United States v. Corrigan

144 F.3d 763

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 25, 1998
• Docket: 96-8586
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 96-8586

D.C. Docket No. 4:96-CR-00004-001(JRE)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

WILLIAM J. CORRIGAN,

Defendant-Appellant.

No. 96-8587

D.C. Docket No. 4:96-CR-00007-001(JRE)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ROBERT M. HOLSTEIN, JR.,

Defendant-Appellant. No. 96-8588

D.C. Docket No. 4:96-CR-00009-001(JRE)

RAYMOND G. LAPORT,

No. 96-8589

D.C. Docket No. 4:96-CR-00010-001(JRE)

JOANNE LINGLE,

Defendant-Appellant. No. 96-8590

D.C. Docket No. 4:96-CR-00011-001(JRE)

JOHN X. LINNEHAN,

No. 96-8591

D.C. Docket No. 4:96-CR-00013-001(JRE)

CLAIRE C. O’MARA,

Defendant-Appellant. No. 96-8592

D.C. Docket No. 4:96-CR-00015-001(JRE)

JOSEPH A. ZITO,

Appeals from the United States District Court for the Middle District of Georgia

(June 25, 1998)

Before TJOFLAT and BIRCH, Circuit Judges, and HOWARD*, Senior District Judge.

_____________________________________________ *Honorable Alex T. Howard, Jr., Senior U.S. District Judge for the Southern District of Alabama, sitting by designation.

TJOFLAT, Circuit Judge:

1 Thirteen protesters staged political demonstrations on the grounds of the Fort Benning

military base in Georgia and were subsequently convicted of criminal trespass pursuant to 18

U.S.C. § 1382 (1994). Seven of the demonstrators now appeal, asserting that their convictions

were obtained in violation of the First Amendment, because the regulation prohibiting political

demonstrations on the base was not applied in a content-neutral fashion. We conclude that the

regulation was applied in a content-neutral fashion and that the appellants’ convictions were not

obtained in violation of the First Amendment. We therefore affirm the judgments of the district

court.

I.

The United States Army School of the Americas (“USARSA”) is a facility maintained at

Fort Benning, Georgia, for the purpose of providing military education and training to military

personnel of Caribbean, Central American, and South American countries. See 10 U.S.C. §

4415 (1994). The facility is controversial; its graduates, including former Panamanian dictator

Manuel Noriega, are alleged to have been involved in various human rights abuses throughout

Latin America and the Caribbean, including the 1980 assassination of Salvadoran Archbishop

Oscar Romero and the 1989 murders of six Jesuit priests in El Salvador.

Political protests at the base are frequent. On November 15, 1995, appellant Linnehan

and four other defendants1 entered Fort Benning, went to the Officers’ Club, and distributed

leaflets calling for the closure of USARSA. Linnehan and his companions were apprehended

1 There were thirteen defendants before the district court; only seven have appealed, and their appeals have been consolidated.

2 and were ordered to leave the base and not to return. They were later charged with criminal

trespass pursuant to 18 U.S.C. § 1382 (1994).

The next day, November 16th, appellants Corrigan, Holstein, Laport, Lingle, O’Mara,

and Zito, along with four co-defendants,2 arrived at Fort Benning. The appellants and the other

defendants wished to commemorate the 1989 murders of the six Jesuit priests in El Salvador by

staging a demonstration calling for the closure of USARSA. The demonstrators assembled just

outside of the base, where they were met by a representative of the Staff Judge Advocate. The

representative read to them a proclamation from base commander Major General John W.

Hendrix that stated the base policy against public political demonstrations and warned that

anyone who entered the base and engaged in a demonstration could be prosecuted for criminal

trespass.

