*1 against dismissing the action judgment Ogle is reversed
defendants Cockins further is remanded cause
and the proceedings opinion. with this consistent KIISKILA, Plaintiff-Appellant,
Carolyn Clifford, NICHOLS, A. Clark
Edwin Headquarters Credit Fifth Union, Defendants-Appellees.
No. 17580. Appeals, Court of
Seventh Circuit.
Aug. 3, 1970.
T46 Military
Fort Sheridan Reservation. The district court denied Kiiskila’s mo- injunction preliminary tion for a re- straining enforcement the exclusion granted summary judgment order and appeal for the defendants. On ruling court affirmed the district court’s judge dissenting. with one Subsequent- granted ly, plaintiff’s petition for re- hearing en banc. We reverse and order be readmitted to Fort dispute. Carolyn The facts are not in Kiiskila is a civilian who was at the Military Reserva- manager tion office of a credit union. She is a former WAC and a member of Veterans for Peace in Vietnam. As part of peace its efforts to achieve Vietnam, Veterans for Peace seeks to in- form members the armed forces legal rights and to solicit their peace for the movement. On October 1968 the Veterans for rally Peace scheduled a for service Chicago. sonnel in On October 23 Kiis- kila in a casual conversation rally mentioned the to a Lieutenant O’Neal. She informed him that she rally be chairwoman at the gave him meeting. ticket attend the On October 24 distributed concerning rally at loca- on, near,, tions the Great Lakes evening Naval Station. That she re- 111., Howell, Chicago, Kenneth K. for accompanied by turned to Fort Sheridan plaintiff-appellant. Upon entering a serviceman. Bauer, Foran, J. William Thomas A. stopped military police. she was Her Attys., Cohen, U. S. Michael B. U. Asst. fifty pounds car was searched and about 111., Atty., Chicago, S. for defendants- of anti-Vietnam war literature were dis- appellees; Lulinski, John Michael Peter covered the trunk. Much of lit- Nash, B. Asst. Attys., U. of counsel. S. allegedly erature had been in Kiiskila’s for several car months. SWYGERT, Judge, Plaintiff was Before Chief interrogated then KILEY, escorted off the FAIRCHILD, CUMMINGS, and base. KERNER, Judges. Nichols, On October Colonel SWYGERT, Judge. Chief commanding Fort officer at Plaintiff, Carolyn excluding Kiiskila, brought permanently an issued order hearing validity post. action to No under the prior
first and fifth amendments
order
held
to the issuance of his order.
of an
by defendant,
issued
purported
ex-
Edwin A. The
Nichols,
excluding
permanently
“on or
her from
was that
about October
engaged
prej-
court,
in conduct
relying pri
The district
1968 [Kiiskila]
marily
good
discipline
order and
Cafeteria
and Restaurant
udicial
my
Union,
accomplishment
mis- Workers
Local
AFL-CIO v.
court Colonel
the district
sion.”
(1961),
he issued the
(1)
testified that
Nichols
held:
*3
concluded from
empowered
he
order because
Nichols was
to ex
occurring
23 and Oc-
on October
clude
from
Kiiskila
the
events
base without a
attempt
hearing;
plaintiff
(2)
provide
24 that
“would
that
the
tober
failure to
hearing
on the
process;
this
a
did not
distribute
violate due
(3)
plaintiff’s
and
that
exclusion from
violation
rights
27-1
the base did not
her
tion 27-1.”
violate
under
demonstrations,
sit-ins, pro-
“Picketing,
first
the
amendment. We
con
are not
marches, political speeches, and sim-
Workers case
vinced that
Cafeteria
compels
necessarily
that
ilar activities.”
conclusion
empowered
Colonel Nichols was
to ex
exclusion
result of
As a
plaintiff
clude
from Fort Sheridan with
perform
unable
she was
from
hearing1
out a
and
that
absence of a
employment was ter-
and her
duties
her
hearing comports
process
due
un
with
employers
Her
stated
civilian
minated.
der the
amendment.2
need not
fifth
dispensed
her services
only
however,
questions,
because the
decide these
since
reluctance” and
“with
“military
made
grant
im-
authorities
requested by
full
relief
possible to retain her.”
ground
her exclu
authorization,
explicit
a
Absent
governing
appropriate
lish
entry
rules
a civilian em
not exclude
commander
upon
from,
persons
and
exit
installation with
a
from
installation,
search of
hearing.
