*1 Invs., Inc., (6th 29 F.3d Hamilton
Cir.1994) (“[T]he mere fact that the arbi-
tration was conducted the NASD before by the
required association’s rules does not
make the case one that arises out of the laws.”).
federal securities ordered.
So
Larry BRYANT, Appellant W. GATES, Secretary M.
Robert of De-
fense, Department United States Defense, al., Appellees. et
Nos. 07-5180. Appeals, States Court of
District of Columbia Circuit.
Argued May 2008. July
Decided 2008. *3 cause and argued Katz L.
Jonathan for appellant. the briefs filed Lawrence, U.S. At- Assistant Craig R. appellees. the cause for torney, argued Jeffrey A. brief were him With Lyons, M. and Jane Attorney, Taylor, U.S. Attorney. Assistant BROWN, GINSBURG, Before: KAVANAUGH, Judges. Circuit *4 by filed Circuit the Court
Opinion for Judge GINSBURG. filed Circuit opinion
Concurring Judge KAVANAUGH.
GINSBURG, Judge: Circuit Bryant claims refusal Larry his adver- of Defense allow Department its Civilian published be tisements rights violated Newspapers Enterprise Consti- Amendment the First under The district States. of the tution summary judgment entered court We Bryant’s claims. on all judgment. affirm Baсkground
I. contributor would-be ais (CENs), Newspapers Enterprise Civilian pub by commercial “published which Depart with under contract” lishers or their sub Components Defense ment of DoD) (hereinafter commands ordinate military installations. distributed authorizing DoD’s sole accomplishment facilitate is “to CENs De mission.” or installation the command (DODI) Instruction Defense partment of (1997), avail 6.2.1.1.8, E2.1.2.1 §§ http://www.dtic.mil/whs/directives/ able ordinary an Like corres/pdf/512004p.pdf.* CEN many respects, a newspaper * tion, of one the command units, area under or an organiza- an or is a "unit A "command” most, (cid:127) all,
contain[s] if of the follow- Blow the Whistle on the Military’s ing elements to communicate with the Psychiatric Retaliation Against Whis- intended DoD readership: command, tleblowers! Military Department, and DoD news (cid:127) Resist the Drafty Government’s Spin! features; comments; commanders’ (cid:127) Blow the Whistle on Bush’s “Gulf of editor;
letters to the editorials; com- Persia” Resolution! mentaries; features; sports; entertain- (cid:127) Blow the Whistle Army-CIA on the items; morale, ment welfare, and recre- * McCarthy Sаga! ation announcements; news and ... and All public affairs officers installation and local community news responsible for the various CENs which announcements. submitted these advertisements Id. E2.1.2. This content come declined publish them, invoking within DoD or publisher from the 5120.4, of DODI provides: the DoD’s approval. Id. E2.1.2.1. The publications DoD publisher may [including also sell publish CENs] adver- shall not tising CEN, news, contain in a again subject campaign parti- ap- discussions, san proval cartoons, editorials, 4.11, §§ 4.16, DoD. Id. *5 6.2.1.1.5,E2.1.1, E2.1.2.1, dealing commentaries with political E4.1.7.1-4. campaigns, candidates, issues, or which
A former civilian editor in the Office of lobbying advocate elected officials on the Army Chief of Affairs, Public Bryant specific issues. DoD publications CE has, twenty over last or years, so shall not carry paid political advertise- submitted to dozens CENs numerous candidate, ments for a party, which ad- advertisements, letters and few of which particular vocate a position on a political See, have published. been e.g., Bryant v. issue, or which advocate lobbying еlect- Sec’y the Army, F.Supp. 576-77 ed officials on a specific (D.D.C.1994). issue. This This suit arises out of includes those advertisements advocat- Bryant’s having submitted seven self- ing position a on any proposed styled DoD “whistleblower solicitation adver- policy or policy under review. tisements” to two dozen CENs. gener- The import al of most of those advertisements Bryant claims 4.11 “is unconstitutional can be gleaned from their titles: on its face and applied as to paid [his] (cid:127) Advertisements, Blow the Whistle on Iraqnam’s Battle- violating rights his
of-Baghdad Cover-up! expression free and to freedom of the (cid:127) press” under the First Amendment. Blow Whistle on ALL Atrocities
