Thomas S. Culver v. Secretary of the Air Force

CULVER, Appellant, Thomas S. FORCE. OF AIR

SECRETARY

No. 75-1468. Appeals, Court

United States Columbia Circuit.

District of March

Argued

Decided Jan. Sherman, Ind., F. Bloomington,

Edward Texas, of the bar of the Court of vice, by special court, hac leave pro Addlestone, whom David F. Washington, D. C., Wulf, Melvin New City, York appellant. the brief for Graham, Richard A. Asst. Atty., U. S. C., Washington, D. with whom Earl J. Sil- bert, Atty., and John Terry, U. S. A. Asst. C., Atty., Washington, D. were U. S. on the appellee. brief for BAZELON, Judge, by LEV Judge Before Chief Advocate General of the Air ENTHAL, Judge Force, Circuit and CHRISTENS pursuant UCMJ, to Article EN,* Judge United States Senior District further review was Appellee, denied. the District of Utah. Secretary Force, of the Air is the adminis- trative head possessing authority to void Opinion by for the Court filed Senior appellant’s court-martial conviction and Judge (joined by District CHRISTENSEN Appellant sentence. has since received an Judge LEVENTHAL). Circuit discharge honorable from military. opinion Appellant filed Concurring Judge filed this suit Circuit in the district court on June LEVENTHAL. to attack collaterally his court-martial conviction. Declaratory Dissenting opinion Judge filed Chief injunctive compensation relief and BAZELON. monetary claimed losses sought on the CHRISTENSEN, contention that Judge. Senior District the Air regulation Force upon which his conviction was based was Culver, appellant, cap- Thomas S. unconstitutionally vague and overbroad. Corps tain in the Advocate General’s court, The district following briefing and the United States Air Force stationed argument, and having before it the record Royal (RAF) Air Force Base in Laken- court-martial proceedings and heath, Suffolk, England, July, review, granted appellee’s mo- by general tried and convicted court-mar- summary tion for judgment and dismissed charges on of conduct unbecoming tial the action.4 It was the conclusion of the gentleman, officer and violation of court trial that there had been demonstra- 133 of the Article Uniform Code of Military tion in the country contrary to the (UCMJ), 10 (1970),1 Justice U.S.C. § regulation as to which appellant May that on he solicited other participated had both participa- invited military personnel general to violate a Air charged; tion as that like Captain Levy in Regulation, Force AFR 35-15,13e(3)(b)(8),2 Parker v. Air prohibiting personnel Force par- from L.Ed.2d 439 he had reasonable ticipating in demonstrations in foreign notice that his punishable conduct was countries, violating and of the last cited vagueness thus claim of was without regulation in contravention of Article merit, and that the challenged regulation UCMJ, (1970),3 10 U.S.C. by himself § overbroad, was not either on its face or as participating in a demonstration London applied to the facts of the case. May Appellant 1971. was sentenced a fine of reprimand. $1000 appeal On this renews his judgment court-martial approved by against regulation attack for claimed the Commander of the Third Air Force and vagueness and appellee overbreadth.5 The * Sitting by designation pursuant (1) obey any 28 U.S.C. violates or gener- fails to lawful 294(d). § regulation; al order or (2) having knowledge other lawful “Any 1. commissioned officer who forces, order issued a member of the armed unbecoming convicted of conduct an officer duty obey, obey which it is his fails to gentleman punished and a shall be as a court- order; or martial direct.” (3) performance is derelict of his duties; punished shall be as a court-martial prohibited 2. “Members of the Air Force are may direct.” participating in demonstrations when: (a) duty. Secretary Force, 4. Culver v. of the Air (b) foreign country. In a (D.D.C.1975). F.Supp. 331 (c) In uniform in violation of AFM 35-10. (d) Their activities constitute a breach of Appellant argues, among things, law and order. word, operative “demonstration”, is so (e) likely Violence is to result.” vague give members of the Air Force “Any person subject adequate prohibited chapter notice of what is since who— Rights Calloway, mittee for G. I. application and its

defends (1975)), 518 F.2d 466 as to U.S.App.D.C. legiti- supported by it is asserting that here principal understanding task an make our and is constitution- military interests mate controlling facts in and statement al.6 light of them. necessary nor desirable neither It seems Cole, 24, 1971, Captain Robert L. May On attempt comprehensive case to in this appellant in the and coworker of a friend treat- generally authorities of the analysis Judge Advocate’s Office of 48th Staff vague- or of overbreadth questions ing the Group, in with a Support company Combat temptation in such could be There ness. wife, sergeant and latter’s saw the staff captives of art to become legal crowded standing heavily at the side of a appellant ap- past and problems collateral which carried traffic between road traveled from the future diversion prehensions Village and two RAF bases in Lackenheath timing us. The and before presently issues apparently handing рassing to England, case lie somewhere of this circumstances papers from a bunch held over motorists prior travail of Vietnam and between Cole’s car Captain As slowed down in arm. complete re- and, the more hopefully, wars appellant leaned forward and passing, remaining con- of freedom lease captain papers one of the gave through abroad, well military necessity as straints of the car. open Captain window Both principles which are im- The at home. as sergeant were and the in uniform but Cole controlling here have been so mediately was then dressed in appellant civilian Spock, in Greer v. 424 expounded recently appellant Neither nor Cole spoke clothes. 