Application of 18 U.S.C. § 1382, proscribing the reentry onto a
military post of a person who has been removed therefrom or ordered
by an officer not to reenter,
held violative of First
Amendment rights as applied when petitioner, a civilian who had
previously been barred from the post, was arrested after reentry
while quietly distributing leaflets on a public street extensively
used by civilians as well as military personnel that runs through
Fort Sam Houston, an open military post.
Certiorari granted; 452 F.2d 80, reversed and remanded.
PER CURIAM.
Petitioner John Thomas Flower, a regional "Peace Education
Secretary" of the American Friends Service Committee and a
civilian, was arrested by military police while quietly
distributing leaflets on New Braunfels Avenue at a point within the
limits of Fort Sam Houston, San Antonio, Texas. In an ensuing
prosecution before the United States District Court for the Western
District of Texas on charges of violating 18 U.S.C. § 1382
("Whoever reenters or is found [within a military post] after
having been removed therefrom or ordered not to reenter by any
officer or person in command or charge thereof -- shall be fined
not more than $500 or imprisoned not more than six months, or
both"), it was established that petitioner had previously been
barred from the post by order of the deputy commander because of
alleged participation in an attempt to distribute "unauthorized"
leaflets. The District Court found that § 1382 "is a valid law,"
and was validly applied. I t sentenced petitioner to six months in
prison. A divided
Page 407 U. S. 198
panel of the Court of Appeals for the Fifth Circuit affirmed.
452 F.2d 80 (CA5 1972).
We reverse. Whatever power the authorities may have to restrict
general access to a military facility,
see Cafeteria &
Restaurant Workers v. McElroy, 367 U.
S. 886 (1961), here the fort commander chose not to
exclude the public from the street where petitioner was arrested.
As Judge Simpson, dissenting, noted below:
"There is no sentry post or guard at either entrance or anywhere
along the route. Traffic lows through the post on this and other
streets 24 hours a day. A traffic count conducted on New Braunfels
Avenue on January 22, 1968, by the Director of Transportation of
the city of San Antonio, shows a daily (24-hour) vehicular count of
15,110 south of Grayson Street (the place where the street enters
the post boundary) and 17,740 vehicles daily north of that point.
The street is an important traffic artery used freely by buses,
taxi cabs and other public transportation facilities, as well as by
private vehicles, and its sidewalks are used extensively at all
hours of the day by civilians, as well as by military personnel.
Fort Sam Houston was an open post; the street, New Braunfels
Avenue, was a completely open street."
452 F.2d at 90. Under such circumstances, the military has
abandoned any claim that it has special interests in who walks,
talks, or distributes leaflets on the avenue. The base commandant
can no more order petitioner off this public street because he was
distributing leaflets than could the city police order any
leafleteer off any public street.
Cf. Lovell v. City of
Griffin, 303 U. S. 444
(1938);
Schneider v. State, 308 U.
S. 147 (1939). "[S]treets are natural and proper places
for the dissemination of information and opinion," 308 U.S. at
308 U. S.
163.
"[O]ne who is rightfully on a street which the state has left
open to the public
Page 407 U. S. 199
carries with him there, as elsewhere, the constitutional right
to express his views in an orderly fashion."
Jamison v. Texas, 318 U. S. 413,
318 U. S. 416
(1943).
The First Amendment protects petitioner from the application of
§ 1382 under conditions like those of this case. Accordingly,
without need to set the matter for further argument, we grant the
petition for a writ of certiorari and reverse the conviction.
Reversed and remanded.
MR. JUSTICE BLACKMUN dissents, for he would grant the petition
for certiorari and hear argument on the merits.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,
dissenting.
The result, if not the reasoning, of the Court's impressionistic
summary reversal of the Court of Appeals in this case is clear:
without benefit of briefs or oral argument, the Court declares
unconstitutional this application of 18 U.S.C. § 1382, a statute
enacted to give commanders of military posts authority thought
necessary by Congress to exclude civilians from the post area after
proper notice.