After the proclamation was read, the ten demonstrators entered Fort Benning and walked

about a half-mile into the base. Eight of the demonstrators wore white T-shirts spattered with

blood; these demonstrators were intended to represent the six priests killed in El Salvador and

two others who were killed with them. The two remaining demonstrators wore fatigues and held

cardboard replicas of machine guns; these two protesters were intended to represent the

Salvadoran soldiers who carried out the killings. When military and civilian police officers

approached the demonstrators, the two men in fatigues pretended to shoot the eight “victims,”

who fell to the ground. All ten demonstrators were then arrested and charged with criminal

2 Defendants Bichsel and De Benedette participated in the demonstrations on both November 15th and November 16th. Neither Bichsel nor De Benedette are parties to this appeal, however.

3 The defendants’ cases were heard at a bench trial in the district court. The defendants

severally moved to dismiss the indictments on the ground that the United States had selectively

prohibited those opposing the continued maintenance of USARSA from engaging in public

political demonstrations on the grounds of the base, while allowing those who supported the

maintenance of USARSA to engage in such activity, and that the arrests of the defendants

pursuant to this policy were therefore unconstitutional. After trial, the district court denied the

defendants’ motions to dismiss, and all thirteen defendants were convicted of criminal trespass

pursuant to section 1382 and sentenced to terms of imprisonment ranging from two months to six

months. Seven of the thirteen defendants now appeal their convictions,3 asserting that their

convictions should be reversed on First Amendment grounds. We affirm.

II.

Section 1382 provides:

§ 1382. Entering military, naval, or Coast Guard property

Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof--

3 All of the appellants have served out their sentences. Their appeals are not moot, however. The Supreme Court has recognized that "the possibility of a criminal defendant's suffering 'collateral legal consequences' from a sentence already served precludes a finding of mootness." Minnesota v. Dickerson, 508 U.S. 366, 371 n. 2, 113 S.Ct. 2130, 2134 n. 2, 124 L.Ed.2d 334 (1993) (citations omitted). Because "[a] number of disabilities may attach to a convicted defendant even after he has left prison," a defendant who has finished serving his sentence still has standing to challenge the legality of his conviction. North Carolina v. Rice, 404 U.S. 244, 247, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971).

4 Shall be fined under this title or imprisoned not more than six months, or both.

18 U.S.C. § 1382 (1994). The appellants were charged and convicted pursuant to the first clause

of Section 1382, on the ground that they entered Fort Benning “for [a] purpose prohibited by . . .

lawful regulation” -- to conduct a public political demonstration. Such demonstrations are

prohibited by the Commanding General of Fort Benning pursuant to a base regulation which

provides as follows:

a. Picketing, demonstrations, sit-ins, protest marches, political speeches, and similar activities which could interfere with or prevent the orderly accomplishment of the installation’s mission, or which present a clear danger to the loyalty, discipline, or morale of the troops are prohibited and will not be conducted on this post except as provided in this regulation. Applications for exception shall be submitted in writing to the Provost Marshal at least seven days prior to the proposed demonstration or other activity.

b. No one shall enter or remain on this post for any of the purposes prohibited by this regulation, and such entry will constitute a violation of 18 U.S.C. § 1382.

United States Army Infantry Center (Fort Benning, Georgia Garrison) Reg. No. 210-5, ¶ 44(a)-

(b). The appellants assert that their convictions should be reversed because Section 1382 and

Regulation 210-5, paragraph 44 are unconstitutional as applied to them.

The scope of the government's power to restrict political demonstrations or other First

Amendment activity on government property depends upon the type of forum involved. See

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 799-800, 105 S.Ct. 3439,

3447-48, 87 L.Ed.2d 567 (1985); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,

44-46, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983). In Perry, the Supreme Court identified

three types of fora: the traditional public forum, the public forum created by government

designation, and the nonpublic forum. Perry, 460 U.S. at 44-46, 103 S.Ct. at 954-55. In

5 traditional public fora, such as public streets or parks, the government may impose content-based

regulations only if the regulations are "necessary to serve a compelling state interest and [are]

narrowly drawn to achieve that end," and may impose content-neutral time, place, and manner

restrictions only if they "are narrowly tailored to serve a significant government interest, and

leave open ample alternative channels of communication." Perry, 460 U.S. at 45, 103 S.Ct. at

954. “A similar standard applies to [public] property that is not a traditional public forum, but

which has been opened by the government as a place for expressive conduct.” United States v.

