Petitioner
Commander Greer, Fort Dix Military Reservation
Respondents
Benjamin Spock, M.D., Julius Hobson, Linda Jenness, Andrew Pulley, et al.
Petitioner's Claim
That the Court should overturn two lower courts' rulings, which had forbiddenhim to interfere with candidates of the People's Party and the Socialist Workers Party as they distributed literature and held political meetings in areas of Fort Dix that were open to the public.
Chief Lawyer for Petitioner
Robert H. Bork, U.S. Solicitor General
Chief Lawyer for Respondents
David Kairys
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, Potter Stewart (writing for the Court), Byron R. White
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, (John Paul Stevens did not participate)
Place
Washington, D.C.
Date of Decision
24 March 1976
Decision
The lower courts' injunctions were reversed, so that Commander Greer was freeto ban pamphleteering and political meetings from the base if he so chose. He was not allowed to discriminate among candidates based on their political views, but he was permitted to ban some candidates if he thought they might threaten military discipline.
Significance
In this ruling, the Court promoted the notion that the First Amendment does not apply to areas that are not "public forums." The case greatly limited thepolitical freedom of military personnel, while certifying the power of military officers to regulate the bases they command.
In 1972, U.S. involvement in the Vietnam War was still in full swing. Political protestors of all types attempted to mobilize public opinion against the war. One of the best-known opponents of the war was Benjamin Spock, M.D., whose book on baby and child care had helped to raise a generation.
Spock had become so deeply opposed to the war that he was running for president on a protest ticket sponsored by the People's Party, along with vice-presidential candidate Julius Hobson. The Socialist Workers Party, a small but very visible left-wing group, was also running a national ticket with an antiwartheme, offering Linda Jenness for president and Andrew Pulley for vice president.
Spock, Hobson, Jenness, and Pulley did not want to preach to just the converted, they wanted their message of peace to reach the very men who were being trained to fight in Vietnam. So on 9 September 1972, they wrote a joint letterto Major General Bert A. David, then commanding officer of Fort Dix, tellinghim that they were planning to come onto the base on 23 September to hand out campaign literature and hold a meeting to discuss election issues.
Fort Dix was a base devoted primarily to basic training for newly inducted army personnel. However, many areas of the base were open to the public, and civilians came onto the base at all hours. The base also housed the husbands and wives of soldiers and other army staff. The four antiwar activists wanted to reach this community.
A Military Mission
On 18 September, the candidates' request was denied. General David wrote a letter explaining his reasoning:
Besides the possible disruptive effect, Dix had another reason for refusing to allow the People's Party or the Socialist Workers Party onto the base:
A Long Court Battle
Spock and his companions did not take this refusal lying down. On 29 September 1972, they went to court for the right to engage in political activity on the base. They asked the court to enjoin the commander from interfering with their campaign. The district court did not agree, but the court of appeals did. That court issued an injunction, which allowed Spock to conduct a campaignrally at a Fort Dix parking lot on 4 November 1972. Later court decisions seemed to further affirm the public's right to make political speeches or to distribute leaflets in areas of the base open to the public.
The various commanders of Fort Dix were also unwilling to give in. They too appealed, and the case eventually went to the Supreme Court. There, the Courttook the side of the commanders, affirming their right to decide what kind ofpolitical activity took place on their base.
To decide what kind of political activity can happen on a base, the Court hadto define what kind of place a base was. If it was an ordinary public place,political activity there would be protected by the First Amendment, but as Justice Stewart wrote in the Court's majority opinion, the Court did not consider Fort Dix a public place:
Discrimination or Not?
The Court had approved the regulations that gave the commander the right to exclude civilians from the base. In the majority's view, the commander had acted fairly. He had said that no political candidate could speak or hold a meeting on the base. In the Court's view, that was fair and therefore, constitutional.
Justice Powell added that the Fort Dix regulations did allow "conventional political campaign literature." It might seem that to allow Democrats and Republicans to give out literature, while forbidding such freedom to the People'sParty and the Socialist Workers Party, would be a kind of discrimination against certain types of speech, but Powell said that because of the special nature of the military, the Constitution did allow a base commander to exercise his judgment in that way. Although a commander could not "prevent distributionof a publication simply because he does not like its contents" or because itwas "critical--even unfairly critical--of government policies or officials,"he could prevent distribution of literature that he perceived "to be a cleardanger to the loyalty, discipline, or morale of troops on the base under hiscommand."
