Ethredge v. Hail ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-8638.
Jesse ETHREDGE, Plaintiff-Appellant,
v.
Robert HAIL, Deputy Base Commander of Robins Air Force Base, in
His Official Capacity as an Officer and Agent of the United States
Air Force, as Agency of the United States of America, Defendant-
Appellee.
June 29, 1995.
Appeal from the United States District Court for the Middle
District of Georgia. (No. 92-CV-187-2-MAC (DF)), Duross
Fitzpatrick, Chief Judge.
Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and YOUNG*, Senior District Judge.
HATCHETT, Circuit Judge:
In this case, we affirm the district court's ruling that an
administrative order that bars from Robins Air Force Base "bumper
stickers or other similar paraphernalia" that "embarrass or
disparage" the President of the United States does not violate the
First Amendment.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, Jesse Ethredge, has worked for the United States
Air Force as a civilian aircraft mechanic for over twenty-five
years. Ethredge drives to work on Robins Air Force Base ("RAFB" or
"the base") four to six times a week, and, until October 1991, used
his truck for transportation to and from the base.
The principal military organization at RAFB, the Warner Robins
*
Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
Air Logistics Center, provides maintenance and repair services to
combat and transport aircraft, and acquires and manages items
essential to the Air Force's operations. Other organizations on
the base provide combat support, including refueling and
communications services. Because access to the base is highly
restricted, the Air Force considers RAFB a "closed base."
In 1984, Ethredge affixed stickers to the rear window of his
truck top to read "HELL WITH REAGAN." Ethredge displayed this
message to protest the Reagan administration's policies concerning
unions and the civil service retirement system. Ethredge kept this
sign on his truck until the end of President Reagan's tenure.
Although a RAFB employee complained about the sign, officials took
no action to require Ethredge to remove it.
After President Bush assumed office, Ethredge changed the
stickers on his truck to state "READ MY LIPS HELL WITH GEO BUSH"
and "FORGIVE BUSH NOT EGYPT HE LIED." Ethredge displayed these
messages to protest President Bush's agreement to raise taxes,
despite a campaign pledge to the contrary, and the decision to
forgive certain debts Egypt owed to the United States.
Military personnel filed complaints about this sign. In
addition, Colonel Robert M. Hail, deputy base commander at the
time, received anonymous telephone calls from persons stating that
if they saw the sign again, they would break the windows of
Ethredge's truck. In 1991, Major General Richard F. Gillis, the
installation commander of RAFB, directed Colonel Hail to order
Ethredge to remove the sign from his truck while on the base. On
October 17, 1991, Ethredge received a written order from Colonel
Hail, which stated, in relevant part:
1. As Robins Air Force Base (AFB) is a military installation,
bumper stickers or other similar paraphernalia which embarrass
or disparage the Commander in Chief are inappropriate as they
have a negative impact on the good order and discipline of the
service members stationed at Robins AFB....
2. You are hereby ordered, while at Robins AFB, to remove all
bumper stickers that contain disparaging or embarrassing
comments about the Commander in Chief of the United States of
America. You have 12 hours to accomplish this order. Failure
to comply with this lawful order will result in administrative
action.
Instead of removing the stickers, Ethredge drove another
vehicle to work. He then instituted this lawsuit, alleging that
the administrative order violates the First Amendment. Ethredge
sought preliminary and permanent injunctions prohibiting
enforcement of the order, and a declaratory judgment declaring it
unconstitutional.
Following a hearing, the district court denied Ethredge's
motion for a preliminary injunction, finding that he had not
established a clear likelihood of success on the merits of his
claim. Ethredge v. Hail, 795 F.Supp. 1152, 1159 (M.D.Ga.1992)
(Ethredge I). Specifically, the court held that the order was
viewpoint neutral and reasonable, and that Ethredge's sign
constituted a clear danger to the discipline, loyalty, and morale
of Air Force personnel on RAFB. Ethredge I at 1156-59. Ethredge
took an interlocutory appeal of the district court's determination.
