Brown v. Glines
444 U.S. 348 (1980)

Annotate this Case

U.S. Supreme Court

Brown v. Glines, 444 U.S. 348 (1980)

Brown v. Glines

No. 78-1006

Argued November 6, 1979

Decided January 21, 1980

444 U.S. 348

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Air Force regulations require members of that service to obtain approval from their commanders before circulating petitions on Air Force bases. Respondent Air Force Reserve officer was removed from active duty for distributing on an Air Force base petitions to Members of Congress and the Secretary of Defense, which complained about Air Force grooming standards, without having obtained approval of the base commander as required by the regulations. Respondent then brought suit in District Court challenging the validity of the regulations. That court granted summary judgment for respondent, declaring the regulations facially invalid, and the Court of Appeals affirmed.

Held: The regulations are not invalid on their face. Pp. 444 U. S. 353-361.

(a) Such regulations do not violate the First Amendment. Greer v. Spock,424 U. S. 828. They protect a substantial Government interest unrelated to the suppression of free expression -- the interest in maintaining the respect for duty and discipline so vital to military effectiveness -- and restrict speech no more than is reasonably necessary to protect such interest. Since a military 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. Pp. 444 U. S. 353-358.

(b) Nor do the regulations violate 10 U.S.C. § 1034, which proscribes unwarranted restrictions on a serviceman's right to communicate with a Member of Congress. As § 1034's legislative history makes clear, Congress enacted the statute to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels, and not to protect the circulation of collective petitions within a military base. Permitting an individual serviceman to submit a petition directly to any Member of Congress serves § 1034's legislative purpose without unnecessarily endangering a commander's ability to preserve morale and good order among his troops. Pp. 444 U. S. 358-361.

586 F.2d 675, reversed.

POWELL., J., delivered the opinion of the Court, in which BURGER, C.J., WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed a

Page 444 U. S. 349

dissenting opinion, post, p. 444 U. S. 361. STEWART, J., filed a dissenting opinion in which BRENNAN, J., joined, post, p. 444 U. S. 374. STEVENS, J., filed a dissenting opinion, post, p. 444 U. S. 378. MARSHALL, J., took no part in the consideration or decision of the case.

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. Ibid. [Footnote 1] They also provide that

"[n]o member

Page 444 U. S. 350

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. 3515(3)(a)(2). [Footnote 2]

Page 444 U. S. 351

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. [Footnote 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. [Footnote 4] The court granted Glines' motion for

Page 444 U. S. 352

summary judgment and declared the regulations facially invalid. Glines v. Wade, 401 F.Supp. 127 (1975). [Footnote 5]

The Court of Appeals for the Ninth Circuit affirmed the finding of facial invalidity. Glines v. Wade, 586 F.2d 675 (1978). [Footnote 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. [Footnote 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

Page 444 U. S. 353

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, 424 U. S. 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 424 U. S. 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 424 U. S. 837-839. We therefore sustained the Army regulation. Id. at 424 U. S. 840. [Footnote 8] For the same reasons, we now uphold the Air Force regulations. [Footnote 9]

Page 444 U. S. 354

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, 416 U. S. 413 (1974). The military is, "by necessity, a specialized society separate from civilian society." Parker v. Levy,417 U. S. 733, 417 U. S. 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, 420 U. S. 757 (1975); see Department of Air Force v. Rose,425 U. S. 352, 425 U. S. 367-368 (1976).

"Speech that is protected in the civil population may . . . undermine the effectiveness of response to command.'" Parker v. Levy, supra, at 417 U. S. 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 417 U. S. 758. The rights of military men must yield somewhat "`to meet certain overriding demands of discipline and duty. . . .'" Id. at 417 U. S. 744, quoting Burns v. Wilson,346 U. S. 137, 346 U. S. 140 (1953) (plurality opinion). [Footnote 10] Speech likely to interfere with these vital prerequisites for military effectiveness therefore can be excluded from a military base. Spock,

Page 444 U. S. 355

424 U.S. at 424 U. S. 840; id. at 424 U. S. 841 (BURGER, C.J., concurring); id. at 424 U. S. 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). [Footnote 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.,

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