A Dissenting View
Justices Brennan and Marshall completely disagreed with the majority opinion.In their view, much of Fort Dix was a public place. Civilians came onto thebase at all hours of the day and night, eating and talking freely with the recruits. Access to the base was so easy that there had been problems with muggings and prostitution. Moreover, said the dissenters, there was no basis forbelieving that distributing leaflets or having a meeting would impair the government's ability to train recruits or to maintain a national defense. Additonally, the fact that all types of political rallies had been excluded was noexcuse. "An evenhanded exclusion of all public expression would no more passmuster than an evenhanded exclusion of all Roman Catholics," wrote Justice Brennan.
In the dissenters' view, the only thing that could justify the suppression offree speech on Fort Dix was the threat of a clear and present danger resulting from that speech. The dissenting justices did not see how such danger could result from peaceful leafleting or a campaign rally.
The case of Spock v. Greer has had severe consequences for the kinds of speech allowed or not allowed in military settings. The Court relied on this case to uphold Air Force, Navy, and Marine Corps regulations requiring service members to get permission from their commanders before they themselves could circulate petitions on their bases. Greer has also been used to define other arenas as "non-public" places where it is therefore permissible torestrict speech.
Related Cases
Commander Greer, Fort Dix Military Reservation
Respondents
Benjamin Spock, M.D., Julius Hobson, Linda Jenness, Andrew Pulley, et al.
Petitioner's Claim
That the Court should overturn two lower courts' rulings, which had forbiddenhim to interfere with candidates of the People's Party and the Socialist Workers Party as they distributed literature and held political meetings in areas of Fort Dix that were open to the public.
Chief Lawyer for Petitioner
Robert H. Bork, U.S. Solicitor General
Chief Lawyer for Respondents
David Kairys
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, Potter Stewart (writing for the Court), Byron R. White
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, (John Paul Stevens did not participate)
Place
Washington, D.C.
Date of Decision
24 March 1976
Decision
The lower courts' injunctions were reversed, so that Commander Greer was freeto ban pamphleteering and political meetings from the base if he so chose. He was not allowed to discriminate among candidates based on their political views, but he was permitted to ban some candidates if he thought they might threaten military discipline.
Significance
In this ruling, the Court promoted the notion that the First Amendment does not apply to areas that are not "public forums." The case greatly limited thepolitical freedom of military personnel, while certifying the power of military officers to regulate the bases they command.
In 1972, U.S. involvement in the Vietnam War was still in full swing. Political protestors of all types attempted to mobilize public opinion against the war. One of the best-known opponents of the war was Benjamin Spock, M.D., whose book on baby and child care had helped to raise a generation.
Spock had become so deeply opposed to the war that he was running for president on a protest ticket sponsored by the People's Party, along with vice-presidential candidate Julius Hobson. The Socialist Workers Party, a small but very visible left-wing group, was also running a national ticket with an antiwartheme, offering Linda Jenness for president and Andrew Pulley for vice president.
Spock, Hobson, Jenness, and Pulley did not want to preach to just the converted, they wanted their message of peace to reach the very men who were being trained to fight in Vietnam. So on 9 September 1972, they wrote a joint letterto Major General Bert A. David, then commanding officer of Fort Dix, tellinghim that they were planning to come onto the base on 23 September to hand out campaign literature and hold a meeting to discuss election issues.
Fort Dix was a base devoted primarily to basic training for newly inducted army personnel. However, many areas of the base were open to the public, and civilians came onto the base at all hours. The base also housed the husbands and wives of soldiers and other army staff. The four antiwar activists wanted to reach this community.
A Military Mission
On 18 September, the candidates' request was denied. General David wrote a letter explaining his reasoning:
The mission assigned to me . . . isto administer basic combat training to approximately 15,000 men at any giventime. These men spend a period of eight weeks here during which they performtheir training on very vigorous schedules occupying virtually all of their time . . . Political campaigning on Fort Dix cannot help but interfere with our training and other military missions.
