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

675 F.2d 1010, 1982 U.S. App. LEXIS 19729
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 28, 1982
Docket81-1608
StatusPublished
Cited by14 cases

This text of 675 F.2d 1010 (Persons for Free Speech at Sac, Anne Else v. United States Air Force, Col. John R. McKone Maj. Gary Trout, in Their Official Capacities) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Persons for Free Speech at Sac, Anne Else v. United States Air Force, Col. John R. McKone Maj. Gary Trout, in Their Official Capacities, 675 F.2d 1010, 1982 U.S. App. LEXIS 19729 (8th Cir. 1982).

Opinions

ROSS, Circuit Judge.

Persons for Free Speech at SAC and Anne Else, appellants, appeal an order of the district court1 which held that the United States Air Force could constitutionally refuse to allow appellants to participate in the annual open house held at Offutt Air Force Base near Bellevue, Nebraska. We affirm.

I. Background

Offutt Air Force Base (OAFB) is a military installation which, among other things, serves as the headquarters for the Strategic Air Command. OAFB is a closed base and entry by nonmilitary persons requires the advance permission of the base commander. The base is entirely enclosed by a fence and guards are posted at each entrance.

OAFB holds an annual open house and on that day members of the public are allowed to enter certain designated areas of the base. An open house has been held for at least the past six years and has been attended by as many as 250,000 people. The open house includes aerial demonstrations, static displays of aircraft and military equipment, military bands and drill teams, and information and recruiting booths manned by the Air Force, Navy, Marine Corps and Coast Guard. Some nonmilitary organizations are also allowed to participate and are assigned booths at the open house. The nonmilitary groups include current defense contractors, local public service organizations and public safety concerns.

The 1981 open house was scheduled for June 14, 1981, and the operations plan for the open house stated the event would be used “to show the community the relationship between national objectives and the missions of various Offutt organizations.” The plan also noted that the open house would be used as a “favorable environment” for recruitment. By letter dated May 21, 1981, the appellants requested permission to participate in the open house “to present an alternative to the extremely dangerous and costly arms race.” Appellants’ amended complaint states that they “seek to speak to the propriety of nuclear proliferation, bilateral disarmament, the conversion of the weapons of war to instruments of peace, and the very existence of OAFB in our community.” Appellants’ letter stated that they were willing to comply with time, place and manner requirements and their tentative plans for participation included a slide show, clowns, theatre, leafleting, musical songs and peace literature.

By letter dated May 29, 1981, the base commander denied appellants’ request to participate, stating that “[yjour organization’s proposed activities would not be in keeping with the purpose of the Open House program.”

On June 11, 1981, the appellants sought declaratory and injunctive relief in federal district court. Following a hearing the district court on June 12th denied appellants’ request for a preliminary injunction allowing them to participate in the open house.

On June 13, 1981, Chief Judge Donald P. Lay of this court held a hearing on appellants’ expedited appeal. Chief Judge Lay convened a three-judge court by telephone, the other judges included were Judge Gerald W. Heaney and myself. Later on June 13, 1981, Chief Judge Lay issued an order which held, in pertinent part:

In view of the time element and the limited record this court finds it would be improvident to grant injunctive relief at this time.
In so ruling, this court recognizes that at issue here is not only the immediate relief for plaintiffs to appear at the Open House scheduled for tomorrow, June 14, [1013]*10131981, to exercise their alleged right to free speech, but also the more basic underlying challenge to the Air Force Regulations which provide a total ban to any kind of political speech on the Air Base at that time or any other time. In denying relief, this court does not in any way pass on the merits of the claim nor do we pass on the probability of success of the plaintiffs to their claim. * * *
In view of this order we remand to the district court, with directions that plaintiffs’ complaint be amended to reflect the challenge against the particular Air Force Regulations involved. This we deem necessary to avoid the issue of mootness as it might relate to the occurrence of a past event, to-wit, the Open House, scheduled tomorrow at the Air Base. The complaint should be amended within two weeks and the government should file its response in the district court within a reasonable time, not to exceed fourteen days. The parties thereafter should be given a reasonable time to supplement the record with additional evidence, including
(a) evidence as to what specific organizations had or may have booths at the Open House and what specific signs or literature were or may be displayed or distributed;
(b) evidence as to what specific literature and other speech forms the plaintiffs attempted to distribute or display at the Air Force Open House of June 14, 1981.
The district court within 60 days of this order, assuming the record is complete, should thereafter enter its final judgment. The court is requested to specifically address the issues as to: (a) whether the defendants have waived their right to ban all forms of free speech during public demonstrations such as the Open House; and (b) whether defendants have discriminated against the plaintiffs in view of the recognition given to other organizations to have booths and distribute literature; and (c) whether plaintiffs’ distribution of literature vis-a-vis public speeches and demonstrations may be banned without a finding by the Command of the Air Force that it would disrupt the discipline and morale of its troops. In addition to the above, the court should, of course, address any other issues raised by the parties.

On the evening of June 13th, the appellants petitioned the United States Supreme Court for a preliminary injunction. The petition was denied by Justice Blackmun.

II. The Decision of the District Court

On August 3, 1981, the district court held a bench trial and on September 23, 1981, issued its memorandum opinion.

The findings of fact by the district court outline four types of groups who had been allowed to maintain booths and distribute literature at the 1981 open house:

The first group included organizations that provided support services to those in attendance at the open house. For the most part, they operated refreshment concession stands and first aid stations. The second group was comprised of organizations that play an integral role in the function of the military, such as the various military service outfits attached to OAFB, recruiters, and defense contractors. Among the third group were several organizations indicative of community involvement by OAFB personnel in the City of Bellevue, Nebraska, such as the Chamber of Commerce and Big Brothers/Big Sisters. The fourth and final category of participants was comprised of safety-oriented concerns. For example, the Coast Guard handed out material on safe boating, and the Nebraska Highway Patrol distributed safe driving manuals.

All the literature distributed by the various groups at the open house was reviewed by the district court.

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675 F.2d 1010, 1982 U.S. App. LEXIS 19729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/persons-for-free-speech-at-sac-anne-else-v-united-states-air-force-col-ca8-1982.