” to
service members and their families. Id. § 6.2.1.1.1-3.
Nothing in DODI 5120.4 suggests the advertising section has
any purpose other than to further these mission-oriented aims.
On the contrary, DODI 5120.4 provides the DoD may prevent
the distribution of a CEN if it contains an advertisement that
is “contrary to ... DoD or Military Service regulations,
including [DODI 5120.4], or that may pose a danger or
detriment to DoD personnel or their family members, or that
interfere[s] with the command or installation missions,” or
“present[s] a danger to loyalty, discipline, or morale of
personnel.” Id. § E4.1.7.1-4; see also United States v.
Albertini, 472 U.S. 675, 684-86 (1985) (“A military base ... is
ordinarily not a public forum for First Amendment purposes
even if it is open to the public”); Shopco Distrib. Co., Inc. v.
Commanding Gen., 885 F.2d 167, 172 & n.6 (4th Cir. 1989)
(collecting decisions holding “military bases fall into the non-
public forum category”).
*
The Government contends the decision in Bryant v. Secretary
of the Army collaterally estops Bryant from denying that a CEN is a
nonpublic forum. In response, Bryant says that decision addressed
only whether the letters-to-the-editor feature of a CEN is a public
forum, which is not at issue here. See United States v. Stauffer
Chem. Co., 464 U.S. 165, 170-71 (1984) (“the doctrine of collateral
estoppel can apply to preclude relitigation of both issues of law and
issues of fact if those issues were conclusively determined in a
prior action”). We do not decide whether Bryant is so precluded
because we think it clear the relevant forum here is nonpublic.
12
Bryant argues that the DoD has in practice “opened” the
advertising sections by running “political” ads. He likens this
case to Stewart, in which we held the display of “large
banners” and the distribution of “political literature” “clearly
suggest[ed] that [RFK Stadium] ha[d] a practice – if not a
policy – of allowing various types of first amendment activity
to take place.” 863 F.2d at 1019; see also Lebron v. Wash.
Metro. Area Transit Auth., 749 F.2d 893, 896 & n.6 (D.C.
Cir. 1984) (WMATA “converted its subway stations into
public fora by accepting ... political advertising”).
The Government responds that Bryant has “failed to
produce a single advertisement in any CEN that is political,
partisan, or even vaguely comparable to his rejected
material.” Just so. Bryant offers up as “political” only the
Dole and the FBI ads, neither of which has any political
content or otherwise indicates the Government intended to
open the forum for general expressive use. These two
advertisements are, therefore, insufficient to show the DoD
has anything approaching a “consistent policy and practice,”
Stewart, 863 F.2d at 1017 (emphasis omitted), of permitting
expressive advertisements in general, political advertisements
in particular, or any advertisements like Bryant’s; indeed, its
policy and practice have consistently been to exclude such
advertisements. See Lehman, 418 U.S. at 300-01, 304
(plurality) (city did not designate advertising spaces on buses
public fora when it permitted various types of advertisements
but did not permit “any political or public issue advertising”);
Greer v. Spock, 424 U.S. 828, 831, 838-39 & n.10 (1976)
(Army did not “convert Fort Dix into a public forum [by
hosting] a civilian lecture on drug abuse, a religious service
by a visiting preacher ... or a rock musical concert” but no
“[s]peeches and demonstrations of a partisan political
nature”); see also Shopco, 885 F.2d at 172-73 (Marine Corps
did not designate Camp Lejeune’s residential area a public
13
forum by permitting delivery of pizza, laundry, and a civilian
publication).
In sum, there is no evidence that, as the Government puts
it, the DoD intended to establish or maintain the advertising
section of a CEN “with the goal of fostering communication
or assembly by the public.” The advertising section is,
therefore, a nonpublic forum. Consequently, the restriction
upon speech in § 4.11 need only be reasonable in light of the
purpose of the forum and viewpoint-neutral. It is clearly
both.