& Restaurant
a
Cafeteria
out
possessions
sons
limited be-
and their
as
886,
McElroy,
Union
Workers
v.
552.18(d).
low. 32 C.F.R. §
(1961) ;
1743,
6 L.Ed.2d
require
regulation
read
474,
McElroy,
S.Ct.
Greene
promulgation
by
written rules
each
In the
sion from Fort Sheridan both employment the exclusion order in this loss of her civilian essen- comitant tially equivalent person rights dismissal violated her freedom employment. from Cafete- under the first amend and association ria & Restaurant Workers Union ment. supra, 1743.4 viewed, plaintiff’s When so claim that predicated her her exclusion was an- the outset Defendants assert tiwar careful activities demands scruti- rights first amendment ny under the first amendment. “she is in in this case since involved continuing way prohibited from no constitutionality under Vietnam]; [against the war in activities discharge the first amendment of *4 doing enter- all she is ultimately public employment depends ing statement Fort Sheridan.” This upon weighing indi the interests assertion echoes Mr. Justice Holmes’ against In vidual those the state. petitioner may a con- “[t]he great equation particularly such an right politics, he to talk stitutional phasis placed upon interest must be right po- has no constitutional to be a exchange society encouraging in free Mayor v. of New liceman.” McAuliffe Pickering Educa Board of ideas. v. Bedford, 216, 220, 29 N.E. 155 Mass. U.S, 1731, tion, 563, L. 88 20 391 S.Ct. demonstrate, (1892). 517 we shall As (1968); v. Ed.2d 811 con- of this do not broad assertions sort Robel, 258, 419, L. 19 389 U.S. 88 S.Ct. appropriate for de- stitute an standard (1967); Floyd, 385 Ed.2d 508 cf. Bond v. termining constitutionality in and fact 116, 339, 235 87 17 L.Ed.2d U.S. S.Ct. analysis required only serve to obfuscate (1966). de That interest was best competing private and consideration in New scribed analyzing public and interests.3 254, Sullivan, York Times Co. v. questions in involved the instant case we 720, 686 11 L.Ed.2d must, therefore, carefully in- define (1964), profound as “a national com deprived terest Colonel principle on mitment to the that debate denominating Nichols’ order avoid it and public uninhibited, be and issues robust by conclusionary such characterizations wide-open, may and that include well right privilege. as vehement, caustic, un and sometimes pleasantly sharp attacks on The interests of affected by public considerably An officials.” essential corol defendants’ actions extend lary principle is that a citizen beyond her to Fort access permitted, expected, and even to criticize employed at credit union She was policy government. decisions of This his permitting base. credit union expressions opposition na includes in to operate to at Fort foreign policy tional in Vietnam. Bond undoubtedly contemplated that to access Floyd, supra v. 385 U.S. at required by would be civilian Indeed, because is a including 339. employees Moreover, Kiiskila. and because she into WAC comes termi- it also must have been aware former personal many contact members of employee’s nation of a civilian access to forces, her criticism mili the armed the base would result in loss of his Thus, employment. in terms of the tary policy especially valued generally Alstyne, employed 3. The See W. Van at a installa- a civilian Right-Privilege temporarily Distinction Demise of denied access to tion can be Law, jeopardized job in 81 Harv.L.Rev. Constitutional is not as a the base Similarly we need not decide result. civilian not whether Therefore, or decide need consider for the reasons base could be present there are circumstances in this case. society. Pickering Edu- Board of Great Lakes Naval Station Cf. supra cation, carrying' antiwar car primary 1731. Citizen criticism formed the many including, pressed in forms previously Nichols’ order. As we have case, demonstrated, distribution of literature these are activities personnel expression outside of forms of every in which citi- City of engage. installations. Martin zen Secondary is free to em- Cf. Struthers, 141, 146-147, phasis placed 63 S. is also Kiiskila’s cas- part 87 L.Ed. As Ct. ual conversation with Lieutenant O’Neal right in criticism of at Fort Sheridan on October governmental policy, reject must citizens also defendants’ join permitted to- assemble and this conduct constitutes a violation of gether groups objec- Regulation achieve reference protected of associa- tives. regulation “similar activities” in that membership groups such tion includes interpreted light preced- must be Peace, organized