Belsky, 799 F.2d 1485, 1488 (11th Cir. 1986) (citing Perry, 460 U.S. at 45-46, 103 S.Ct. at 955).

Different, more lenient standards control the government’s regulation of First

Amendment activities in nonpublic fora. A nonpublic forum is “public property that is not by

tradition or designation a forum for public communication.” Perry, 460 U.S. at 46, 103 S.Ct. at

955. Government has the right to preserve such nonpublic fora for their lawfully dedicated

purposes, and may impose regulations of speech in nonpublic fora as long as the regulations are

reasonable and are content-neutral. See id.; United States v. Kokinda, 497 U.S. 720, 730, 110

S.Ct. 3115, 3121-22, 111 L.Ed.2d 571 (1990).

There is no question, and the appellants do not dispute, that Fort Benning is a nonpublic

forum that, like virtually all military installations, has never been regarded or designated as a

place open to public speech activities. See United States v. Albertini, 472 U.S. 675, 686, 105

S.Ct. 2897, 2905, 86 L.Ed.2d 536 (1985) ("Military bases generally are not public fora . . . .");

Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976) ("The notion

that federal military reservations, like municipal streets and parks, have traditionally served as a

place for free public assembly and communication of thoughts by private citizens is . . .

6 historically and constitutionally false."); M.N.C. of Hinesville, Inc. v. United States Dep’t of

Defense, 791 F.2d 1466, 1473 (11th Cir. 1986). As the Supreme Court has stated, it is “the

business of a military installation . . . to train soldiers, not to provide a public forum.” Greer,

424 U.S. at 838, 96 S.Ct. at 1217. Accordingly, military officials at Fort Benning may impose

regulations on speech as long as the regulations are reasonable and content-neutral. See

Ethredge v. Hail, 56 F.3d 1324, 1327 (11th Cir. 1995).

The appellants do not argue that Section 1382 and Regulation 210-5, paragraph 44 are

unreasonable or non-content-neutral on their face. Such a facial challenge would not likely be

successful. The Supreme Court has stated that Section 1382 is content-neutral, see Albertini,

472 U.S. at 687, 105 S.Ct. at 2906, and we believe the same to be true of Regulation 210-5,

paragraph 44. Moreover, we believe that both the statute and the base regulation are facially

reasonable in light of “the traditional need of the military to retain control over the scope and

extent of public activity and speech permitted on . . . military base[s],” Brown v. Palmer, 944

F.2d 732, 739 (10th Cir. 1991), the interest of the government in “keeping official military

activities . . . free of entanglement with partisan political campaigns,” Greer, 424 U.S. at 839, 96

S.Ct. at 1218, and the military commanding officer’s “practically exclusive” power to admit

private persons to, or exclude them from, the area of his command “in the interest of good order

and military discipline.” Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367

U.S. 886, 893, 81 S.Ct. 1743, 1747-48, 6 L.Ed.2d 1230 (1961) (internal quotation marks and

citations omitted).

7 Instead, the appellants argue that Section 1382 and Regulation 210-5, paragraph 44 have

been applied in a non-content-neutral fashion.4 They point out that numerous military officials,

congressional representatives, and senators have publicly spoken in favor of the maintenance of

USARSA while participating in various ceremonies and assemblies on the grounds of the base.

