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BROWN v. GLINES

decided: January 21, 1980.

BROWN, SECRETARY OF DEFENSE, ET AL
v.
GLINES



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Powell, J., delivered the opinion of the Court, in which Burger, C. J., White, Blackmun, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, post, p. 361. Stewart, J., filed a dissenting opinion in which Brennan, J., joined, post, p. 374. Stevens, J., filed a dissenting opinion, post, p. 378. Marshall, J., took no part in the consideration or decision of the case.

Author: Powell

[ 444 U.S. Page 349]

 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.*fn1 They also provide that "[no] member

[ 444 U.S. Page 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., at 35-15 (3)(a)(2).*fn2

[ 444 U.S. Page 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.*fn3 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.*fn4 The court granted Glines' motion for

[ 444 U.S. Page 352]

     summary judgment and declared the regulations facially invalid. Glines v. Wade, 401 F.Supp. 127 (1975).*fn5

The Court of Appeals for the Ninth Circuit affirmed the finding of facial invalidity. Glines v. Wade, 586 F.2d 675 (1978).*fn6 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.*fn7 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

[ 444 U.S. Page 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, 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 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 837-839. We therefore sustained the Army regulation. Id., at 840.*fn8 For the same reasons, we now uphold the Air Force regulations.*fn9

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

"'Speech that is protected in the civil population may . . . undermine the effectiveness of response to command.'" Parker v. Levy, supra, at 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 758. The rights of military men must yield somewhat "'to meet certain overriding demands of discipline and duty. . . .'" Id., at 744, quoting Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion).*fn10 Speech likely to interfere with these vital prerequisites for military effectiveness therefore can be excluded from a military base. Spock, 424 U.S.,

[ 444 U.S. Page 355]

     at 840; id., at 841 (BURGER, C. J., concurring); id., at 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).*fn11 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., at para. II. Thus, the regulations in both services prevent commanders from interfering with the circulation of any materials other than those posing a clear danger to military loyalty, discipline, or morale. Air Force Reg. 35-15 (3)(a)(2) (1970); Army Reg. 210-10, para. 5-5 (c) (1970); see DOD Dir. 1325.6, para. III (A)(1) (1969). Indeed, the Air Force regulations specifically prevent commanders from halting the distribution of materials that merely criticize the Government or its policies. Air Force Reg. 35-15 (3)(a)(4) (1970); see DOD Dir. 1325.6, para. III (A)(3) (1969). Under the regulations, Air Force commanders have no authority whatever to prohibit the distribution of magazines and newspapers through regular outlets such as the post exchange newsstands. Air Force Reg. 35-15 (3)(a)(1) (1970); see DOD Dir. 1325.6, para. III (A)(1) (1969).*fn12 Nor may they interfere with the "[distribution] of publications and other materials through

[ 444 U.S. Page 356]

     the United States mail. . . ." Air Force Reg. 35-15 (3)(a)(1) (1970). The Air Force regulations also require any commander who prevents the circulation of materials within his base to notify his superiors of that decision. Air Force Reg. 35-15 (3)(a)(2) (1970); see Army Reg. 210-10, para. 5-5 (d) (1970). Spock held that such limited restrictions on speech within a military base do not violate the First Amendment. 424 U.S., at 840; id., at 848 (POWELL, J., concurring).

Spock also established that a regulation requiring members of the military services to secure command approval before circulating written materials within a military base is not invalid on its face. Id., at 840.*fn13 Without the opportunity to review materials before they are dispersed throughout his base, a military commander could not avert possible disruptions among his troops. Since a 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.*fn14 "[The] accuracy and effect of a superior's command

[ 444 U.S. Page 357]

     depends critically upon the specific and customary reliability of [his] subordinates, just as the instinctive obedience of subordinates depends upon the unquestioned specific and customary reliability of the superior." Department of Air Force v. Rose, 425 U.S., at 368. Because the right to command and the duty to obey ordinarily must go unquestioned, this Court long ago recognized that the military must possess substantial discretion over its internal discipline. See, e. g., Schlesinger v. Councilman, 420 U.S. 738 (1975); Parker v. Levy, 417 U.S. 733 (1974); Burns v. Wilson, 346 U.S. 137 (1953); Orloff v. Willoughby, 345 U.S. 83 (1953); In re Grimley, 137 U.S. 147 (1890). In Spock, we found no facial constitutional infirmity in regulations that allow a commander to determine before distribution whether particular materials pose a clear danger to the good order of his troops.*fn15

[ 444 U.S. Page 358]

     The Air Force regulations at issue here are identical in purpose and effect to the regulation that we upheld in Spock. We therefore conclude that they do not violate the First Amendment.

III

The only novel question in this case is whether 10 U. S. C. § 1034 bars military regulations that require prior command approval for the circulation within a military base of petitions to Members of Congress. The statute says that "[no] person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States." (Emphasis added.) Glines contends that this law protects the circulation of his collective petitions as well as the forwarding of individual communications. We find his contention unpersuasive.

Section 1034 was introduced as a floor amendment to the Universal Military Training and Service Act of 1951 in response to a specific and limited problem. While Congress was debating the Act, Congressman Byrnes of Wisconsin learned that a young constituent seeking a hardship discharge from the Navy "had been told by his commanding officer . . . that a direct communication with his Congressman was prohibited and [that] it would make him subject to court-martial." 97 Cong. Rec. 3776 (1951). When the Congressman made inquiry about the regulations imposing this restriction, the Secretary of the Navy informed him that they required "any letter from ...


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