After Ethredge instituted that appeal, however, President
Clinton commenced his term in office and this court concluded that
the change in the office of President rendered Ethredge's appeal
moot:
[B]y its terms the motion for preliminary injunction seeks
relief solely as to Ethredge's anti-Bush stickers. But
former-President Bush is no longer in office. Consequently,
the administrative order no longer forbids Ethredge's
anti-Bush stickers. It does not appear that Ethredge is being
precluded from displaying his anti-Bush stickers
notwithstanding the order's inapplicability to them. Thus, no
live controversy remains with respect to Ethredge's request
for preliminary injunctive relief.
Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir.1993) (Ethredge II
). This court also determined that the issues raised in Ethredge's
requests for a permanent injunction and declaratory judgment "may
remain live notwithstanding President Bush's departure from the
White House." Ethredge II at 1176. Thus, this court remanded the
case to the district court. Ethredge II at 1177.
In April 1993, following oral argument in Ethredge II but
before this court had rendered its decision, Ethredge removed the
stickers stating "FORGIVE BUSH NOT EGYPT HE LIED" from the rear
window of his truck and replaced them with stickers reading "HELL
WITH CLINTON AND RUSSIAN AID." On August 24, 1993, RAFB's legal
counsel informed Ethredge's lawyer that the October 17, 1991, order
"would apply to the latest sign." Consequently, after remand,
Ethredge amended his complaint to include his sign concerning
President Clinton.
Following discovery, the parties filed cross-motions for
summary judgment. The district court granted summary judgment for
the appellee "[f]or [the] reasons stated" in Ethredge I. This
appeal followed.
CONTENTIONS
Ethredge contends that the administrative order barring signs
that "embarrass or disparage" the President is not viewpoint
neutral, but, rather, impermissibly favors the viewpoint of
supporters of the President. He also argues that military
officials have no right to exclude his sign from RAFB because they
have not demonstrated that the sign poses a clear and present
danger to military loyalty, morale, or order. Finally, Ethredge
asserts that the order prohibiting his sign is unreasonable and
overly broad.
The government responds that the administrative order does not
proscribe any sign because of the political view expressed; thus,
the order is not unconstitutionally viewpoint-based. The
government also argues that the order constitutes a reasonable
exercise of the authority of military officials to exclude on-base
speech that interferes with military effectiveness.
DISCUSSION
We review the district court's ruling on the
constitutionality of the RAFB administrative order under the de
novo standard. See Redner v. Dean, 29 F.3d 1495, 1499 (11th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1697, 131 L.Ed.2d
560 (1995).
The extent to which the government can restrict speech
"depends on the nature of the relevant forum." Cornelius v. NAACP
Legal Defense & Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439,
3448, 87 L.Ed.2d 567 (1985). The Supreme Court has adopted a
"forum analysis" for determining First Amendment claims involving
governmental property. Cornelius, 473 U.S. at 800, 105 S.Ct. at
3448. The Court's framework divides governmental property into
three categories: traditional public forums, created public
forums, and nonpublic forums. See, e.g., Perry Educ. Assoc. v.
Perry Local Educators' Assoc., 460 U.S. 37, 45-46, 103 S.Ct. 948,
955, 74 L.Ed.2d 794 (1983). No question exists that RAFB
constitutes a nonpublic forum. See, e.g., 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 ... historically and constitutionally false."). "Once