1211, 828, 47 L.Ed.2d 505 96 S.Ct. U.S. any sign recognition. or showed 733, and Parker 417 U.S. 94 (1976), by appellant it was handed to him paper as (1974), supra (see L.Ed.2d 439 41 Captain evening read Cole that and Henry, Middendorf to a document identified as Prose- identical also (1976) No. 3 at L.Ed.2d 556 and Com- Exhibit court-martial. cution regulation particularly argued It and is defined in “since the service- term nowhere no is by military provided gloss right engage presentation peti- administrative is in a men’s definition; to aid in its or cases Congress materials the term is so broad blages to the President tions addressed many assem- as to include statute, firmly regulations is established partici- servicemen American in which Constitution”, appellant and those simi- the larly any attempt prose- pated England without right publicly had the situated cution; any justification for the petitions “present” to the American Ambassa- harmony preserve host nations was to avoiding political for transmittal to the dor in London President participation in local demonstrative Congress. distinguished as from those con- issues States; only in the United that while interest troversial there could be “a forbidding off-post appellee contends that the word 6. The “demon- legitimate examined in context is suffi- stration” when which, having activities tak- put appellant ciently explicit to have on notice demonstration, constitute a en the form a serious interference or detract host activity proscribed; the nature of as to politics in the host nation’s notice of the exact nature of the his actual prohibited with the from harmonious relations deprives standing conduct him of military judge and nation . . face; language vague is that the on its assert scope have limited the the lower court [should] military judge appropriately defined by requiring a de- ‘demonstration’ of the word termination term; that the determination of court- in harmonious re- that the interest involved the fact that the conduct martial as to affected”; adversely that the lations [had be] binding; a demonstration is that as constituted generally known and in the word is fact that overbreadth, similarly had to claimed acceptable, usage not make it does common clearly standing limitation; since his conduct with- no that the word is of without sufficient as vulnerable regulation; vagueness legitimate charge constraints to the as context, “contemptuously” viewed in the entire held vulnera- that when such words and prohibition Goguen, against participation in demonstra- ble in Smith v. (1974), “gang” supported by legiti- dealt with 39 L.Ed.2d countries is tions in Jersey, impermis- v. New in Lanzetta does not interests and mate “annoying” L.Ed. 888 constitutionally protected S.Ct. considered U.S. sibly activ- extend Cincinnati, City of in Coates v. ities. 29 L.Ed.2d otherwise, you brief, are blandly doing, describes some rather Appellant’s argument just . . With the much of his kind of and rests paper [B.S.] we going entertainment have there characterization.7 such a upon coming, they be hundreds so won’t description does indicate Appellant’s even be able hassle most of us. But document or its fully the nature important point. that isn’t It legal. type various kinds purposes. doing All is exercising we are in some emphasis which lent arrangements Americans, present we have as others, the deemphasis in fol- instances to the petition and to have a additional comments that lowing are some party. you get make sure that your So appeared: you along. tickets so can come bus . Corrupt Emerging Against Es- People okay you’re op- . . . tablishments — . plain The Petition. . The fact you doing war. What are posed to is nothing wrong is that there with circu- Third it? Airforce about petition you the unless lating can call uniting express disap- to G.I.’s are doing so a demonstration. That requires inwar Vietnam. Antiwar the proval of the verbiage a stretch of that even a Sign one now! circulating. petitions court-martial would find difficult to stop Come with us there. But don’t if make. Even that stretch is made you our constitutional exercise when we intо the run First smack Amendment to to petitions the the present and rights guarantees the which Constitution the Embassy at the U.S. Ambassadors people petition the govern- to Washington. send them to who must ment that if and followed AFR 35-15 people have The Some presentation. quoted petition’s as form. Don’t presentation 31st me if asked you they love charge think would to those The is that it legal. answer will be have guys who been arrested. The rea- 35-15 that under AFR it is It is clear be. is they they can’t, son haven’t it is a to attend demonstration in a offense an just get So out get no offense. there and But than the U.S. this will other signatures we give some more so can . The not be a demonstration. a bundle on the Ambassador 31st. . 