solely as Veterans describing proscribed words activi- encourage opposition governmental Thus, we hold ties. casual conversations Robel, policy. States United picketing, are too dissimilar demon- 419; Cafe strations, sit-ins, marches, protest cf. teria & Restaurant Union v. political speeches pro- Workers fall within *5 . McElroy, supra Regulation at 81 S.Ct of hibition The con- occurring is, versation on October therefore, also a citi- conduct right" engage in A citizen’s to engage.5 ordinarily zen is free to As protected expression is sub or debate are the defend- we convinced that stantially by fact that he unaffected the plaintiff’s ants used status as a civilian government employee of the is also an discourage employee Fort to at Sheridan general rule, and, be de he cannot as a from exer- and others like her employment prived of because rights. cising their In the absence rights. so be those This is he exercises overwhelming countervailing in- state an government from cause dismissal peculiarly pertaining plaintiff’s to terest or ployment, sanctions like criminal job think her ex- at Fort damages, may propensity of inhibit concomi- from the base and freedom to to exercise his a citizen job her unconstitutional tant loss of are Pickering v. speech and association. first amendment. under the Education, at society’s protect 1731. To II de robust in uninhibited interest arguments Although are defendants’ demands first amendment bate clear, present appear to far from inhibit government from req- theories to establish two related by speech suppressing indirection or to sustain interest needed uisite state discharge government em through of a rest plaintiff’s theories exclusion. Both objective could same when pre- principles premise constitutionally criminal achieved exception subject viously to are stated United means. or other direct sanctions for mili- need this case because Robel, supra. States preserve an tary discipline in order to posture. The this ease defense effective national think the facts distinguish in- theory protection under to first entitle public employment cases on activities principles. Kiiskila’s stant case job leafletting including near on the basis October constitutionally interpretation casual light limit content of our In by civilians discussions decide or or we need not consider conversations tion 27-1 military bases. could or what extent military view, however, exception installation. that this formed inside inapplicable present failed to evi- the instant case since the Defendants have content of disci- Kiiskila’s criticism and ex- dence demonstrate pression by plaintiff’s directly pline actually affected does not refer to mat- intimately presence her an- ters ployment, her em- or concerned with on the base even job superiors, defendants cowork- Nor have tiwar activities. any ers. presented event we need not decide to show evidence any subject here way disci- since defendants is in instead, present evidence, except failed pline Their assertion herself. broad assértions Nichols con- undefined claim that a broad cerning discipline, morale and to estab- and national defense considerations proof theory. permit lish under this sufficient rights infringe freedom United and association.6 Ill 263- Robel, supra States argu Defendants make one final Supreme Court position. ment to Accord interposed rejected similar ing to this contention Colonel Nichols justify the loss the Government not because of her an plant job petitioner’s defense tiwar activities but because of his fear membership in the Commu- of his that she would in similar conduct party. noted: nist There the Court violation of power’ phrase cannot ‘war “[T]he 27-1. Such assertions must be viewed sup- incantation voked as a talismanic with caution for as the congressional power port exercise recently noted in Tinker v. Des Moines brought ambit. its which can be within District, Independent Community School power remove does not war ‘[E]ven 503, 508, 733, 737, safeguarding limitations constitutional *6 (1969): system, Bldg. our “[I]n Loan Home & essential liberties.’ apprehension undifferentiated fear of or Blaisdell, 54 Assn. * * * enough disturbance not overcome L.Ed. 413 78 Ct.S. expression.” to freedom of if, in the name ironic It would indeed be Thus, permit depri unless we are to defense, would sanction of we national rights through vation of constitutional one of those liberties of subversion subterfuge, validity of a command association—which —the freedom of ing exclusion of a civilian officer’s of the nation worth- the defense makes must showing by from a installation of a while.” In the absence subjective turn more than his own distinguish ease defendants to reason for his action. rights may statements of the Robel think we de- or curtailed not threatened be previous been cases exclusion has unsupported assessment own fendants’ supported in the evidence substantial defense. requirements of national Restaurant record. In Cafeteria & government theory supra is that 367 A second Workers Union v. employ- public person deprive of 81 S.Ct. plaintiff’s impairs person speech if that was ment exclusion Court held that “entirely job. carry ability his out she was a secu- rational” since in Pick- expressly rity presence reserved was on the base risk whose Education, sabotage 391 ering of produced of reasonable fears 1731; 569-570, Lef- Similarly 88 espionage. Weissman cf. Society, S.D.N.Y., (10th Legal States, Aid Cir. court v. F.2d 271 v. United 11, 1970). of (May F.Supp. properly We 1967), plaintiff course, infringe We, permit government views concern- intimate no on the free- speech to which the interests members extent and association dom of discipline and national defense services. of the armed ty disrupting proceed- a court martial was too far removed in terms of both ing, directly it had occurred distance and time to conduct and immi- Regulation nently proscribed activity would violate foreshadow however, case, de- Finally, In the instant inside Fort 27-1.7 note we not fendants do much dis- antiwar .contend security evening has vio- risk or even that she covered of October Instead, regulation. allegedly had lated been the trunk of Kiis- many off the that her conduct kila’s assert car for months and had not she gives to an inference rise been distributed Defend- base the base. and, presumably allega- disprove in similar ants failed to will Thus, unprotected, the base. activities on tions. all when evidence together gives nearly taken rise to a say prepared to are not We conclusive inference that never never conduct can off-the-base intended to violate validity determining considered estab is now well order. It an exclusion Accordingly, judgment is reversed guar however, lished, that constitutional directed to en- and the district court do speech association free antees readmitting ter an order or to forbid permit not Fort Sheridan. protected con proscribe or other directed that conduct duct unless inciting producing lawless imminent Judge KILEY, (specially con- Bradenburg Ohio, 395 U.S. action. curring) . L.Ed.2d I concur reached principle think similar Judge Swygert’s opinion, prefer hold that applies in this case. Thus conduct protected my first amendment concurrence on the basis that determining considered barring plaintiff the Commander’s order violate will likelihood from the Fort was too drastic and vio- directly regulations unless that conduct principle proportionality. lated the proscribed imminently foreshadows purpose pre- Where the Commander’s activity. on-the-base serving good discipline order could applied fulfilled in the measures short
When this standard is freedoms, defend- fringing instant is evident First Amendment plain- must fail and that ants’ infringing not be measure should *7 tiff’s exclusion was unlawful.8 Never warning I sustained. Here think that litera- past has distributed suspension technical mili- other ture on Fort Sheridan or privilege probably of access have would tary is devoid record base Keyishian of Re- sufficed. See in Vet- statements Kiiskila or others gents, 589, 602, indicating an intent erans for Peace L.Ed.2d 629 future. so do “subterfuge” used If the word relating by plaintiff, The sole conduct implies page majority opinion 8 of activity proscribed by Post or- that Colonel Nichols’ reason military bases, tion 27-1 conducted on leafletting fear, expressed rath- outside der not his October was That activi- Great Lakes Naval Station. anti-Vietnam er his dislike is, course, appro- Weissman not con- be the of access to the trolling plaintiffs remedy priate here since the exclud- if this were satisfied. personnel Tucker, ed in that case were not civilian See Shelton base, temporary 8. We need not decide whether permanent exclusion rather than denial views, I
war think that the record does implication. KERNER, Judge (concur-
ring) . majori- opinion I concur
ty. However, agree Judge Kiley warning by
that a the Commander would prevent Miss been sufficient disrupting base activities. America, STATES
UNITED Appellee, O’CONNOR,
David J. Defendant- Appellant.
No. 7629. Appeals,
First Circuit.
Oct.