Abu Ghraib! The Government moved to dismiss or (cid:127) Join the Against Revolt the “Feres summary judgment, and Bryant cross- * Doctrine”! moved for summary judgment. The dis- individual,” E2.1.9.1, DODI 5120.4 135, 146, an service.” 340 U.S. "installation” is a facility ship "DoD (1950). or L.Ed. 152 serves as the base for one or more com- * "Army-CIA McCarthy Saga” evidently in- mands,” §id. E2.1.9.3. captain volves named McCarthy John J. Jr. *The "Feres who, Doctrine” refers to Feres v. Bryant says, "found himself involuntari- States, in which the Supreme ly Court "con- trаnsferred duty to clandestine with a CIA- clude[d] that the Government is operation” not liable run toward the end the Vietnam under the Federal Tort Claims injuries Act for War to expendable pawn become “an in to servicemen injuries where the that, rogue arise out of activity day, to this eludes even or are in the activity course incident congressional oversight.” likely to deter not seem does mo- therefore the Government’s granted court trict any protected in engaging anyone denied summary judgment tion for vaguе- clear whether it is not speech, cross-motion. Bryant’s at all. Nat’l here applies ness doctrine Cf. Analysis II. Finley, Arts Endowment for 2168, 141 L.Ed.2d 569, 621, § 4.11 of contends Bryant appeal, On (“The provision terms of Amend First violates DODI they if appeared undeniably opaque, nar is not vague it is ment because scheme, regulatory criminal statute gov compelling ameet rowly tailored con- vagueness substantial they raise could “[R]eview[ing] interest. ernmental however, speak- unlikely, It is cerns. summary judg grant court’s district far too clear to stеer compelled will be ers evidence novo, viewing de ment context of in the area’ any ‘forbidden and draw [Bryant,] favorable most light not de- needWe grants.”). arts] [Federal accordingly,” inferences all reasonable ing however, because question, cide rea “no because judgment affirm we unconstitutionally vague. 4.11 is fa [Bryant’s] find could jury sonable Transit Metro. use of Wash. specifically objects vor.” Salazar (D.C.Cir.2005).* explains: He Auth., §in 4.11. “political” the term gov- of the CENs very essence “The Vagueness A. [and] ernmental, political, thus in- imper- itself, major government § 4.11 as a claims Therefore, Bryant stitution, political.” applied face and vague on missibly § 4.11 invokes the DoD when suggests, does advertisements *6 his, it such as advertising.” advertisements exclude ‘political’ “clearly prohibit[] is un- that a standard clear applying be must be must speech regulation A may discriminate and ordinary or undefined stated person “give enough to expressed. view of the to the basis upon opportunity a reasonable intelligence however, Govеrnment, with City agree v. We Grayned prohibited,” know what in the bar being vague, 108, far 104, 408 Rockford, if we as- Even “well-defined.” § 4.11 is (1972), avoid and to 2294, claiming that in correct Bryant discriminatory sume arbitrary and “foster[ing] in “political” publish CENs 1, everything Valeo, 424 U.S. Buckley application,” serves the publication the sense 612, L.Ed.2d 659 48, n. support, of mission omitted). DoD’s Our (1976) marks (quotation in appears term in which context when is elevated vagueness about concern specifi- relates it clear that makes § 4.11 because speech regulates the law matters policy and elections cally to expression protected to inhibit “operate § 4.11 refers officials: concern of the wider far to steer citizens inducing “candidates,” “parties,” “campaigns,” if the boundaries than zone unlawful officials,” “political elected “lobbying [of] Id. clearly marked.” areas were forbidden policy.” DODI omitted). issues,” “DoD and alterations (quotation Ass’n Commc’ns 4.11; Am. § see § hand, 4.11 does the other On Douds, else) (or anyone not threaten (in assessing whether (1950) L.Ed. speech, prohibited a sanction * not to warrant lacking in sufficiently merit challenges constitutional Bryant raises similar opinion. published 5120.4, they consideration are but of DODI sections to other vague, “particular
term is
upon
context is
his service during World War II and
all important”).
recovery
his
injuries
from the
he suffered
in the war.
FBI
advertisement solic-
argument, Bryant
Further
people
ited
working in one area of Govern-
suggests
applied
the DoD has not
reg
ment
another,
to work in
area;
related
ulation
a consistent
In
manner.
this
the article еntitled “Facing the Future”
vein,
points
he
to three instances in which
reported on
“challenges
how
in the field of
published
he claims CENs
“politically-re
give
combat
[the DoD] the opportunity to
4.11,
lated” material notwithstanding §
(1)
test
concepts,
new
specifically:
organizational
an advertisement
new
inviting
con-
cepts,
service
to an
training
members
event which
new
concepts
for
and new lo-
mer Senator Dole would be signing copies gistical concepts that help drive transfor-
memoir,
(2)
of his
Story,
One Soldier’s
an mation to the future.”
recruiting
advertisement
service members
sum,
In
the ban in
§
on “political”
(3)
to work
agents;
as FBI
an article
advertisements
is not unconstitutionally
“Facing
entitled
the Future: Terror War
vague on its
applied
face or as
Bryant’s
Promotes Transformation Concepts.” It is
ads.