35-10 AFM makes recent amendment it an to clear that would be offense it keep can group together, So we type of gath- wear a even uniform gates buses will leave the front Also it is ering. very no So uniforms.. following at times. bases the fuzz will be around and possible large Only when a number of G.I.’s turn two of the coaches with even perhaps out we have an effect. can imperative so doggies, their day, clean —that doesn’t mean everyone May special On the same agent bath, dope. long it means So Allen of of Special a no James A. the Office take Investigation we and make trou- received information ap- are clean don’t nothing wrong coming distributing leaflets on pellant there is Lord’s ble somebody Driving past If tells appellant Walk. at a low presentation. buttons, placards, tion . that the Third Air as “there will be no stated no leaflet assaults, English group marching just from six installations no a Force servicemen G.I.’s petitions representative present presenting petition to the President and to the local would opposition Congress expressing Congres- Vietnam and our our Commander Chief Embassy in London on representatives.” American It also war May sional indicated that joining peace “in The leaflet called there be a concert certain your opinion presenting to the President and pre- and after named celebrities musicians stating Congress”, us “Come with when we provided and the names address- sentation present rights and constitutional exercise our es of who could be contacted for infor- airmen petitions at the U.S. to the U.S. Ambassador concerning petitions mation tickets Washington.” Embassy send them who buses into London. this would not be demonstra- It stated that Agent Allen extended his arm speed May 31, On Memorial Day, rate of open Sergeant Joseph window and received a E. Wilson through the Staff took a bus, along with about chartered 30 other appellant which was identical leaflet military personnel, Speaker’s Corner at exhibit referred above. prosecution to the Park, London, Hyde phase site of one Advo- May On Staff “presentation” described the leaflet Support Group, 48th Combat cate of the appellant had distributed a week ear superior, prepared immediate were all They lier. dressed in civilian to the Commander presented base group clothes. The arrived аbout 11:15 Air interpreting regu- Force statement a. m. and found about for circulation the com- lation personnel already and civilian assembled. document copy A mand. group increased to about 200 noon. who acknowl- presented formed, group As the the military members receipt of a This edged copy. document white were handed arm bands depicting a read as follows: upraised, fist, helmet and clenched have publications recently Unofficial them. told to wear Lt. Col. Bernard H. legality Fowl, as to opinions police offered cer- of security director at Third Headquarters Air and dissent Force who protests tain activities. had come to London to observe the expected are incorrect. If opinions accepted Those demonstra tion, total saw a of five buses upon they subject come to participants and acted Speaker’s Corner that morning deposit punitive All personnel action. to severe passengers. After the last bus arrived that paragraph 3E3 of AFR are advised more arm bands were passed out to the activities, spe- dissent following crowd. Then a short conference cifically participation prohibits by mili- police with organizers several officers the in tary personnel demonstration in a group particular moved a section of country. The prohibition applies which the police pointed. the corner to Lt. whether the serviceman or servicewoman Col. Fowl recalled that in addition to the bаse, uniform, in is on or off or out of there group corner were a great number of duty. It or off also in applies full force Shortly onlookers. thereafter the group sat of which irrespective term or name is Then, pavement. down on the according to given to the demonstration. Violation of Sergeant Wilson, group Staff a of six regulation carries punish- a maximum a young men read press, statement “to the discharge, ment of a dishonorable total media, cameras, news television concerning forfeitures, basic, reduction airmen presentation that [they] were to make.” labor and confinement hard for two Lt. Col. Fowl described the scene in his years. considering participa- Personnel testimony: tion in activities should be aware such they After majority moved the consequences, the true and not be misled male members of group, and I’d say from whatever misinformation source. somewhere between them, 50 and 75 