speech enters the realm of nonpublic forums the government's power
over its regulation increases dramatically." M.N.C. of Hinesville
v. United States Dep't of Defense, 791 F.2d 1466, 1474 (11th
Cir.1986). Accordingly, military officials at RAFB may impose a
regulation on speech so long as the restriction "is reasonable and
not an effort to suppress expression merely because public
officials oppose the speaker's view." Perry, 460 U.S. at 46, 103
S.Ct. at 955.1
Ethredge first argues that the administrative order
impermissibly regulates the display of constitutionally protected
speech based on the viewpoint of the speaker. Under the
regulation, officials bar signs that "embarrass or disparage" the
President, but permit signs that praise the President or embarrass
1
Ethredge's status as a civilian worker on the base does not
affect our analysis. A military commander's authority to bar
persons or speech from a base extends to civilians. See, e.g.,
Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886,
892-94, 81 S.Ct. 1743, 1747-48, 6 L.Ed.2d 1230 (1961); Greer,
424 U.S. at 838, 96 S.Ct. at 1217.
or disparage the President's political opponents. Therefore,
Ethredge asserts, the order treats speakers differently depending
upon whether they praise or attack the President. The officials
grant supporters of the President free reign to support the
President and disparage his opponents, while it mandates that
political opponents of the President express criticism of the
Commander in Chief in a sanitized (i.e., not embarrassing or
disparaging) manner. See R.A.V. v. City of St. Paul, --- U.S. ----
, ----, 112 S.Ct. 2538, 254, 120 L.Ed.2d 305 (1992) (the government
"has no ... authority to license one side of a debate to fight
freestyle, while requiring the other to follow Marquis of
Queensbury Rules").
Ethredge is correct in asserting that "[t]he prohibition
against viewpoint discrimination is firmly embedded in first
amendment analysis." Searcey v. Harris, 888 F.2d 1314, 1325 (11th
Cir.1989). But, his contention that the order discriminates
against speakers depending upon their viewpoint is incorrect.
First, as Ethredge acknowledges, the order does not prohibit
criticism of the President. Military officials at RAFB permit
vehicles on the base that have bumper stickers clearly critical of
the President.2 Second, and even more fatal to Ethredge's claim,
the order in no way limits the application of the restriction to
opponents of the President. The order simply prohibits "bumper
stickers or other paraphernalia which embarrass or disparage" the
Commander in Chief. Thus, the order applies to supporters of the
2
One such bumper sticker reads, "Bill Clinton has what it
takes to take what you have." Another states, "Defeat Clinton in
'96."
President as well. Indeed, we can imagine signs or messages that,
although intended to be supportive of the President, may (due to a
profane nature, for example) embarrass or disparage the President.
Such signs would also be excluded from RAFB under the
administrative order. Therefore, we reject Ethredge's assertion
that the order treats speakers differently depending upon whether
they express a view supporting or opposing the President.
Ethredge next argues, relying on Priest v. Secretary of Navy,
570 F.2d 1013, 1017 (D.C.Cir.1977), that military officials had to
demonstrate that his sign "tended to interfere with responsiveness
to command or to present a clear danger to military loyalty,
discipline, or morale" before they could permissibly issue the
administrative order.
Ethredge's reliance on Priest is misplaced. The court in
Priest found that "[t]he government does not have the burden of
showing a causal relationship between [the banned activity] and
specific examples of weakened loyalty, discipline or morale...."
Priest, 570 F.2d at 1018. In fact, Priest merely approved a
military judge's instruction that required the court-martial to
find that the defendant's publications "tended to interfere with
responsiveness to command or to present a clear danger to military
loyalty, discipline, or morale" in order to sustain his criminal
conviction under the Uniform Code of Military Justice (UCMJ).
Priest, 570 F.2d at 1017.
Contrary to Ethredge's assertion, military officials need not
demonstrate actual harm before implementing a regulation
restricting speech. See Greer, 424 U.S. at 840, 96 S.Ct. at 1218("There is nothing in the Constitution that 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."). See also Cornelius, 473 U.S. at 810, 105
S.Ct. at 3453 ("[T]he government need not wait until havoc is
wreaked to restrict access to a nonpublic forum."). Thus,
officials at RAFB had a right to promulgate the order in response
to their evaluation that Ethredge's sign constituted a clear danger
to military order and morale. The government submitted evidence
that the installation commanders made such an evaluation.
Finally, Ethredge urges that the administrative order is
unreasonable and overly broad. The reasonableness of a restriction
on access to a nonpublic forum "must be assessed in the light of
the purpose of the forum and all the surrounding circumstances."
Cornelius, 473 U.S. at 809, 105 S.Ct. at 3453. Therefore, we must
remain mindful that "[t]he military need not encourage debate or
tolerate protest to the extent that such tolerance is required of
the civilian state by the First Amendment; to accomplish its
mission the military must foster instinctive obedience, unity,
commitment, and esprit de corps." Goldman, 475 U.S. at 507, 106
S.Ct. at 1313. Moreover, in assessing the reasonableness of the
restriction, no requirement exists "that the restriction be
narrowly tailored." Cornelius, 473 U.S. at 809, 105 S.Ct. at 3452.
