Brown v. Glines

444 U.S. 348, 100 S. Ct. 594, 62 L. Ed. 2d 540, 1980 U.S. LEXIS 68

• Court: Supreme Court of the United States
• Decided: January 21, 1980
• Docket: 78-1006
• Status: Published

Opinions

Mr. Justice Powell

delivered the opinion of the Court.

This case involves challenges to United States Air Force regulations that require members of the service to obtain approval from their commanders before circulating petitions on Air Force bases. The first question is whether the regulations violate the First Amendment. The second question is whether prohibiting the unauthorized circulation of petitions to Members of Congress violates 10 U. S. C. § 1034, which proscribes unwarranted restrictions on a serviceman’s right to communicate with a Member of Congress.

I

The Air Force regulations recognize that Air Force personnel have the right to petition Members of Congress and other public officials. Air Force Reg. 30-1 (9) (1971). The regulations, however, prohibit “any person within an Air Force facility” and “any '[Air Force] member ... in uniform or . . . in a foreign country” from soliciting signatures on a petition without first obtaining authorization from the appropriate commander. IbidJ They also provide that “[n]o member of the Air Force will distribute or post any printed or written material . . . within any Air Force installation without permission of the commander. . . Air Force Reg. 35-15 (3) (a)(1) (1970). The commander can deny permission only if he determines that distribution of the material would result in "a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission. . . .” Id., 35-15 (3) (a) (2).²

Albert Glines was a captain in the Air Force Reserves. While on active duty at the Travis Air Force Base in California, he drafted petitions to several Members of Congress and to the Secretary of Defense complaining about the Air Force’s grooming standards.³ Aware that he needed command approval in order to solicit signatures within a base, Glines at first circulated the petitions outside his base. During a routine training flight through the Anderson Air Force Base in Guam, however, Glines gave the petitions to an Air Force sergeant without seeking approval from the base commander. The sergeant gathered eight signatures before military authorities halted the unauthorized distribution. Glines’ commander promptly removed him from active duty, determined that he had failed to meet the professional standards expected of an officer, and reassigned him to the standby reserves. Glines then brought suit in the United States District Court for the Northern District of California claiming that the Air Force regulations requiring prior approval for the circulation of petitions violated the First Amendment and 10 U. S. C. § 1034.⁴ The court granted Glines’ motion for summary judgment and declared the regulations facially invalid. Glines v. Wade, 401 F. Supp. 127 (1975).⁵

The Court of Appeals for the Ninth Circuit affirmed the finding of facial invalidity. Glines v. Wade, 586 F. 2d 675 (1978).⁶ Following its decision in an earlier case involving collective petitions to Members of Congress, the court first determined that the regulations violated 10 U. S. C. § 1034.⁷ The statute prohibits any person from restricting a serviceman's communication with Congress “unless the communication is unlawful or violates a regulation necessary to the security of the United States.” The Air Force regulations against unauthorized petitioning on any base did not satisfy the statutory standard, the court concluded, because the Government had not shown that such restraints on servicemen in Guam were necessary to the national security. 586 F. 2d, at 679. Since § 1034 did not cover Glines’ petition to the Secretary of Defense, the court next considered whether the regulations violated the First Amendment. The court acknowledged that requirements of military discipline could justify otherwise impermissible restrictions on speech. It held, however, that the Air Force regulations are unconstitutionally overbroad because they might allow commanders to suppress “virtually all controversial written material.” 586 F. 2d, at 681. Such restrictions the court concluded, “exceed anything essential to the government’s interests.” Ibid. We granted certiorari, 440 U. S. 957 (1979), and we now reverse.

II

In Greer v. Spock, 424 U. S. 828, 840 (1976), Mr. Justice Stewart wrote for the Court that “nothing in the Constitution . . . disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command.” In that case, civilians who wished to distribute political literature on a military base challenged an Army regulation substantially identical to the Air Force regulations now at issue. See id., at 831, and n. 2. The civilians claimed that the Army regulation was an unconstitutional prior restraint on speech, invalid on its face. We disagreed. We recognized that a base commander may prevent the circulation of material that he determines to be a clear threat to the readiness of his troops. See id., at 837-839. We therefore sustained the Army regulation. Id., at 840.⁸ For the same reasons, we now uphold the Air Force regulations.⁹

These regulations, like the Army regulation in Spock, protect a substantial Government interest unrelated to the suppression of free expression. See Procunier v. Martinez, 416 U. S. 396, 413 (1974). The military is, “by necessity, a specialized society separate from civilian society.” Parker v. Levy, 417 U. S. 733, 743 (1974). Military personnel must be ready to perform their duty whenever the occasion arises. Ibid. To ensure that they always are capable of performing their mission promptly and reliably, the military services “must insist upon a respect for duty and a .discipline without counterpart in civilian life.” Schlesinger v. Councilman, 420 U. S. 738, 757 (1975); see Department of Air Force v. Rose, 425 U. S. 352, 367-368 (1976).