of I have and understood the read above. sat in of a pie-shaped a sort arrangement, fair in It seems a inference view of the semi-circular, with their backs to me. papers appellant context of had been circu- Then, group, in this six stood towards the lating immediately almost theretofore and amphitheatre front of this arrangement interpretive the reference statement people and more or less the center “presenta- to the differentiation between of them with their backs to me. At attempted tion” and “demonstration” time appearеd about what to be interpretive sponsors, state- newspaper people with cameras tape prior ment events hereafter recount- recorder, microphones, gathered around by appellant ed was known refer to the men, young them, these six or in front of specific occasion in which he had, must have young and the six men each one of planning participate. them, piece been a of paper hand, had in his though Following presentation prose- as one after appeared reading paper. This case in was cution’s chief before the court-mar- recorded, think, by at least being tial, two members of the Air Force who had recorders, tape and there with people actually two May witnessed the event of there taking pic- cameramen called, several were were whose testimony was largely conclusion of the last man At the tures. confirmatory of what already had been read, he had the crowds reading what Hodgson Commander presented. Harold ap- unison broke less in out more Yard responsible New Scotland who was as on” “right such comments plause with safeguarding Hyde Park and the Unit- speakers these raised Each of being said. Embassy ed States areas testified that on his head when that oc- above arm May organizers 21 two the Hyde Park curred, with clenched fist and some plans informed him of their presentation V-signal, or whatever it’s some May They were told that the origi- called. plan acceptable nal beсause it en- testified, Sergeant Wilson Thereupon, large assembly tailed the Embassy. groups according to into formed “The G.I.’s suggested, however, group He as- base, petitions be handed the their own Speaker’s semble Corner and move to the taking to Ambassador. we were Embassy in groups small from there. Com- we suggested that Parker Mr. Hodgson arranged mander then for extra own particular up should form to be police duty at the two sites in- area, Group say one Heyford groups, the volved for 20 to be constables hidden a another, Group in Laken- Alconbury short distance away from immediate we in another ... Group heath The proceedings orderly. area. were spread [queue] rough and out very formed Gatress, also defense called Valentine over Em- generally and walked Professor, Cambridge to explain history Well it started off as a . bassy. Speaker’s in this role in Corner neutraliz- Hyde out of Park it no line, got we but protest. Soper Kingsway, Lord ing There several a line. longer was Lords, House of also member testi- a doz- approximately a half groups small appellant, discussing activity the at fied together. walking along people en viewpoint Corner from a of Speaker’s the underground way under the We followed presentation the British attitude toward of Hyde across the street the road petitions. Park; now, right to make a turn we have circumstances, as shown by The actual about or three that down two and follow convincing evidence before court-mar- turn, walk a left down about blocks, makе tial, necessity obviate the theoretical we and were beside the blocks three more balancing nice any or groups . The characterizations small embassy then. yards They clearly establish and 25 authorities. rather between anywhere were not one they planned and even at both as executed yards apart, and as group.” presentation a solid involved not a mere time occasion pure simple. demonstration and And but a sub-group each members As the so, in the sense that the latter this is term Embassy, they entered to reached the by ordinary applied persons be would Embassy repre- to an petition their present military context by as understood well re- sentative, Embassy left and then having particularly those most Park, buses, Hyde boarded their officers — turned to planning, pur- to the appellant’s exposure Victoria Park for enter- taken and were and effect of such an occasion so poses During concert. a rock and tainment any pre- mere transcending transparently and the Hyde proceedings Park assembly petition of a for consideration of sentation wore a Embassy, appellant who at the through officials to whom or whom it public photo- was identified band white arm addressed. was graphed. any place with the observations agree generally could be considered so to be. The Judge Pratt when military conclusions of he had wide latitude in defining implementing motion government’s military for sum-