In fact, the restriction "need not be the most reasonable or the
only reasonable limitation." Cornelius, 473 U.S. at 808, 105 S.Ct.
at 3452. We reject Ethredge's contention that the administrative
order is unreasonable. First, the order does not prohibit robust
criticism of the President; instead, it bars only those messages
that "embarrass or disparage" the Commander in Chief. Second,
under the UCMJ the military can impose discipline against its
members for displaying similar signs. See 10 U.S.C. § 888 ("Any
commissioned officer who uses contemptuous words against the
President ... shall be punished as a court-martial may direct.");
10 U.S.C. § 889 (any military member "who behaves with disrespect
toward his superior commissioned officer shall be punished as a
court-martial may direct"). Finally, Major General Gillis and his
successor as installation commander, Major General William P.
Hallin, stated in affidavits that they believed that Ethredge's
sign would undermine military order, discipline, and
responsiveness.3 We must give great deference to the judgment of
these officials:
[C]ourts must give great deference to the professional
judgment of military authorities concerning the relative
importance of a particular military interest. Not only are
courts ill-equipped to determine the impact upon discipline
that any particular intrusion upon military authority might
have, but the military authorities have been charged by the
Executive and Legislative Branches with carrying out our
Nation's military policy.
Goldman v. Weinberger, 475 U.S. 503, 507-08, 106 S.Ct. 1310, 1313,
89 L.Ed.2d 478 (1986) (citations and internal quotations omitted).
In short, military officials at RAFB had sufficient justification
to enact the administrative order, and the order constitutes a
3
We note that in making this determination, the installation
commanders possessed evidence that Ethredge's sign had caused
some disruption on the base. The record shows that service
members complained about Ethredge's anti-Bush sign, finding it
offensive and damaging to morale. Also, anonymous telephone
callers contacted Colonel Hail and communicated that they
intended to break the windows of Ethredge's truck.
reasonable exercise of their authority.4
Ethredge's argument that the order is overly broad fails under
the principles expressed in Parker v. Levy, 417 U.S. 733, 94 S.Ct.
2547, 41 L.Ed.2d 439 (1974). In Parker, the Supreme Court rejected
overbreadth and vagueness challenges to Article 133 of the UCMJ, 10
U.S.C. § 933, providing punishment for "conduct unbecoming an
officer and a gentleman," and Article 134 of the UCMJ, 10 U.S.C. §
934, proscribing, among other things, "all disorders and neglects
to the prejudice of good order and discipline in the armed forces."
Parker, 417 U.S. at 757, 94 S.Ct. at 2562. The administrative
order at issue here is no more vulnerable to an overbreadth
challenge than were Articles 133 and 134. The challenged order
calls for military authorities to make a judgment concerning
whether particular signs "embarrass or disparge" the President, the
head of the chain of command. As with Articles 133 and 134,
"[t]here is a wide range of ... conduct ... to which [the
challenged order] may be applied without infringement of the First
Amendment." Parker, 417 U.S. at 760, 94 S.Ct. at 2564. Thus, the
fact that "there may lurk at the fringes ... some possibility that
conduct which would be ultimately held to be protected by the First
Amendment could be included within [the order's] prohibition" is
"insufficient to invalidate" the order. Parker, 417 U.S. at 760-
61, 94 S.Ct. at 2564.
In sum, "[t]he military establishment is subject to the
4
The fact that officials took no action regarding Ethredge's
"HELL WITH REAGAN" sign does not change our view. The evidence
shows that the installation commander during that period had no
knowledge of the existence of the sign.
control of the civilian commander in chief and the civilian
departmental heads under him, and its function is to carry out the
policies made by those civilian superiors." Parker, 417 U.S. at
751, 94 S.Ct. at 2559. We hold that the administrative order
constitutes a reasonable exercise of the authority that military
officials possess in determining how best to fulfill this function.
CONCLUSION
We hold that the administrative order barring from RAFB
"bumper stickers or other paraphernalia" which "embarrass or
disparage" the President is viewpoint neutral and reasonable.
Accordingly, the order does not violate the First Amendment.
Therefore, we affirm the judgment of the district court.
AFFIRMED.