“ ‘Speech that is protected in the civil population may . . . undermine the effectiveness of response to command.’ ” Parker v. Levy, supra, at 759, quoting United States v. Priest, 21 U. S. C. M. A. 564, 570, 45 C. M. R. 338, 344 (1972). Thus, while members of the military services are entitled to the protections of the First Amendment, “the different character of the military community and of the military mission requires a different application of those protections.” Parker v. Levy, 417 U. S., at 758. The rights of military men must yield somewhat “ ‘to meet certain overriding demands of discipline and duty. . . .’ ” Id., at 744, quoting Burns v. Wilson, 346 U. S. 137, 140 (1953) (plurality opinion).¹⁰ Speech likely to interfere with these vital prerequisites for military effectiveness therefore can be excluded from a military base. Spock, 424 U. S., at 840; id., at 841 (Burger, C. J., concurring); id., at 848 (Powell, J., concurring).

Like the Army regulation that we upheld in Spock, the Air Force regulations restrict speech no more than is reasonably necessary to protect the substantial governmental interest. See Procunier v. Martinez, supra. Both the Army and the Air Force regulations implement the policy set forth in Department of Defense (DOD) Directive 1325.6 (1969).¹¹ That directive advises commanders to preserve servicemen’s “right of expression ... to the maximum extent possible, consistent with good order and discipline and the national security.” Id., ¶11. Thus, the regulations in both services prevent commanders from interfering with the circulation of any materials other than those posing a clear danger to military loyalty, discipline, or morale. Air Force Reg. 35-15 (3) (a) (2) (1970); Army Reg. 210-10, ¶ 5-5 (c) (1970); see DOD Dir. 1325.6, ¶ III (A) (1) (1969). Indeed, the Air Force regulations specifically prevent commanders from halting the distribution of materials that merely criticize the Government or its policies. Air Force Reg. 35-15 (3) (a) (4) (1970); see DOD Dir. 1325.6, ¶III (A)(3) (1969). Under the regulations, Air Force commanders have no authority whatever to prohibit the distribution of magazines and newspapers through regular outlets such as the post exchange newsstands. Air Force Reg. 35-15 (3) (a)(1) (1970); see DOD Dir. 1325.6, ¶III (A)(1) (1969).¹² Nor may they interfere with the “[distribution of publications and other materials through the United States mail. ...” Air Force Reg. 35-15 (3) (a)(1) (1970). The Air Force regulations also require any commander who prevents the circulation of materials within his base to notify his superiors of that decision. Air Force Reg. 35-15 (3) (a) (2) (1970); see Army Reg. 210-10, ¶ 5-5 (d) (1970). Spock held that such limited restrictions on speech within a military base do not violate the First Amendment. 424 U. S., at 840; id., at 848 (Powell, J., concurring).

Spock also established that a regulation requiring members of the military services to secure command approval before circulating written materials within a military base is not invalid on its face. Id., at 840.¹³ Without the opportunity to review materials before they are dispersed throughout his base, a military commander could not avert possible disruptions among his troops. Since a commander is charged with maintaining morale, discipline, and readiness, he must have authority over the distribution of materials that could affect adversely these essential attributes of an effective military force.¹⁴ “[T]he accuracy and effect of a superior’s command depends critically upon the specific and customary reliability of [his] subordinates, just as the instinctive obedience of subordinates depends upon the unquestioned specific and customary reliability of the superior.” Department of Air Force v. Rose, 425 U. S., at 368. Because the right to command and the duty to obey ordinarily must go unquestioned, this Court long ago recognized that the military must possess substantial discretion over its internal discipline. See, e. g., Schlesinger v. Councilman, 420 U. S. 738 (1975); Parker v. Levy, 417 U. S. 733 (1974); Burns v. Wilson, 346 U. S. 137 (1953); Orloff v. Willoughby, 345 U. S. 83 (1953); In re Orimley, 137 U. S. 147 (1890). In Spock, we found no facial constitutional infirmity in regulations that allow a commander to determine before distribution whether particular materials pose a clear danger to the good order of his troops.¹⁵ The Air Force regulations at issue here are identical in purpose and effect to the regulation that we upheld in Spock. We therefore conclude that they do not violate the First Amendment.

