United States v. Corrigan

[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,
versus
ROBERT M. HOLSTEIN, JR.,
Defendant-Appellant.
No. 96-8588
D.C. Docket No. 4:96-CR-00009-001(JRE)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND G. LAPORT,
Defendant-Appellant.
No. 96-8589
D.C. Docket No. 4:96-CR-00010-001(JRE)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOANNE LINGLE,
Defendant-Appellant.
No. 96-8590
D.C. Docket No. 4:96-CR-00011-001(JRE)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN X. LINNEHAN,
Defendant-Appellant.
No. 96-8591
D.C. Docket No. 4:96-CR-00013-001(JRE)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLAIRE C. O’MARA,
Defendant-Appellant.
No. 96-8592
D.C. Docket No. 4:96-CR-00015-001(JRE)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH A. ZITO,
Defendant-Appellant.
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
trespass.
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.
10