granted interest and ne- judgment, Secretary cessity respects. Culver оf the in these mary Force, (D.D.C.1975), F.Supp. 331 Air argument The giv restriction if general comments especially as supra, application preclude en literal church subsequent up by the decisions pointed gatherings, celebrations, environmental Court in Greer and Midden- such things band concerts and spe seems dorf, supra. gloss is a kind of cious. There to the term as used “demonstration” in the regulation altogether appellant The reads too “protest from the context and dissent” in narrowly of the military interest appears, treaty which it treaty obligation, complying obligation with the visiting military the duties of personnel and polit States avoid intervention in United organizations are quite separate through military affairs forces.8 It ical political from such activity, and by very unseemly possibly disrup would be meaning with which word has come to military least the had the tive—or be used. In the latter connection there consider it so—for members of the mili comparison seems no valid between the tary engage in demonstrations in the “demonstration” word and other words political no what host matter inter points which as out have being pressed. was The been treaty and the est involve, contexts, held to in various imper in operating interest in a vagueness, missible including foreign country “gang”.10 are not to be stated in following comment from Greer v. partisan political activity, po terms but Spock, supra, at n. has at tangen least e., activity general, i. “of per litical or bearing: tial taining policy, or or the politics, conduct of, pertain ... or . The decision’of the military to, functions, the exercise of the ing vested a civilian authorities that lecture drug charged abuse, those with the religious conduct of service visiting government.9 preacher chapel, at the base or a rock musical concert would supportive question, especially Vietnam re- mission of Fort surely Dix war, participation spect highly did not leave the authorities powerless discussed, no matter where political, prevent any thereafter civilian from impact political even emotional entering Fort Dix to speak any subject as it involved United States whatever. political less because it was exploited with and in a friendly dealt for- The appellant argues that the mili country. The eign tary judge’s demonstrations involv- definition of “demonstration” it ing were of a kind within the military’s as used in his instructions to the jury to avoid province treaty possi- under though too broad even the word had ac embarrassing to the host bly quired gloss if some status-of-forces— any subject demonstrations or political protest sense interest dissent— 8. The Status-of-Forces is necessary present Agreement, any political activity U.S.T. well ‍​​​‌​​‌​‌‌‌‌‌‌​​‌​​​‌‌‌‌​‌‌‌​‌​​​​​​​​‌‌​‌​‌‌‌​‌‍activities civilian provides: 1792, also the receiving as their T.I.A.S. No. at 1796.” component inconsistent with “It is the measures to duty dependents States of the 2486, and the members thereof as and to abstain from in and, duty Treaty, art. sending that end. in of II, receiving respect particular, in a [1951] U.S.T. pertinent part force and its state to spirit the law of ^[1951] state. 4 of take any It 4 9. gang activity; political gang. good scouts and whitewash the widow’s sense that has. quents; here; text of crime ed. Webster’s Common (1956). E. railroad g., Gang that old “demonstration” New usage has gang; gang of International far from of funmakers; such a term in come on mine; in crystallized political Dictionary, gang gang gang’s of let’s be context in fence; delin- con- 2d all

629 gloss of common knowledge been used. and modern it could have arguably in was as follows: ordinary person. in in the mind of the usage instruction same token the definition itself By the Final Instructions From a sufficiently could mark certain line be- prohibited guilty properly find the accused tween demonstrations you may Before specifications, of these presentations or both or of either beyond a reasona- satisfied must be you meetings legitimately to which it could not organized by activity doubt Indeed, ble it is not apply. unreasonable to as “Peace” for known organization suppose undisputed clearly that the facts so London, 1971, Eng- May 31st of any a “demonstration” proper reveal as this land, a demonstration was in fact any imperfection render sense as to in defi- Regulation Air Force is used word assuming non-prejudicial, nition that we determination, making this 35-15. to review the position sufficiency were in a whatsoev- no consideration give you must in view the instructions constitutional communication, or any publication toer Secretary But see implications. Navy unofficial, you or official either Avrech, U.S. prior heard or might have seen sequel 1033 and its Avrech v. L.Ed.2d Secre trial, purposes you оf this For the trial. Navy, U.S.App.D.C. tary apply following defi- accept and denied, cert. F.2d nition: (1976). L.Ed.2d See public showing is a “A demonstration Councilman, Schlesinger v. also large group assem- display or 43 L.Ed.2d 591 feelings, sympa- such as persons bled may, firmly as it it can be con- Be this antagonism, especially or toward thy definition, matter cluded no what public or action of in- a cause person, might be of its our views technical suffi- is a demonstration for a It terest. not have ciency, did