Because the post commander of Fort Sam Houston may have
permitted civilian vehicular and pedestrian traffic on New
Braunfels Avenue within the limits of Fort Sam Houston,
* the Court holds
that he has "abandoned"
Page 407 U. S. 200
any claim of special interest in who walks, talks, or
distributes leaflets on the avenue. Obviously the Court cannot be
referring to the subjective intent of the base commander, since he
gave petitioner due notice of his debarment from the base, and the
bringing of this prosecution evinces a rather strong interest on
the part of the commander in petitioner's "leafleting" activities.
If the Court means to say that, once any portion of a military base
is opened up to unregulated vehicular traffic, it automatically
follows that such portion of the base acquires the status of a
public square in a city or town, the mere statement of that
proposition -- which is all that is contained in the Court's
opinion -- is not self-demonstrating. Since the Court does not
hold, and it does not appear on this record that it could hold,
that petitioner Flower was treated differently from any other
"leafleteers," the Court's holding does not deal with any possible
denial of equal protection. The case thus concerns only the First
Amendment claim of leafleteers to go anywhere on a military base to
which civilian vehicles and pedestrians are granted free
access.
Adderley v. Florida, 385 U. S. 39
(1966), suggests that civilian authorities may draw reasonable
distinctions, based on the purpose for which public buildings and
grounds are used, in according the right to exercise First
Amendment freedoms in such buildings and on such grounds. Simply
because some activities and individuals are allowed on government
property does not require the abandonment of otherwise allowable
restrictions on its use. Indeed, it is generally recognized that
demonstrations on courthouse grounds can be prohibited in order to
protect the proper exercise of the judicial function.
See Cox
v. Louisiana, 379 U. S. 559,
379 U. S. 562
(1965).
See also 63 Stat. 617, § 6, 40 U.S.C. § 13k
(prohibiting any demonstrations on the grounds surrounding this
Court). Similarly, the unique requirements of military
Page 407 U. S. 201
morale and security may well necessitate control over certain
persons and activities on the base, even while normal traffic flow
through the area can be tolerated.
The Court's opinion leaves the base commander with a Hobson's
choice. He may close access to civilian traffic on New Braunfels
Avenue and other traffic arteries traversing the post, thereby
rendering the post once more subject to the authority that Congress
intended him to have, but also causing substantial inconvenience to
civilian residents of Bexar County who presently use these
arteries. Or he may continue to accommodate the convenience of the
residents, but only at the cost of surrendering the authority
Congress conferred upon him under 18 U.S.C. § 1382 to control
access to the post he commands.
An additional problem, to which the Court's opinion devotes no
attention whatever, is the question of whether this petitioner
should be free to challenge the validity of the post commander's
original debarment order in defending a criminal prosecution under
18 U.S.C. § 1382. The Solicitor General, in opposing the petition
for a writ of certiorari, contends that petitioner would have been
free to challenge the debarment order in a separate proceeding in
the United States District Court, relying on
Kiiskila v.
Nichols, 433 F.2d 745 (CA7 1970), and
Dash v. Commanding
General, 429 F.2d 427 (CA4 1970). The Court, by determining
sub silentio that exhaustion of such remedies is not
required, substantially dilutes the effectiveness of the criminal
sanction that Congress deliberately placed behind a post
commander's order of debarment. It accomplishes this dilution in a
way that may not be at all necessary to the vindication of
petitioner's First Amendment rights. By requiring petitioner to
proceed in an orderly manner to first litigate any alleged
constitutional infirmity in the debarment order, the Court
Page 407 U. S. 202
could assure him a forum for the assertion of such claims while
preserving to the post commander the availability of a relatively
summary criminal sanction against one who violated a debarment
order whose validity has not been contested.
While full argument in this case on the merits might persuade me
that the Court's result was required by the Constitution, its
present opinion certainly has not done so. I therefore dissent from
the summary reversal.
* From a record consisting largely of rejected offers of proof,
the Court concludes that Fort Sam Houston was an "open" post. It
also concludes that New Braunfels Avenue, a traffic artery within
the post, was a "completely open" street, presumably more "open"
than the post as a whole. While I have difficulty at this stage of
the case in knowing how the Court reaches these factual
conclusions, or indeed what exactly the varying degrees of
"openness" are meant to connote, my disagreement with the Court's
summary reversal is not limited to this aspect of the case.