This, they argue, is a clear violation of Regulation 210-5's prohibition of political speech on

base. The aforementioned officials were not prosecuted for engaging in public speech activities

on base, however. The appellants argue that this constitutes a non-content-neutral -- and thus

unconstitutional -- application of Section 1382 and Regulation 210-5, paragraph 44; pro-

USARSA speech is permitted by base officials, they assert, while anti-USARSA speech is

punished by criminal prosecution. 5

The appellants have simply misread the controlling regulation. Regulation 210-5,

paragraph 44(a) does not flatly prohibit all speech activities on base; rather, it prohibits speech

activities “which could interfere with or prevent the orderly accomplishment of the installation’s

mission, or which present a clear danger to the loyalty, discipline, or morale of the troops.”

U.S.A.I.C. (Fort Benning, Georgia Garrison) Reg. No. 210-5, ¶ 44(a). Base officials have

determined that public political demonstrations on the grounds of the base are likely to “prevent

the orderly accomplishment of the installation’s mission . . . or [to endanger] the loyalty,

4 The relevant facts are not in dispute. We are therefore left with the question whether the application of the statute and regulation at issue was constitutional. This is an issue of law which we review de novo. See Agan v. Vaughn, 119 F.3d 1538, 1541 (11th Cir. 1997). 5 We note that the appellants do not assert that they were selectively prosecuted in violation of the Equal Protection clause. See, e.g., Jones v. White, 992 F.2d 1548, 1571-72 (11th Cir. 1993).

8 discipline, or morale of the troops,” but that speeches by public officials and military officers,

made during official ceremonies and assemblies, are not.

“[M]ilitary officials need not demonstrate actual harm before implementing a regulation

restricting speech,” and may act to forestall reasonably anticipated harm to morale or to the

orderly functioning of the base. Ethredge, 56 F.3d at 1328; see also Persons for Free Speech at

SAC v. United States Air Force, 675 F.2d 1010, 1020 (10th Cir.) (en banc) (holding that

deference must be afforded to the reasonable judgments of base commanders), cert. denied, 459

U.S. 1092, 103 S.Ct. 579, 74 L.Ed.2d 939 (1982). We find the distinction between official

speechmaking and public political demonstrations drawn by Fort Benning officials to be a

reasonable one in light of the public policies recited supra. The appellants and other anti-

USARSA demonstrators have themselves made clear that such a distinction is reasonable; past

anti-USARSA demonstrations on the grounds of Fort Benning have included not only mock

executions, but also protest marches by hundreds of demonstrators at a time, and the splattering

of blood on the main building of the school. Such demonstrations certainly are likely to “prevent

the orderly accomplishment of the installation’s mission . . . or [to endanger] the loyalty,

discipline, or morale of the troops” -- indeed, such demonstrations are at least in part intended to

do so. Speeches made by congressmen and military officers during official ceremonies and

assemblies, however, are not likely to cause disruption of military activities or derogation of

morale on the base.

We also find that the distinction between official speechmaking and public political

demonstrations drawn by Fort Benning officials has been applied in a content-neutral fashion.

Ramon Lopez, a civilian and the executive director of the School of the Americas Support

9 Group, a private organization unaffiliated with USARSA, testified at trial that he and others had

once staged a pro-USARSA counter-demonstration outside of the grounds of Fort Benning.

Lopez testified that an officer from the Judge Advocate General’s office met the group outside

the base and warned them that, if they were to take their pro-USARSA demonstration onto the

base, they would be arrested for trespassing. Similarly, Bernard Pfeiffer, the chief of

administrative and civil law in the Office of the Staff Judge Advocate at Fort Benning, testified

that no pro-USARSA demonstrations have ever been allowed on the base, and that even official

speakers would be subject to prosecution under Section 1382 “to the extent that they [might]

engage in . . . disruptive activities.”

We therefore conclude that Section 1382 and Regulation 210-5, paragraph 44, as applied

to prohibit public political demonstrations while allowing official speeches, are content-neutral

as well as reasonable, and that the statute and regulation do not violate the First Amendment.

Accordingly, we further conclude that the appellants’ convictions were not obtained in violation

of the Constitution. We therefore AFFIRM the judgments of the district court.

SO ORDERED.