determinative intentionally crowd to assemble large upon bearing or indicate conviction and against favor for justify or attitude. It can would not itself certainly action invali- some official public as a exhibition of defined also be dation of court-martial. result condemnation; welcome, or approval of the full An examination instructions re- feeling.” manifestation public following the in ques- veals that definition jury tion the was told effect that could likely precise wording seems It convict the if it defendant found prac- have made no instruction could thought the accused it was not “demon- validity difference in the or reviewable tical stration”, as that term was used the Air conviction; dictionary definition regulations, they Force or if had a reasona- itself, although language its disconnected whether he thought as to so or meetings of a differ- ble doubt extended might be nature, taken on the In this sense the still have not.11 accused had the ent weigh tending proba- should and consider the has been introduced inherent “Evidence that, improbability bility relating 24th and the 31st of of the evidence both on the show regard, you may May Captain the belief was under thereto. In this consider the Culver education, planned by organi- age, experience the Peace and back- the activities accused’s May ground, together was not a with all of the other London on 31 relevant zation for demonstration, is used in Air as that term circumstances. respect Regulation With to this 35-15. Force upon prosecution “The burden is to es- evidence, you that even if the court are advised guilt by legal compe- accused’s tablish the beyond a reasonable doubt that this concludes beyond a reasonable doubt. tent evidence Con- demonstration, “presentation” was in fact a if you beyond sequently, unless are satisfied laboring under such a mistake accused was doubt that the accused was not hon- reasonable reasonable, was honest and his mistake and if reasonably estly under the mistaken belief guilty of either offense. he cannot be found 1971, May the aforesaid that London on 24 honesty determining the issue of reasona- demonstration, you was not a must incident mistake, alleged you the accused’s bleness of Specification. acquit Charge I and its him of possible definition —his any participate in that very best demonstration was in own. violation of his rights. constitutional that suggest It is not meant to initial question 1. The for this court is judge’s instruction would have scope thus the of our review on collateral appellant’s conviction if AFR 35-15 saved judgment attack of the general of a court unconstitutionally vague or over- had been martial. Collateral attack aon court mar- It was not. Screws v. United broad. judgment is possible tial’s judg- where the States, 1031, 89 L.Ed. jurisdiction ment is void for lack of or for suggest (1945), any does not that con some other fundamental defect. Schlesin- problem was renewed or created stitutional Councilman, ger U.S. validity instruction. There the by 1300, 43 (1975). L.Ed.2d 591 The Su- upheld was statute as con preme suggested Court has that whether point of the stitutional. reversal was judgment may such be deemed void jury should have been instructed turn on “the nature of the alleged defect, finding that for a of “wilfulness” as con gravity and the of the harm from which by the statute templated gen more than a sought.” relief is U.S. erally purpose required. had was If the at 1310. It added that “both factors must trial court in Screws in effect had left the light be assessed in of the deference that interpretation of the term to whatever the should be accorded the judgments of the meant, thought had it defendant seems carefully designed military justice system unlikely Supreme Court would established Congress”. Id. ground reversed on the have the in This court has held that a claim of viola prejudicially struction erroneous. tion of constitutional permit several why There are reasons we should federal courts to make attempt inquiry to do so not in this case—the ab into court martial convictions. possible prejudice, Kauffman sence consti v. Secre Force, tutionality regulation itself, tary of the Air and at U.S.App.D.C. (1969). very clouding least the of our 415 F.2d 991 authority We have also recog so the collateral special to do nature of the nized the role played by the Court of upon attack present pro a court-martial Military Appeals, a court of civilians which ceeding governed distinctively by military has “indicated readiness apply to men law. service the protection of pertinent Court decisions based on judgment of the district court is af- grounds.” constitutional Levy Corcoran, firmed. U.S.App.D.C. 389 F.2d LEVENTHAL, Judge, denied, Circuit concur- cert. ring: 19 L.Ed.2d 369 Thus in Levy v. Corcoran, this court refrained from inter join Judge opinion Christensen’s fering prevent a court martial partially concurring the court. This opinion is more on the grounds the constitutional anguish disagree- an indication than of claims raised petitioner could be ment on fundamentals. It also identifies presented to