ON REHEARING EN BANC
EBEL, Circuit Judge.
On October 3, 1990, a panel of this court by majority vote held that Peterson Air Force Base was not a public forum during the open house days that it held in 1985 and 1986 to celebrate Armed Forces Day. Accordingly, we upheld bar letters that had been issued by Peterson AFB against plaintiffs-appellees as a result of their activity in distributing anti-war leaflets during those open houses. Brown v. Palmer, 915 F.2d 1435 (10th Cir.1990). Our decision reversed the judgment of the district court which had concluded, upon cross-motions for summary judgment and a largely undisputed and stipulated record, that Peterson AFB should be characterized as a “public forum” during its 1985 and 1986 Armed Forces Day celebrations.
Following our panel decision, appellees petitioned this court for rehearing en banc, and we granted that petition. The thrust of the appellees’ argument on rehearing was that the “objective” evidence of what actually occurred at the open houses was sufficient to establish that Peterson AFB was a public forum during the open house events, notwithstanding the subjective testimony of Air Force personnel that they never intended to open up the base to public discussion of political or ideological topics. Appellees also challenged what they perceived to be the panel’s determination that military bases should be accorded special status for purposes of analyzing whether they are public fora. Finally, ap-pellees claim that the panel improperly substituted its judgment for that of the district court and that it erred in holding that the Air Force’s restrictions on political and ideological speech were viewpoint neutral.
We reaffirm our previous panel opinion and do not here repeat either the facts or the legal analysis contained in that opinion. This en banc opinion shall only respond to the specific arguments raised by appellees in their petition for rehearing.1
[734]*734Appellees do not challenge the panel’s ruling that the ultimate determination of whether Peterson AFB was converted into a public forum during its open houses depends upon the intent of the Air Force. Appellees’ Supplemental Brief at p. 2-3, 8. Indeed, the appellees could not argue otherwise in light of rulings both from the United States Supreme Court and from our court. Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 478 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985) (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse.”) (emphasis added); United States v. Albertini, 472 U.S. 675, 686, 105 S.Ct. 2897, 2905, 86 L.Ed.2d 536 (1985); Barnard v. Chamberlain, 897 F.2d 1059, 1064 (10th Cir.1990).
Instead, appellees’ principal argument on rehearing is that the panel opinion gave undue weight to the affidavits of the Base Commander at Peterson AFB and the Air Force Chief of Staff as to their intent without adequately considering objective evidence of intent based upon the activities that were actually permitted during the open houses. In this regard, appellees mis-perceive our panel opinion. While it is true that we did look to the affidavits as some evidence of the Air Force’s intent, we also looked to the objective evidence of what, in fact, was permitted to occur at the open houses. After reviewing all of the evidence, we concluded that there was a “lack of any evidence” establishing that the Air Force intended to open Peterson AFB to political or ideological debate. Brown v. Palmer, 915 F.2d at 1443. Intent can be discerned both by direct testimony and by indirect evidence of conduct. Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449 (“the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum”). We looked at, and considered, all of the evidence in the record in reaching our conclusion that there was no evidence that the Air Force intended to open Peterson AFB to public political and ideological debate during its open houses.
Appellees wrongly assume that just because the Air Force opened up Peterson AFB to some topics of speech and activity and invited the public onto the base that the Air Force should be deemed to have opened the base to all topics of speech and conduct. That is simply not the law. The Supreme Court has made it abundantly clear that the government may selectively preclude discussion of certain general topics while nevertheless inviting the public onto its premises to participate in speech on a variety of other topics.
In Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), a municipal mass transit authority permitted advertising within its cars on all subjects except for political advertising. It accepted advertising from retail and service establishments, churches, and civic and public service groups. In addition, of course, the mass transit authority solicited the entire public to enter upon, and to use, its mass transit facilities. Notwithstanding these facts, the Supreme Court concluded that the mass transit authority could, consistent with the First and Fourteenth Amendments, exclude political advertisements.