Ill

The only novel question in this case is whether 10 U. S. C. § 1034 bars military regulations that require prior command approval for the circulation within a military base of petitions to Members of Congress. The statute says that “[n]o person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States.” (Emphasis added.) Glines contends that this law protects the circulation of his collective petitions as well as the forwarding of individual communications. We find his contention unpersuasive.

Section 1034 was introduced as a floor amendment to the Universal Military Training and Service Act of 1951 in response to a specific and limited problem. While Congress was debating the Act, Congressman Byrnes of Wisconsin learned that a young constituent seeking a hardship discharge from the Navy “had been told by his commanding officer . . . that a direct communication with his Congressman was prohibited and [that] it would make him subject to court-martial.” 97 Cong. Rec. 3776 (1951). When the Congressman made inquiry about the regulations imposing this restriction, the Secretary of the Navy informed him that they required “any letter from a member of the naval service . . . to a Congressman which affects the Naval Establishment . . . [to] be sent through official channels.” Ibid.16 The Congressman then proposed an amendment to the pending military legislation that would outlaw this requirement.

Congressman Byrnes’ purpose was “to permit any man who is inducted to sit down and take a pencil and paper and write to his Congressman or Senator.” Ibid.17 The entire legislative history of the measure focuses on providing an avenue for the communication of individual grievances. The Chairman of the Armed Services Committee succinctly summarized the legislative understanding. The amendment, he said, was intended “to let every man in the armed services have the privilege of writing his Congressman or Senator on any subject if it does not violate the law or if it does not deal with some secret matter.” Id., at 3877. It therefore is clear that Congress enacted § 1034 to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels.¹⁸

Both Congress and this Court have found that the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale. See, e. g., Middendorf v. Henry, 425 U. S. 25, 37-40, 43 (1976); id., at 49-51 (Powell, J., concurring); Parker v. Levy, 417 U. S., at 756; Orloff v. Willoughby, 345 U. S., at 93-94.¹⁹ In construing a statute that touches on such matters, therefore, courts must be careful not to “circumscribe the authority of military commanders to an extent never intended by Congress.” Huff v. Secretary of Navy, 188 U. S. App. D. C. 26, 35, 575 F. 2d 907, 916 (1978) (Tamm, J., concurring in part and dissenting in part), rev’d, post, p. 453. Permitting an individual member of the Armed Services to submit a petition directly to any Member of Congress serves the legislative purpose of § 1034 without unnecessarily endangering a commander’s ability to preserve morale and good order among his troops. The unrestricted circulation of collective petitions could imperil discipline. We find no legislative purpose that requires the military to assume this risk and no indication that Congress contemplated such a result.²⁰ We therefore decide that § 1034 does not protect the circulation of collective petitions within a military base.

IV

We conclude that neither the First Amendment nor 10 U. S. C. § 1034 prevents the Air Force from requiring members of the service to secure approval from the base commander before distributing petitions within a military base. We therefore hold that the regulations at issue in this case are not invalid on their face. Accordingly, the judgment of the Court of Appeals is

Reversed.

Mr. Justice Marshall took no part in the consideration or decision of this case.

1 Air Force Reg. 30-1 (9) (1971) provides:

“Right of Petition. Members of the Air Force, their dependents and civilian employees have the right, in common with all other citizens, to petition the President, the Congress or other public officials. However, the public solicitation or collection of signatures on a petition by any person within an Air Force facility or by a member when in uniform or when in a foreign country is prohibited unless first authorized by the commander.’¹ This regulation has been superseded by Air Force Reg. 30-1 (19) (b) (1977), which contains substantially the same provisions.

2 Air Force Reg. 35-15 (3) (a) (1970) provides:

“(1) No member of the Air Force will distribute or post any printed or written material other than publications of an official governmental agency or base regulated activity within any Air Force installation without permission of the commander or his designee. A copy of the material with a proposed plan or method of distribution or posting will be submitted when permission is requested. Distribution of publications and other materials through the United States mail or through official outlets, such as military libraries and exchanges, may not be prohibited under this regulation.

“(2) When prior approval for distribution or posting is required, the commander will determine if a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission, would result. If such a determination is made, distribution or posting will be prohibited and HQ USAF (SAFOI) will be notified of the circumstances.