general court martial and regard highlights what I as the of the case. in due course to the Court Military Ap We here asked to review the general peals. a captain court martial of case, however, Corps Advocate General In this petitioner Air Force. He claims that his conviction for not able to obtain review by the Court of in a participating Military Appeals. Indeed, demonstration in London his sentence was soliciting other military personnel sufficiently severe to entitle him to an you beyond May Unless are satisfied a reasonable the aforesaid London incident honestly demonstration, you the accused was not acquit doubt was not a him reasonably Specification.” Charge under the mistaken belief on 31 II and its issues, any thе Force Court of tutional taint to Air removed of un- appeal automatic appellant to as an Review, Judge and Advocate fairness individual.1 Military the acquiesce in a discretion- to refused General insofar as Lastly, appellant’s challenge to appellant’s constitutional appeal. Since ary the vagueness of regulation the rests on its any by ap- thus not reviewed claims others, unfairness to his potential conten- civilian, court, military or I either pellate expressly by tions are foreclosed Parker v. them almost as approach free to feel 733, 756, Levy, 417 U.S. I a member of Court of though were (1974). L.Ed.2d 439 review. Military undertaking direct Appeals also the Air Appellant attacks Force that AFR contends Appellant He claims regulation overbroad. that it person- 3e(3)(b), prohibits military which in that it prohibits defective is even those K in demonstrations in which participating endanger nel demonstrations do countries, vagueness, foreign is void for country. with host relations overbreadth, inalienable and violation of his contention, analyzing In I am con believe, however, that the term rights. begin premise to strained that men gave adequate notice to “demonstration” serving in women and have less activity prohibited. his was appellant engage to in political freedom than activity is the essence of “demonstration” overt citizens. It is unfortunate that those “demonstrative” public of display to their country required who serve activity. United States v. expression or See sacrifice, makе this additional but the Su Alexander, (CMA) (1973), 47 C.M.R. 786 preme recognized has that the special Court Bradley, 418 F.2d States United quoting structure mission and of the armed forces 1969). fairly charac- (4th Cir. This may require unacceptable restrictions else group ap- the activities terized society. where Parker v. joined join. urged others pellant 2547, 41 L.Ed.2d 439 assemblage have lacked their While Indeed, (1974). the need for a military of more obtrusive characteristics some appears is and to be politically neu buttons, placards, of some to justify held tral has been restrictions on demonstrations — marches, purpose essential of as- etc.—the political activities of even citi ordinary sembling people was to large group place they take zens when domestic mili public attention attract tary Spock, Greer bases. opposition war. manifestation 47 L.Ed.2d 505 Moreover, there to the extent was stationing In case the American ambiguity regulation, instruc- foreign soil troops special creates need given requiring the court political neutrality. presence tions martial — appellant event that honest- acquittal in a troops inevitably land cre- that the London reasonably believed issue for the ly political ates host govern- its military political not a demonstration —insured al- ment —whether incident appellant fairly convicted. While liance with the United States is advanta- by dispose geous. did not of all consti- Political demonstrations instruction Ameri- verdict, reaching misunderstanding pervades the court Chief wаs not A1. clarificatory he statement what describes limited to the issued Bazelon’s articulation superior, appellant’s have of reference to but could considered extension” an “unarticulated my opinion concerning is and circumstances his What meant all the facts instruction. sufficient, actions, including language convey regula- is that tion, background appellant training give adequate the test of notice understanding. ordinary, And sense There was common his conduct. evidence to course ordinary by any negativing any support lacks such de- if chance the determination “infirmity” only understanding, if even honest and belief fense of reasonable steepage appel- product federal some was not a London incident demonstration. protection opinions he had extra late —then instruction, safeguard beyond giving him required the Constitution. may on this to impact predict. have an understand or The can servicemen effect of an on our American are both incident relations with a host troops Because coun- issue. may depend on try matters of instruments American attitude of symbols foreign government within that simply their actions are likely more foreign policy, be adduced in cannot a court martial.3 In- impact significant than those of to have a dividual servicemen cannot demand the like tourists business- visitors individual predict to or