The Government argues, and we agree, § 4.11 is
reasonable on its face and as applied to Bryant’s ads. The
restrictions in § 4.11 upon the content of advertising are
reasonably designed to ensure that advertising furthers (or at
least does not hinder) the mission of a military command or
installation, which is obviously a legitimate goal. See
Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (“The
military need not encourage debate or tolerate protest to the
extent that such tolerance is required of the civilian state by
the First Amendment; to accomplish its mission the military
must foster instinctive obedience, unity, commitment, and
esprit de corps”). The “political” content barred by § 4.11 –
discussion of campaigns, candidates, parties, issues, and DoD
policies – may disrupt the mission by undermining the
camaraderie of service members, their clear understanding of
and commitment to their mission, or even “the American
constitutional tradition of a politically neutral military
establishment under civilian control.” Greer, 424 U.S. at 839.
Bryant’s advertisements posed just such a danger. The
exclusion in § 4.11 of political advertising, and of Bryant’s
advertisements in particular, is therefore reasonable. See id.
at 831 & n.2, 839-40 (upholding regulations barring
“[d]emonstrations, ... political speeches and similar activities”
on military base and authorizing commander to exclude
14
“publication [that] presents a clear danger to the loyalty,
discipline, or morale of troops at [the] installation”); cf.
Lehman, 418 U.S. at 299-300, 304 (plurality) (transit system’s
ban on “political advertising” held reasonable because
political advertisements could subject riders to “blare of
political propaganda” and create “lurking doubts about
favoritism”).
Bryant asserts § 4.11, “as written and applied to [his
advertisements], discriminate[s] against [his] viewpoint.”
Insofar as Bryant makes a claim of facial viewpoint
discrimination, his claim is patently unfounded because, as
the Government points out, § 4.11 by its terms does “not
distinguish between political viewpoints.” Insofar as Bryant
makes a claim of as-applied viewpoint discrimination, his
claim is doubly forfeit: He never raised the claim in the
district court, and in his opening brief on appeal he offered
only the single, conclusory statement just quoted. SEC v.
Loving Spirit Found., Inc., 392 F.3d 486, 491 (D.C. Cir.
2004); N.Y. Rehab. Care Mgmt., LLC v. NLRB, 506 F.3d
1070, 1076 (D.C. Cir. 2007) (“It is not enough merely to
mention a possible argument in the most skeletal way, leaving
the court to do counsel’s work”) (quotation marks omitted).
III. Conclusion
In sum, § 4.11 of DODI 5120.4 does not violate Bryant’s
First Amendment rights. The regulation is clear, not vague.
It is also reasonable in light of the purpose of the advertising
section of a CEN and viewpoint-neutral, which, because the
advertising section is a nonpublic forum, is all the First
Amendment requires. The judgment of the district court is
therefore
Affirmed.
KAVANAUGH, Circuit Judge, concurring: In defending
this suit, the Government has accepted that the military
newspapers’ advertising space is a “non-public forum” for
First Amendment purposes, meaning that the military may not
engage in viewpoint discrimination in accepting
advertisements. The Government contends that the military
has not engaged in impermissible viewpoint discrimination,
and the Court agrees. In light of the way the Government
argued the case, I join the Court’s fine opinion. Lest this
precedent be misinterpreted, however, I write separately to
point out that, as Judge Kollar-Kotelly suggested in footnote 5
of her thorough district court opinion, there is a far easier way
to analyze this kind of case under the Supreme Court’s
precedents. See Bryant v. Rumsfeld, No. 04-cv-1125, slip op.
at 12 n.5 (D.D.C. Mar. 12, 2007).
These military-run newspapers and the advertising space
in them are not forums for First Amendment purposes but
instead are the Government’s own speech. See Arkansas
Educ. Television Comm’n v. Forbes, 523 U.S. 666, 672-75
(1998); see also Johanns v. Livestock Mktg. Ass’n, 544 U.S.
550, 553, 559-60 (2005); United States v. Am. Library Ass’n,
Inc., 539 U.S. 194, 203-05 (2003) (plurality opinion); Legal
Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001); Bd. of
Regents of Univ. of Wisconsin Sys. v. Southworth, 529 U.S.