“(3) Mere possession of materials unauthorized for distribution or posting may not be prohibited unless otherwise unlawful. However, such material may be impounded if a member of the Armed Forces distributes or posts or attempts to distribute or post such material within the installation. Impounded materials will be returned to the owner when departing the installation unless determined to be evidence of a crime.

“(4) Distribution or posting may not be prohibited solely on the ground that the material is critical of Government policies or officials.

“(5) In general, installation commanders should encourage and promote the availability to service personnel of books, periodicals, and other media which present a wide range of viewpoints on public issues.”

3 The petition to the Secretary of Defense, for example, read:

“Dear Secretary of Defense:

“We, the undersigned, all American citizens serving in the Armed Services of our nation, request your assistance in changing the grooming standards of the United States Air Force.

“We feel that the present regulations on grooming have caused more racial tension, decrease in morale and retention, and loss of respect for authorities than any other official Air Force policy.

“We are similarly petitioning Senator Cranston, Senator Tunney, Senator Jackson, and Congressman Moss in the hope that one of our elected or appointed officials will help correct this problem.” Glines v. Wade, 586 F. 2d 675, 677, n. 1 (CA9 1978).

4 Glines named as defendants three of his superior officers, the Secretary of the Air Force, and the Secretary of Defense.

5 The District Court also awarded Glines backpay and ordered him restored to active service. 401 F. Supp., at 132. The Court of Appeals affirmed the reinstatement order, but it vacated the backpay award on the ground that all monetary claims against the United States for more than $10,000 are within the exclusive jurisdiction of the Court of Claims. 586 F. 2d, at 681-682. Neither issue is before this Court.

6 The Court of Appeals held that Glines was not required to exhaust his administrative remedies by seeking relief from the Air Force Board for the Correction of Military Records. The court found that Glines' claim involved statutory and constitutional matters over which the Board had no jurisdiction. Id., at 678. Since the petitioners expressly declined to raise the exhaustion issue in this Court, Pet. for Cert. 6, n. 2, error in the Court of Appeals’ resolution of the issue would not affect our jurisdiction. Cf. Mathews v. Eldridge, 424 U. S. 319, 330 (1976).

7 The Court of Appeals’ decision and the discussion of this issue appear in its opinion in Allen v. Monger, 583 F. 2d 438, 440-442 (1978), cert. pending sub nom. Brown v. Allen, No. 78-1005.

8 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.” 424 U. S., at 831, n. 2, 840. 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, id., at 838-839. See id., at 841 (Burgee, C. J., concurring) ; id., at 848-849 (Powell, J., concurring).

9 Me. Justice SteveNs’ dissenting opinion seems to suggest that we should avoid the constitutional issue in this case by applying 10 U. S. C. § 1034 to petitioning activity that the statute otherwise would not protect. Post, at 378. Since Glines' petition to the Secretary of Defense was not covered by the statute, however, we agree with the Court of Appeals that “[t]his petition requires us to decide whether the First Amendment also protects Glines' activities.” 586 F. 2d, at 679. As the Court of Appeals understood, Glines’ petition to the Secretary was itself a sufficient reason for his reassignment to the standby reserves.

10 See Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 935-936 (1936); Terrell, Petitioning Activities on Military Bases: The First Amendment Battle Rages Again, 28 Emory L. J. 3, 5-14 (1979).

11 The Navy regulations adopted pursuant to DOD Dir. 1325.6 are at issue in Secretary of Navy v. Huff, post, p. 453, which we also decide today.

12 The Army regulations allowed a commander to delay, and the Department of the Army to prevent, the distribution within a military base of particular issues of a commercial publication. Army Reg. 210-10, ¶¶ 5-5 (c), (d) (1970). That part of the Army regulations was not at issue in Greer v. Spock. See 424 U. S., at 832, n. 2. The Air Force regulations contain no such provision.

13 Glines would distinguish Spock on the ground that the plaintiffs in that case were civilians who had no specific right to enter a military base. The distinction is unpersuasive. Our decision in Spock rejected a facial challenge to a regulation that required “any person,” civilian or military, to obtain prior permission for the distribution of literature within a base. Id., at 831. Unauthorized distributions of literature by military personnel are just as likely to undermine discipline and morale as similar distributions by civilians. Furthermore, the military has greater authority over a serviceman than over a civilian. See Parker v. Levy, 417 U. S. 733, 749-751 (1974). Even when not confronted with the special requirements of the military, we have held that a governmental employer may subject its employees to such special restrictions on free expression as are reasonably necessary to promote effective government. See CSC v. Letter Carriers, 413 U. S. 548, 565 (1973); Cole v. Richardson, 405 U. S. 676, 684 (1972); cf. Kelley v. Johnson, 425 U. S. 238, 245-248 (1976).