In Perry Education Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Court held that a public school district’s internal mail system had not become a designated public forum even though the mail system was made available to the union that represented the school employees, the YMCA, Cub Scouts, and other civic and church organizations. The Court upheld the right of the school district to exclude from the mail system a second union which wanted to use that facility for organizing efforts. The Court stated that “selective access did [735]*735not transform government property into a public forum.” Id. at p. 47, 103 S.Ct. at p. 956. Because the school district continued to exercise the right to exclude certain entities from use of its internal mail system, that facility could not be deemed to be a public forum. The school district’s policy of excluding an unauthorized union from use of its mail system while allowing its exclusive bargaining agent to use the mail system was held to be reasonable and rationally related to a legitimate school district purpose. Accordingly, the school district’s power to exclude the unauthorized union was upheld.
In Cornelius, 473 U.S. 788, 105 S.Ct. 3439, the NAACP Legal Defense Fund and other political lobbying groups sought access to government employees through the Combined Federal Campaign (CFC) in order to solicit contributions and to explain their mission.
Free access — add to your briefcase to read the full text and ask questions with AI
ON REHEARING EN BANC
EBEL, Circuit Judge.
On October 3, 1990, a panel of this court by majority vote held that Peterson Air Force Base was not a public forum during the open house days that it held in 1985 and 1986 to celebrate Armed Forces Day. Accordingly, we upheld bar letters that had been issued by Peterson AFB against plaintiffs-appellees as a result of their activity in distributing anti-war leaflets during those open houses. Brown v. Palmer, 915 F.2d 1435 (10th Cir.1990). Our decision reversed the judgment of the district court which had concluded, upon cross-motions for summary judgment and a largely undisputed and stipulated record, that Peterson AFB should be characterized as a “public forum” during its 1985 and 1986 Armed Forces Day celebrations.
Following our panel decision, appellees petitioned this court for rehearing en banc, and we granted that petition. The thrust of the appellees’ argument on rehearing was that the “objective” evidence of what actually occurred at the open houses was sufficient to establish that Peterson AFB was a public forum during the open house events, notwithstanding the subjective testimony of Air Force personnel that they never intended to open up the base to public discussion of political or ideological topics. Appellees also challenged what they perceived to be the panel’s determination that military bases should be accorded special status for purposes of analyzing whether they are public fora. Finally, ap-pellees claim that the panel improperly substituted its judgment for that of the district court and that it erred in holding that the Air Force’s restrictions on political and ideological speech were viewpoint neutral.
We reaffirm our previous panel opinion and do not here repeat either the facts or the legal analysis contained in that opinion. This en banc opinion shall only respond to the specific arguments raised by appellees in their petition for rehearing.1
[734]*734Appellees do not challenge the panel’s ruling that the ultimate determination of whether Peterson AFB was converted into a public forum during its open houses depends upon the intent of the Air Force. Appellees’ Supplemental Brief at p. 2-3, 8. Indeed, the appellees could not argue otherwise in light of rulings both from the United States Supreme Court and from our court. Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 478 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985) (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse.”) (emphasis added); United States v. Albertini, 472 U.S. 675, 686, 105 S.Ct. 2897, 2905, 86 L.Ed.2d 536 (1985); Barnard v. Chamberlain, 897 F.2d 1059, 1064 (10th Cir.1990).
Instead, appellees’ principal argument on rehearing is that the panel opinion gave undue weight to the affidavits of the Base Commander at Peterson AFB and the Air Force Chief of Staff as to their intent without adequately considering objective evidence of intent based upon the activities that were actually permitted during the open houses. In this regard, appellees mis-perceive our panel opinion. While it is true that we did look to the affidavits as some evidence of the Air Force’s intent, we also looked to the objective evidence of what, in fact, was permitted to occur at the open houses. After reviewing all of the evidence, we concluded that there was a “lack of any evidence” establishing that the Air Force intended to open Peterson AFB to political or ideological debate. Brown v. Palmer, 915 F.2d at 1443. Intent can be discerned both by direct testimony and by indirect evidence of conduct. Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449 (“the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum”). We looked at, and considered, all of the evidence in the record in reaching our conclusion that there was no evidence that the Air Force intended to open Peterson AFB to public political and ideological debate during its open houses.
Appellees wrongly assume that just because the Air Force opened up Peterson AFB to some topics of speech and activity and invited the public onto the base that the Air Force should be deemed to have opened the base to all topics of speech and conduct. That is simply not the law. The Supreme Court has made it abundantly clear that the government may selectively preclude discussion of certain general topics while nevertheless inviting the public onto its premises to participate in speech on a variety of other topics.
In Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), a municipal mass transit authority permitted advertising within its cars on all subjects except for political advertising. It accepted advertising from retail and service establishments, churches, and civic and public service groups. In addition, of course, the mass transit authority solicited the entire public to enter upon, and to use, its mass transit facilities. Notwithstanding these facts, the Supreme Court concluded that the mass transit authority could, consistent with the First and Fourteenth Amendments, exclude political advertisements.
In Perry Education Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Court held that a public school district’s internal mail system had not become a designated public forum even though the mail system was made available to the union that represented the school employees, the YMCA, Cub Scouts, and other civic and church organizations. The Court upheld the right of the school district to exclude from the mail system a second union which wanted to use that facility for organizing efforts. The Court stated that “selective access did [735]*735not transform government property into a public forum.” Id. at p. 47, 103 S.Ct. at p. 956. Because the school district continued to exercise the right to exclude certain entities from use of its internal mail system, that facility could not be deemed to be a public forum. The school district’s policy of excluding an unauthorized union from use of its mail system while allowing its exclusive bargaining agent to use the mail system was held to be reasonable and rationally related to a legitimate school district purpose. Accordingly, the school district’s power to exclude the unauthorized union was upheld.
In Cornelius, 473 U.S. 788, 105 S.Ct. 3439, the NAACP Legal Defense Fund and other political lobbying groups sought access to government employees through the Combined Federal Campaign (CFC) in order to solicit contributions and to explain their mission. The NAACP Legal Defense Fund argued that the CFC was a public forum because it allowed numerous charities to participate in its campaign. The Supreme Court disagreed, noting that the CFC had chosen to exclude all political advocacy groups, and thus, CFC remained a nonpublic forum. The Court held that it was reasonable for the CFC to exclude political advocacy groups in order to eliminate controversy and in order to avoid the reality or appearance of government entanglement with particular political viewpoints. Thus, the Court upheld the right of CFC to exclude the NAACP Legal Defense Fund.
In United States v. Kokinda, — U.S. -, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), the United States allowed various groups to distribute leaflets, speak, and picket on the premises of a post office. The government even allowed political statements to be posted on a bulletin board at the post office. However, it did not allow solicitations for money. A group wished to solicit money for political purposes on a sidewalk which was constructed on postal property and which was the means of public access to the post office from the adjacent parking lot. That group claimed, in part, that the sidewalk had become a public forum by virtue of the fact that the public had been invited to use the sidewalk and non-solicitation activities were allowed on those premises. The Supreme Court disagreed. It held: “Even conceding that the forum had been dedicated to some First Amendment uses, and thus is not a purely non-public forum, regulation of the reserved non-public uses would still require application of the reasonableness test.” Id. 110 S.Ct. at 3121 (emphasis added). The Court concluded that it was reasonable to exclude solicitations for funds because of the disruptive nature of that expressive activity. Thus, the Court upheld that exclusionary regulation by the Postal Service.
If anything, the Supreme Court has been even more accepting of selective restrictions on military bases. In Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), the Court addressed a situation where Ft. Dix had precluded “speeches and demonstrations of a partisan, political nature.” The base did, however, welcome visitors, and it routinely invited civilian speakers to give talks ranging from business management to drug abuse as well as to invite civilian clergy to preach religious sermons on base. The base further permitted access to public groups to present theatrical exhibitions and musical programs. Political campaigning, however, was precluded. Notwithstanding that Ft. Dix allowed access to so many other groups for expressive activity, the Supreme Court concluded that Ft. Dix had not “abandoned any claim of special interest in regulating the distribution of unauthorized leaflets or the delivery of campaign speeches for political candidates within the confines of the military reservation.” Id. at 837, 96 S.Ct. at 1217. The Court noted that this selective restriction against political campaigning was reasonable because it was “wholly consistent with the American constitutional tradition of a politically-neutral military establishment under civilian control.” Id. at 839, 96 S.Ct. at 1218. Accordingly, it held that the regulations on their face did not violate the plaintiff’s constitutional rights.