217, 234-35 (2000); Nat’l Endowment for the Arts v. Finley,
524 U.S. 569, 587-88 (1998); Rosenberger v. Rector &
Visitors of Univ. of Virginia, 515 U.S. 819, 833 (1995); Rust
v. Sullivan, 500 U.S. 173, 196 (1991). As the case law makes
clear, “government speech” can include not only the words of
government officials but also “compilation of the speech of
third parties” by government entities such as libraries,
broadcasters, newspapers, museums, schools, and the like.
People for the Ethical Treatment of Animals, Inc. v. Gittens,
414 F.3d 23, 28 (D.C. Cir. 2005) (internal quotation marks
2
omitted). For example, “[w]hen a public broadcaster
exercises editorial discretion in the selection and presentation
of its programming, it engages in speech activity.” Arkansas
Educ. Television Comm’n, 523 U.S. at 674.
When government speech is involved, forum analysis
does not apply and the Government may favor or espouse a
particular viewpoint. As we have said: “The government
may produce films and publications. It may run museums,
libraries, television and radio stations, primary and secondary
schools, and universities. In all such activities, the
government engages in the type of viewpoint discrimination
that would be unconstitutional if it were acting as a regulator
of private speech.” Gittens, 414 F.3d at 29. The Supreme
Court made the same point in the context of public
broadcasters: “Much like a university selecting a
commencement speaker, a public institution selecting
speakers for a lecture series, or a public school prescribing its
curriculum, a broadcaster by its nature will facilitate the
expression of some viewpoints instead of others. Were the
judiciary to require, and so to define and approve, pre-
established criteria for access, it would risk implicating the
courts in judgments that should be left to the exercise of
journalistic discretion.” Arkansas Educ. Television Comm’n,
523 U.S. at 674. The rule established by these cases is that
the Government “has largely unlimited power to control what
is said in its official organs (newspapers, radio broadcasts, and
the like) or in organs that it officially endorses, even if this
control is exercised in a viewpoint-based way.” EUGENE
VOLOKH, THE FIRST AMENDMENT AND RELATED STATUTES:
PROBLEMS, CASES AND POLICY ARGUMENTS 410 (3d ed.
2008).
Those principles readily resolve this case. The military
newspapers constitute government speech, and the military
3
therefore may exercise viewpoint-based editorial control in
running them. The military may, for example, permit
advertisements that say “Support the Troops” but decline
advertisements that say “Oppose the Troops.” If forum
analysis applied, however, the military could not maintain that
kind of sensible editorial policy.
The conclusion that forum analysis does not apply here
has special force because this case involves military
newspapers. The United States Military maintains these
newspapers “to facilitate accomplishment of the command or
installation mission.” Department of Defense Instruction
5120.4, ¶ 6.2.1.1.8 (June 16, 1997). As the Supreme Court
has stated, the military is “not a deliberative body. It is the
executive arm. Its law is that of obedience. . . . Speech that is
protected in the civil population may nonetheless undermine
the effectiveness of response to command.” Parker v. Levy,
417 U.S. 733, 744, 759 (1974) (internal quotation marks
omitted). Therefore, “review of military regulations
challenged on First Amendment grounds is far more
deferential than constitutional review of similar laws or
regulations designed for civilian society. The military need
not encourage debate or tolerate protest to the extent that such
tolerance is required of the civilian state by the First
Amendment; to accomplish its mission the military must
foster instinctive obedience, unity, commitment, and esprit de
corps.” Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
In light of these precedents, the plaintiff’s suggestion that the
Judiciary micro-manage advertising selection by military
newspapers not only is unsupported by First Amendment
doctrine, but also would interfere with the military’s pursuit of
its critical mission and involve the courts in military decisions
and assessments of morale, discipline, and unit cohesion that
the Supreme Court has indicated are well beyond the
competence of judges.
4
With that understanding, I join the Court’s opinion, which
correctly resolves the case as it was argued to us.