FEC,
See McConnell v.
see,
easy
however,
that Bryant’s pro
these
only Bryant’s advertisements B. The Justification for and Tailoring of
“political”-
as that
term is used in
§ 4.11
Bryant’s
4.11.
advertisements addressed
4.11,
next
claims
“as
controversial, high-level matters of con
applied”
written and
advertisements,
to his
President,
cern to the
the Department of
narrowly
tailored to serve a compel
Defense, or the .Congress, such as the
ling governmental interest.**
gener
As a
operation of Abu
prison
Ghraib
in Iraq,
al principle, “the
extent which the
conscription,
Gov
impeachment
*7
ernment can
the
control
President
for
access
a
allegedly
[to
forum
lying about
it
why
owns or
the
depends
United States
on
controls]
invaded
the
Iraq. In
nature of
contrast,
is
the relevant
there
no reason to
forum.”
believe Sen
Cornelius v. NAACP
ator Dole’s
signing
Legal
book
political
Fund,
was a
&
Inc.,
Educ.
473 U.S.
Def.
event;
memoir,
published
788, 800,
nearly a
3439,
dec
105 S.Ct.
895
par
“limit[ed]
had
cause the
forum
public
in a
speech
on
Restrictions
‘appropri
to
[Campaign]
in the
ticipation
compel
a
necessary
achieve
be
must
[i.e.,
including
voluntary agencies
ate’
tailored
narrowly
interest
ling state
advocacy organ
political
‘legаl defense
ain
speech
on
Restrictions
end.
to that
agencies
requirefd]
...
izations,’] and
hand, are
forum,
other
on the
nonpublic
permission
to obtain
admission
seeking
test:
stringent
a much less
subject
officials,”
Campaign
local
federal and
light
[in
reasonable
be
only
must
they
790, 804, 105 S.Ct.
Cornelius,
at
not an
forum]
3439.
merely be
expression
suppress
effort
speak
oppose
public officials
cause
fo
relevant
identify the
We must
er’s view.
Because
classify it.
can
rum
we
before
the advertis
only Bryant seeks access
Bd.,
Armory
863
v. D.C.
Stewart
CEN,
treat
we
each
ing section
marks
(D.C.Cir.1988) (quotation
1013, 1016
CEN,
the whole
advertising section—not
Televi-
omitted);
Educ.
Ark.
citation
suggests
the Government
666, 677-
Forbes,
—as
U.S.
v.
523
sion Comm’n
801,
3439
105
Id. at
S.Ct.
forum.
relevant
(1998).
1633,
L.Ed.2d 875
140
79,
access
(“In
limited
in which
cases
if it “histori
public
A forum
ap
tailored
a more
“take[]
we
sought,”
free ex
devoted
been
cally has
aof
perimeters
ascertaining the
proach
views;
parks
streets
change
City
Shaker
forum”); see Lehman
Stewart, 863
examples.”
quintessential
298,
Heights,
U.S.
Televi
Educ.
1016;
Ark.
see also
F.2d at
(ad
(1974) (plurality)
L.Ed.2d
677, 118 S.Ct.
Comm’n,
siоn
buses,
plain
where
city
vertising spaces
was
traditional
if
forum
Even
a
1633.
ads,
rele
were
political
to run
tiff wanted
it
designate
government
open,
ly
Perry
Ass’n
fora);
Educ.
Perry
vant
“generally
making
by
forum
public
a
Ass’n,
46-
Educators’
Local
gen
use
expressive
“for
available”
class of
particular
aby
public
eral
mail
distribute
(where
wanted
plaintiff
university
“a state
example,
for
speakers”;
mail
teachers,
internal
school’s
to school
stu
registered
forum
public
a
created
forum).
was relevant
system
policy
a
by implementing
groups
dent
section
advertising
Bryant contends
‘gen
meeting facilities
made
expressly
by designation
forum
public
a
of CEN
at 678-
Id.
groups.”
to such
erally open’
forum,”
regulation
“limited
or a
omit
(quotation
S.Ct. 1633
strict
claims,
survive
must
which, he
Mo
v. Ctr.
Chapel
ted);
also Lamb’s
see
it is
says
The Government
scrutiny.
Dist., 508 U.S.
Sch.
Free
Union
riches
*8
Govern-
Because
forum.
nonpublic
(1993)
2141, 124
392, 113 S.Ct.