Finally, in Albertini, 472 U.S. 675, 105 S.Ct. 2897, the Supreme Court was confronted with a situation where a defendant had been prosecuted for attending a mili[736]*736tary open house at Hickam Air Force Base and participating in a peaceful demonstration against the arms race in violation of a bar letter that previously had been issued against him. Although the holding of the case was that Albertini could be excluded from Hickam AFB even if it were a public forum because of his prior criminal conduct, the Court went on to criticize the suggestion that Hickam had become a public forum during the open house. The Court stated “there is ‘no generalized constitutional right to make political speeches or distribute leaflets,’_on military bases, even if they are generally open to the public.” Id. at 685, 105 S.Ct. at 2904 (quoting Greer, 424 U.S. at 838, 96 S.Ct. at 1217). The Court went on to state even more specifically, “[n]or did Hickam become a public forum merely because the base was used to communicate ideas or information during the open house.” Id. 472 U.S. at 686, 105 S.Ct. at 2904 (emphasis added).
The Eighth Circuit Court of Appeals similarly concluded that Offutt Air Force Base did not become a public forum during its open house. Persons for Free Speech at SAC v. United States Air Force, 675 F.2d 1010 (8th Cir.) (en banc), cert. denied, 459 U.S. 1092, 103 S.Ct. 579, 74 L.Ed.2d 939 (1982). Offutt AFB held an annual open house at which time the public was invited to come on the base. The open house had been attended by as many as two-hundred fifty thousand people, and it included displays of military equipment, military bands, and many non-military organizations (including defense contractors, local public service organizations, and public safety organizations) who were assigned display booths. The petitioners sought permission for a booth to advocate anti-war beliefs, and their request was denied because the Air Force precluded political or ideological speech on base. The Eighth Circuit upheld this restriction, holding that the open house activities did not convert Offutt Air Force Base into a public forum and that the restrictions against political speech on an air force base were reasonable. Accordingly, the Eighth Circuit rejected the petitioners’ claim that the First Amendment entitled them to the right to present their view at the open house.
Applying the preceding precedents to the undisputed facts in this case lead to a clear conclusion that Peterson AFB was not opened as a public forum to political and ideological speech during its open houses. As noted in the panel decision, the Air Force Chief of Staff, General Larry Welch, stated that “an ‘open house’ event was never intended to function as an open political forum for the discussion and debate of the important and sometimes divisive political questions of the day ...” R. Vol. I, Doc. 9, Tab 3, ¶ 8 (Affidavit of Larry D. Welch). See also Affidavit of Base Commander Colonel James O. Palmer, R. Vol. I, Doc. 9, Tab 1 at 3 (in creating open houses, the Air Force did not create a forum for debating political or ideological topics). Colonel Palmer went on to state in his affidavit that Peterson AFB had consistently denied all requests to discuss political and ideological subjects on base. Among the petitions that have been denied at Peterson AFB are the following: “Petitions aimed at advocating a no smoking law; putting political pressure on the Soviet Union to leave Afghanistan; creating an Olympic Hall of Fame in Colorado Springs; opposing an atheists’ petition before the Federal Communications Commission to stop religious broadcasting; requiring tax increases to be approved only by a vote of the people; and declaring English the official language of Colorado.” Id. at 2.2 Appellees introduced no contrary testimony disputing the Air Force policy of precluding political or ideological speech.
Appellees would have us turn, instead, to an objective analysis of the actual activities and conduct that were permitted at Peterson AFB during its open houses in order to infer whether the Air Force intended to open the base to political and ideological [737]*737speech.3 We did include such an analysis in our previous panel decision, and we do so again now. The parties stipulated as to the activities that occurred during the open houses, so there is absolutely no dispute of fact on that matter. The following is a complete summary of the stipulated activities that occurred during the open house events: (1) Air Force recruiting; (2) discussion by defense contractors concerning their weapon systems currently in use by the Air Force; (3) distribution of circulars advertising the Cheyenne, Wyoming Year-Round Walk and advertising the Historic MacGregor Ranch Walk in Estes Park, Colorado; (4) distribution of one edition of a newspaper entitled the “Space Observer”; and (5) a brochure about the International Plastic Modelers’ Society. There were also various aerial shows, bands, a NORAD ceremony, and military reviews, all performed by military personnel. In addition, one of the plaintiffs attending the Guest Day received the following from military representatives of the base Chaplain: (1) an invitation to the Peterson AFB Chapel to attend a luncheon and religious lecture; (2) a book entitled, “About Being Catholic”; (3) a newspaper entitled “The Catholic Herald”; (4) a copy of The Good News Testament Bible that contained the inscription “presented by the Air Force”. None of these activities were political or ideological in nature, and the absence of any political or ideological speech strongly corroborates the direct testimonial evidence from Colonel Palmer and General Welch.