14 The special dangers present in certain military situations may warrant different restrictions on the rights of servicemen. But those restrictions necessary for the inculcation and maintenance of basic discipline and preparedness are as justified on a regular base in the United States, Schneider v. Laird, 453 F. 2d 345 (CA10) (per curiam), cert. denied, 407 U. S. 914 (1972); Dash v. Commanding General, 307 F. Supp. 849 (SC 1969), aff’d, 429 F. 2d 427 (CA4 1970) (per curiam), cert. denied, 401 U. S. 981 (1971), as on a training base, Greer v. Spock, supra, or a combat-ready installation in the Pacific, Carlson v. Schlesinger, 167 U. S. App. D. C. 325, 511 F. 2d 1327 (1975). Loyalty, morale, and discipline are essential attributes of all military service. Combat service obviously requires them. And members of the Armed Services, wherever they are assigned, may be transferred to combat duty or called to deal with civil disorder or natural disaster. Since the prior approval requirement supports commanders’ authority to maintain basic discipline required at nearly every military installation, it does not offend the First Amendment. “This Court has . . . repeatedly expressed its reluctance to strike down a statute on its face where there [are] a substantial number of situations to which it might be validly applied.” Parker v. Levy, supra, at 760.

15 Commanders sometimes may apply these regulations “irrationally, invidiously, or arbitrarily,” thus giving rise to legitimate claims under the First Amendment. Greer v. Spock, supra, at 840; see Secretary of Navy v. Huff, post, at 457-458, n. 5. But Glines, who — like the civilians in Spock — never requested permission to circulate his materials, has not and cannot raise such a claim. Greer v. Spock, 424 U. S., at 840; id., at 849 (Powell, J., concurring).

16 The relevant Navy regulation actually imposed restrictions on “MU petitions, remonstrances, memorials and communications of any person or persons in the naval service. . . .” Navy Regs., art. 1248 (1948). Glines argues that Congress intended to remove all restrictions imposed by the regulation, including those on collective as well as individual petitioning. But the plain language of § 1034 reflects no such intention. Indeed, nothing in the legislative history suggests that Congress even was aware of the full scope of the Navy regulation.

17 The original proposal protected any person from induction into a branch of the Armed Forces that restricted the “rights of its members to communicate directly with Members of Congress. . . .” 97 Cong. Rec. 3776 (1951). After the Chairman of the Armed Services Committee pointed out that the Navy did not induct its members, ibid., the proposal was amended to substantially its present form, id., at 3877, 3883. Universal Military Training and Service Act of 1951, §1 (d), 65 Stat. 78. The statute -underwent minor revisions when codified in 1956. Act of Aug. 10, 1956, 70A Stat. 80. No change in substance was intended. See S. Rep. No. 2484, 84th Cong., 2d Sess., 19-21, 95-96 (1956); H. R. Rep. No. 970, 84th Cong., 1st Sess., 8-10, 85 (1955).

18 Section 1034 stands in marked contrast to an analogous statute enacted about 40 years earlier in order to guarantee federal civil servants the right to petition Congress. That statute provides: “The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.” 5 U. S. C. § 7211 (1976 ed., Supp. II). (Emphasis added.)

19 See also Curry v. Secretary of Army, 194 U. S. App. D. C. 66, 595 F. 2d 873 (1979).

20 Glines says DOD Dir. 1325.6, ¶ III (G) (1969), shows that the Department of Defense itself construes the statute more broadly. The directive, however, adds nothing to the statutory language or the legislative history. It simply says that the Uniform Code of Military Justice, Art. 138, 10 U. S. C. § 938, protects the “right of members [of the Armed Forces] to complain and request redress of grievances against actions of their commander.” It then cites 10 U. S. C. § 1034 for the statement that “a member may petition or present any grievance to any member of Congress. . . .” In Huff v. Secretary of Navy, 188 U. S. App. D. C. 26, 32, 575 F. 2d 907, 913 (1978), rev’d, post, p. 453, the court concluded that this reference to § 1034 implied approval of group petitioning. But the regulations enforced in the Air Force and the other services demonstrate that the Department of Defense has construed its own directive otherwise. See supra, at 355-356, and n. 11.