§ 4.11
to defend
attempt
does not
ment
forum when it
public
creates
(government
obvious
it is not
scrutiny, and
strict
against
public
“for indiscriminate
forum
designates
scrutiny,
such
survive
would
4.11
If,
purposes”).
communicative
use for
advertising section of
whether
question
only “se
permits
however,
government
forum
nonpublic
a
a
public
a CEN
speakers,”
individual
for
access
lective
dispositive.
potentially
forum, Ark.
nonpublic
a
creates
then it
determining
for
The “touchstone”
Comm’n,
at
523 U.S.
Television
Educ.
a
designated
has
the Government
whether
1633;
example, the
679-80, 118 S.Ct.
establishing
its “intent
public
charity
forum
drive
Campaign
Federal
Combined
Stewart, 863
maintaining” that forum.
be
public forum
nonpublic
a
was deemed
F.2d at 1016. As the Supremе Court
may
has
pose a danger or detriment
to DoD
clear,
made
government
“[t]he
does not
personnel
family members,
or their
or that
a designated
create
public forum by inac
with the
interfere^]
command or installa
tion
byor
permitting
discourse,
limited
missions,”
but
tion
or “presents]
danger
a
only by intentionally opening a nontradi
loyalty, discipline, or morale
personnel.”
public
tional
forum for public discourse.”
§ E4.1.7.1-4;
Id.
see also United States v.
Ark. Educ.
Comm’n,
Television
Albertini,
675, 684-86,
105 S.Ct.
at
(quotation
(1985)
(“A
ment.”
1016-17;
at
F.2d
see
Bryant argues that the DoD
prac
has in
also Ark. Educ.
Comm’n,
Television
523 tice “opened” the advertising sections by
S.Ct. 1633.
running “political” ads. He likens this
Stewart,
We conclude
case to
advertising
section of a
we held the
a
display
CEN is
nonpublic
“large
forum.* This
banners” and
follows
the distri
from the
bution
“political
fundamental
that
literature” “clearly
fact
CENs are
sug
gested]
intended
solely
[RFK Stadium]
“facilitate
a
accomplish
prac
ha[d]
ment
tice—if
a policy
command or
allowing
installation mis
various
—of
types of
sion.”
first
DODI
amendment activity to
6.2.1.1.8. To that
take
end,
place.”
1019;
a
863 F.2d at
CEN functions
see
as
Lebron
“conduit” for
v. Wash.
Metro.
Auth.,
flow of
Area Transit
information between command
(D.C.Cir.1984)
(WMA
ers
& n. 6
and service members in order “to im
TA
prove
“converted its subway
internal cooperation[,]
stations into
per
mission
fora
formance!,
accepting ... political
morale,”
ad
and]
and to provide
vertising”).
“assistance” to service members and their
families.
Id.
6.2.1.1.1-3. Nothing in
The Government responds
Bryant
DODI 5120.4 suggests the advertising sec
has
produce
“failed to
single
advertise-
tion
any
has
purpose other than to further ment in any CEN
political,
that is
partisan,
these mission-oriented aims. On the con or even vaguely comparable to
rejected
trary, DODI
provides
the DoD
material.” Just
so.