Appellees specifically focus upon the religious literature that was distributed to one of them during the 1987 open house and they argue that it should be considered to be political and ideological in nature.4 However, most of these materials consist of little more than information about religious services offered by Peterson AFB to its own Air Force members. That material fits well within the objective of the open house of being informational in nature and describing activities and equipment that are available on base. Appellees refer to the single copy of the Bible which was distributed to one of them and they refer to Matthew 5:38, which counsels not to seek revenge against a wrongdoer, and Romans 13:1, which addresses the godliness of obeying authority. However, the qualitative difference between these general religious statements and a political discussion about current United States policy on the use of military force is obvious. Although one could fashion a connection between any two subjects, no matter how dissimilar they may be, our job is not to fashion abstract connections, but rather to attempt to discern the intent of the Air Force by applying a pragmatic, common sense analysis of the conduct and activities that were allowed (as well as the conduct and activities that were disallowed) during the sponsored open house. This record is absolutely devoid of any evidence, direct or indirect, subjective or objective, testimonial or by conduct, that the Air Force intended to abandon its traditional and long-standing policy of precluding public political and ideological debate during its open house events.5
[738]*738There is another response as well to the appellees’ argument that the dissemination of religious literature converted the Peterson AFB open house into a public forum. All of the religious materials, including the Bible, were distributed by military personnel — the Peterson AFB Chaplain — and not by civilian members of the public. If the government’s own speech could be used to support a claim that it had thereby caused its facilities to become a public forum, then “display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require.” United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 130 n. 6, 101 S.Ct. 2676, 2685 n. 6, 69 L.Ed.2d 517 (1981) (quoting Lehman, 418 U.S. at 304, 94 S.Ct. at 2717). See also Persons For Free Speech, 675 F.2d at 1017-18. The Air Force is free to discuss the religious activities that are available to its base personnel and to allow the base Chaplain to hand out Bibles as an expression of the religious atmosphere available on base without causing the base to become a public forum.6
Appellees next challenge what they perceived to be the panel’s determination that military bases are in a special category for public forum analysis. Appellees suggest that under our panel decision a military base could never be a designated public forum. That is an incorrect reading of our panel decision.
It is undeniable that the Supreme Court has stated that military bases are, by their very nature, traditionally nonpublic and that, in determining whether the military has intended to open up a military base to become a public forum, consideration should be given to the resulting loss of control and entanglement in political controversy that would occur if the military base were held to be a public forum. In Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), the Supreme Court affirmed the nonpublic status of Ft. Dix with the following observations: “this Court over the years has on countless occasions recognized the special constitutional function of the military in our national life....” Id. at 837, 96 S.Ct. at 1217. “A necessary concomitant of the basic function of a military installation has been the ‘historically unquestioned power of [its] commanding officer summarily to exclude civilians from the area of his command’.” Id. at 838, 96 S.Ct. at 1217. In Albertini, the Supreme Court was disinclined to extend public forum status to Hickam Air Force Base, notwithstanding the public activities allowed during its open house events. The Court said: “A military base ... is ordinarily not a public forum ... even if it is open to the public,” 472 U.S. at 684, 105 S.Ct. at 2904, “... [n]or did Hickam become a public forum merely because the base was used to communicate ideas or information during the open house.” Id. at 686, 105 S.Ct. at 2905. In Kokinda, the Court similarly advised that “[cjonsideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the government’s interest must be assessed in light of the characteristic nature and function of the particular forum involved.” 110 S.Ct. at 3122 (quoting Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 650-51, 101 S.Ct. 2559, 2565-66, 69 L.Ed.2d 298 (1981)). And, in Cornelius, the Court said:
In cases where the principal function of the property would be disrupted by expressive activity, the Court is particularly reluctant to hold that the government intended to designate a public forum. Accordingly, we have held that military reservations, Greer v. Spock, and jailhouse grounds, Adderly v. Florida [385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966)] do not constitute public fora.