Besides the possible disruptive effect, Dix had another reason for refusing to allow the People's Party or the Socialist Workers Party onto the base:
To decide otherwise could also give the appearance that you or your campaign is supported by me in my official capacity. I feel that I am prohibited from doing this for any candidate for public office.
A Long Court Battle
Spock and his companions did not take this refusal lying down. On 29 September 1972, they went to court for the right to engage in political activity on the base. They asked the court to enjoin the commander from interfering with their campaign. The district court did not agree, but the court of appeals did. That court issued an injunction, which allowed Spock to conduct a campaignrally at a Fort Dix parking lot on 4 November 1972. Later court decisions seemed to further affirm the public's right to make political speeches or to distribute leaflets in areas of the base open to the public.
The various commanders of Fort Dix were also unwilling to give in. They too appealed, and the case eventually went to the Supreme Court. There, the Courttook the side of the commanders, affirming their right to decide what kind ofpolitical activity took place on their base.
To decide what kind of political activity can happen on a base, the Court hadto define what kind of place a base was. If it was an ordinary public place,political activity there would be protected by the First Amendment, but as Justice Stewart wrote in the Court's majority opinion, the Court did not consider Fort Dix a public place:
Since under the Constitution it is the basic function of a military installation like Fort Dix to train soldiers,not to provide a public forum, and since, as a necessary concomitant to thisbasic function, a commanding officer has the historically unquestioned powerto exclude civilians from the area of his command, any notion that federal military installations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is false, and therefore respondents had no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix.
Discrimination or Not?
The Court had approved the regulations that gave the commander the right to exclude civilians from the base. In the majority's view, the commander had acted fairly. He had said that no political candidate could speak or hold a meeting on the base. In the Court's view, that was fair and therefore, constitutional.
Justice Powell added that the Fort Dix regulations did allow "conventional political campaign literature." It might seem that to allow Democrats and Republicans to give out literature, while forbidding such freedom to the People'sParty and the Socialist Workers Party, would be a kind of discrimination against certain types of speech, but Powell said that because of the special nature of the military, the Constitution did allow a base commander to exercise his judgment in that way. Although a commander could not "prevent distributionof a publication simply because he does not like its contents" or because itwas "critical--even unfairly critical--of government policies or officials,"he could prevent distribution of literature that he perceived "to be a cleardanger to the loyalty, discipline, or morale of troops on the base under hiscommand."
A Dissenting View
Justices Brennan and Marshall completely disagreed with the majority opinion.In their view, much of Fort Dix was a public place. Civilians came onto thebase at all hours of the day and night, eating and talking freely with the recruits. Access to the base was so easy that there had been problems with muggings and prostitution. Moreover, said the dissenters, there was no basis forbelieving that distributing leaflets or having a meeting would impair the government's ability to train recruits or to maintain a national defense. Additonally, the fact that all types of political rallies had been excluded was noexcuse. "An evenhanded exclusion of all public expression would no more passmuster than an evenhanded exclusion of all Roman Catholics," wrote Justice Brennan.
In the dissenters' view, the only thing that could justify the suppression offree speech on Fort Dix was the threat of a clear and present danger resulting from that speech. The dissenting justices did not see how such danger could result from peaceful leafleting or a campaign rally.
The case of Spock v. Greer has had severe consequences for the kinds of speech allowed or not allowed in military settings. The Court relied on this case to uphold Air Force, Navy, and Marine Corps regulations requiring service members to get permission from their commanders before they themselves could circulate petitions on their bases. Greer has also been used to define other arenas as "non-public" places where it is therefore permissible torestrict speech.
Related Cases
- Rescue Army v. Municipal Court of City of Los Angeles, 331 U.S. 549 (1947).
- United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).
- Cafeteria Workers v. McElroy, 367 U.S. 886 (1961).
- Adderley v. Florida, 385 U.S. 39 (1966).
- Flower v. United States, 407 U.S. 197 (1972).
- Houchins v. KQED, 438 U.S. 1 (1978).
Further Readings
- "High Court Limits Military Rights."New York Times, 25 March 1976, p. 29.
- Werhan, Keither. "The Supreme Court's public forum doctrine and the return of formalism." Cardozo Law Review, Vol. 7, no. 2, winter 1986, pp. 335-437.
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