up
offers
prevent
the distribution of a CEN if it
“political” only the Dole
ads,
and the FBI
contains an advertisement
is “con neither of which
any
has
political content
trary to ... DoD or Military
regu
Service
or otherwise indicates the Government in-
lations, including
5120.4],
[DODI
or that
tended
open
the forum for general ex-
* The Government
contends
decision
897 hinder) military com of a mission not two advertisements These use. pressive a obviously installation, or the mand to show therefore, insufficient are, v. Wein See Goldman goal. legitimate a “consis- approaching anything DoD has 1310, 507, 503, 106 S.Ct. Stewart, 475 U.S. berger, 863 practice,” and policy tent (“The (1986) military need omitted), 478 per- L.Ed.2d of 89 (emphasis at 1017 to protest or tolerate encourage debate gen- in not advertisements mitting expressivе required tolerance that such extent particular, eral, advertisements political Amend by the First in- state Bryant’s; civilian like of any advertisements or the mili its mission accomplish ment; have consis- practice deed, and policy obedience, uni instinctive advertise- tary such must foster to exclude tently been 300-01, corps”). commitment, esprit de Lehman, at and ty, 418 U.S. See ments. by § 4.11— not (city barred did content (plurality) “political” The 2714 304, candidates, par pub- campaigns, on buses spaces of advertising discussion designаte disrupt types ties, issues, policies may DoD various and permitted lic fora when — “any undermining the camarade permit by not did mission but advertisements members, under clear advertising”); their issue service rie of public or political 831, their mis 838-39 and commitment standing of Spock, Greer constitutional sion, “the American or even n. & Dix neutral Fort politically “convert of a (Army did tradition control.” civilian hosting] a civilian [by under forum establishment public a into 1211. 839, 96 S.Ct. abuse, Greer, at religious a service drug lecture on a just such posed roсk musi- ... a Bryant’s or advertisements preacher visiting by a politi §in and demon- The exclusion “[sjpeeches danger. but no cal concert” nature”); advertise Bryant’s and of political advertising, partisan a cal strations (Ma- reason is therefore 172-73 F.2d at in particular, Shopco, ments see 839-40, n. Le- 831 & Camp id. at designate See able. Corps did rine barring by regulations (upholding a forum area jeune’s residential speeches “[d]emonstrations, political laundry, and ... delivery pizza, permitting military base and on activities” and similar publication). civilian “publi exclude commander authorizing that, as sum, no evidence there In danger a clear presents [that] cation it, intended DoD puts at troops morale or discipline, loyalty, sec- advertising maintain or establish Lehman, installation”); [the] cf. fostering goal of of CEN “with tion (plurality) public.” assembly communication advertis “political on (transit ban system’s therefore, a is, advertising section ad political reasonable ing” held re- Consequently, nonpublic forum. to “blare subject riders could vеrtisements only § 4.11 need speech upon striction create “lurk propaganda” political light of the reasonable be favoritism”). about ing doubts clearly It is viewpoint-neutral. forum both. 4.11, “as asserts advertise applied [his we written argues,
The Government view against [his] ments], discriminate^] its face reasonable § 4.11 is agree, claima makes as Insofar point.” The restric Bryant’s ads. applied discrimination, his claim viewpoint of facial of adver the content upon §in tions because, as the Gov unfounded pаtently to ensure designed reasonably tising are by its terms out, § 4.11 points (or ernment does at least advertising furthers *10 898 does “not distinguish political between far way easier to analyze kind this of case
viewpoints.” Insofar as Bryant makes a under
the Supreme
precedents.
Court’s
claim of as-applied viewpoint discrimina
See
v. Rumsfeld, No. 04-cv-1125,
tion, his claim doubly
slip
(D.D.C.
forfeit: He never
op. at 12 n. 5
2007).
12,
Mar.
raised the
claim
court,
the district
military-run
These
newspapers and the
in his opening brief
appeal
he offered
advertising sрace in them are not forums
only the single, conclusory
just
statement
for First Amendment purposes but instead
quoted. SEC v. Loving
Found.,
Spirit
are the Government’s own speech. See
Inc.,
486,
392 F.3d
491 (D.C.Cir.2004); Arkansas Educ. Television
v.
Comm’n
N.Y. Rehab. Care Mgmt.,
NLRB,
v.
LLC
Forbes,
666,
523
U.S.
118 S.Ct.
506
1070,
(D.C.Cir.2007)
(“It
1076
1633, 140 L.Ed.2d
(1998);
875
see also
not enough merely a possible
mention
Johanns v. Livestock Mktg. Ass’n, 544
argument in the most skeletal way, leaving
550, 553, 559-60,
U.S.
125
2055,
S.Ct.
161
work”)
court
do counsel’s
(quotation L.Ed.2d
(2005);
896
United States v. Am.
omitted).
marks
Ass’n, Inc.,
Library
539
194, 203-05,
U.S.
2297,
123 S.Ct.
III. Conclusion
(plurality opinion); Legal
Corp.
Servs.
sum, §
In
4.11 of DODI 5120.4 does not Velazquez,
533,
541,
U.S.
121 S.Ct.
Bryant’s
violate
First
rights.
Amendment
1043, 149
(2001);
L.Ed.2d 63
Bd.
Re-
regulation
сlear,
not vague.
It is gents Univ.
Sys.
Wisconsin
v. South
in light
reasonable
of worth, 529
217, 234-35,
U.S.
the advertising section of a CEN and view- 1346, 146
(2000);
L.Ed.2d 193
Nat'l En-
point-neutral, which, because the advertis-
dowment
the Arts v. Finley, 524 U.S.
for
ing section is a nonpublic forum, is all the
569, 587-88,
141 L.Ed.2d
First Amendment
requires. The judg-
(1998);
Rosenberger v. Rector & Visi-
ment of the district court is therefore
tors
Univ.
Virginia,
833, 115
plied, pol- editorial of sensible kind
maintain
icy.