473 U.S. at 804, 105 S.Ct. at 3450.
The United States Courts of Appeals have also frequently commented on the [739]*739special need of the military to retain control over the content of public speech permitted on military bases. Frequently, Courts of Appeal have rejected claims that military bases have become public fora because selected public activities and speech have been permitted to occur on base. See Shopco Distribution Co., Inc. v. Commanding General, 885 F.2d 167, 172-73 (4th Cir.1989); United States v. McCoy, 866 F.2d 826, 832-34 (6th Cir.1989); M.N.C. of Hinesville, Inc. v. United States Dept. of Defense, 791 F.2d 1466, 1472-74 (11th Cir.1986); Persons For Free Speech, 675 F.2d at 1015-18.
This is not to say that a military base, or a portion of such a base, can never become a public forum. To the contrary, if the evidence clearly supports a conclusion that the military intended “to abandon” control over public conduct or speech on the base or on a portion of a base, then that portion of the base could be deemed to be a public forum. The only case where the Supreme Court has held that a portion of a military base was a public forum was the case of Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972). There, the Court held that the military had “abandoned any claim that it has a special interest in who walks, talks, or distributes leaflets on [new Branfels Avenue],” which is a street that runs through Ft. Sam Houston. Id. at 198, 92 S.Ct. at 1843. The street essentially had been opened up to unrestricted and unsupervised public access, and the Court held, accordingly, that it had become a public forum. Lest Flower be interpreted too broadly as precedent for declaring military facilities as public fora, the Supreme Court later limited that case to its “unusual facts.” See Albertini, 472 U.S. at 685, 105 S.Ct. at 2904, and Greer, 424 U.S. at 836, 96 S.Ct. at 1216. In Greer, the Court instructed that Flower should be read very narrowly, stating:
The Court of Appeals was mistaken, therefore, in thinking that the Flower case is to be understood as announcing a new principle of constitutional law, and mistaken specifically in thinking that Flower stands for the principle that whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a ‘public forum’ for purposes of the First Amendment. Such a principle of constitutional law has never existed, and does not exist now.
424 U.S. at 836, 96 S.Ct. at 1216.
Thus, when we noted in our prior panel decision that courts have been reluctant to extend public forum status to military bases, we did not propose any special test for military bases. Rather, we simply recognized the reality of existing precedent. In all cases, whether military bases are involved or not, the test is simply whether the government has intended to open up the facility to public debate on the particular subject matter sought to be addressed by the person seeking access to that government facility. When the government facility is a military base, the evidence cannot be considered in a vacuum. Rather, we must consider the evidence against the background of the traditional need of the military to retain control over the scope and extent of public activity and speech permitted on the military base. We must be sensitive to the need of the military to maintain security over the base. Finally, we must keep in mind the traditional role of the military to avoid becoming embroiled in politics and ideological debate. The appellees argue that our holding will restrict free speech, but, in reality, the greater restriction would occur if we were to adopt the appellees’ position. Here, the appellees were still free to advocate their own views of pacifism on the public streets immediately leading into Peterson AFB and they had access to the many other public fora within the immediate vicinity of Peterson AFB to reach the public that visited there during the open houses.
If appellees’ position were adopted, the flow of information to the public from Peterson AFB would likely be restricted. The military, most likely, could not risk the possibility that Peterson AFB would be labeled as a public forum. Affidavit of Larry D. Welch, R. Vol. I, Doc. 9, Tab 3, H 11. Consequently, the Air Force would have to consider possibly abandoning altogether [740]*740the practice of hosting open house events. Thus, it is possible that the public would lose the opportunity to come onto military bases; to learn about the weapon systems, activities and facilities that are there; and then to take that information back out to the public fora that are available and there to debate, if they wish, the proper role of the military.
For the reasons stated, we affirm our prior panel decision, which REVERSES the district court’s July 20, 1988 Judgment.