Ethredge v. Hail , 56 F.3d 1324 ( 1995 )


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  •                     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.