determine which demon- Thus, treaty our Brit- with Great men. prove disruptive strations or embar- there is Ameri- recognized,2 a need for ain rassing in our relations with the host cоun- political to refrain from troops can abroad justification is try. There constitutional demonstrations. ban on a broad off-base demonstrations by circumstances, application Under these troops abroad. our familiar doctrines overbreadth does not turn last to appellant’s 5. I contention doctrine appropriate. seem Overbreadth engaged that he in presenting peti- champion to permits one individual tion to our Ambassador in London for for- rights of others so that a First Amendment Washington to warding ‍​​​‌​​‌​‌‌‌‌‌‌​​‌​​​‌‌‌‌​‌‌‌​‌​​​​​​​​‌‌​‌​‌‌‌​‌‍and that his activi- expres- social interest in uninhibited broad ty therefore deserves special constitutional Gooding v. might furthered. Wil- sion be There protection. in evidence the record son, 405 U.S. the demonstration was originally (1972). But in L.Ed.2d 408 place to take scheduled the American especially community, and when American London, Embassy, in and that the site of abroad, troops are stationed the interest in assemblage changed Speakers’ to Cor- to political expression yield Hyde in Park at request ner of an Levy, Parker v. needs. Cf. U.S. official Scotland Yard. But the record L.Ed.2d 439 also reveals event was from the event, any regu- 4. In breadth of as “a projected large start assembly” and constitutionally jus- here is lation attacked that it was the size of assembly which, are always complex tified. and un- Politics order, public the interest of required in the nuances predictable; foreign politics plans. petition modification A could may particularly be difficult for Americans presented eye-catch- have been without the provides prohibit vanced in the dissent. Force engaging not find the problematic ly conspicuous on our are not “in the ^[1951] To tivities necessary receiving present Agreement, component as their U.S.T. any political It is also the contemplate receiving political It is agree a ban that adopted, Treaty prohibits bases 4 U.S.T. is not American inconsistent with the dependents that the States pertinent measures political language state." “demonstration” which the Air duty of or duty to concede the is the activity the dissent receiving within our and to servicemen Treaty attention-getting members thereof as well kind of to part: discussions T.I.A.S. No. a force and its civilian and, “any What to that end. my respect operates abstain from sending state”. was not intended to view, asserts. political embassy grounds prophylactic Treaty construction particular, receiving the law of the Treaty actions taken spirit state Hence, in the host activity voting inherent- ^[1951] activity. art. seems be as state. from take ban ad- ac- do II, 3. The dissent lands, Norway but at 639 of 559 F.2d that interests tiation of such treaties must only by country of the residence of armed forces. ports to this effect.” governments les embarrassment —to France, host, ment This host the armed services even is a multi-lateral relations be room for relaxation also is so embarrassment. be goes beyond extreme to guest. Iceland, the United States and Great general willing displeased by by Belgium, foreign governments says are often with it forcеs on to send a construction Italy, Luxembourg, Nether- at-of Arrangements have to Portugal. mere one’s NATO intended It “[i]f their soil. may a demonstration that punctilio. spokesman Canada, self, harmed, testify treaty, signed depending This factor respect assuming foreign govern- who are asked U.S.App.D.C., restraint used embarrassing avoid concerning others, Moreover, Denmark, surely to the full Britain, foreign on the testify prick- nego- there sup- Moreover, reasonably where one could not it was in aid of understand assembly. ing contemplated of the assem- conduct pro- increase the size effort to ” dur- passed out leaflets Parker scribed.’ bly that I Hence must find 94 S.Ct. preceding week. L.Ed.2d the ing Appellant argues to same AFR is not entitled the that 35-15’s appellant that simply presented a on is prohibition one who “demonstrations” too im- protection the give requisite notice. He precise the Ambassador. petition that the term law constitutional that by should be decided Military Appeals in United by Court thereby the court would be converted into Alexander, 22 47 USCMA States of fact questions jury for the and be effec- (1973),confirm that the divid- 786 line CMR insulated tively appellate review. (but ing illicit demonstrations from similar Moreover, a defendant could be convicted illicit) is fuzzy not activities at best. violating for a constitutionally defective Judges Both and Leventhal Christensen ground on the statute that he happened to portion military judge’s to a refer be unaware its defect. instructions to bolster their conclusion that my colleagues’ ap- Given conсession that any ambiguity unfairness resulted from no pellant’s knowledge actual is irrelevant to regulation. apparent With no vagueness, the issue I am puzzled by thought claim, appellant’s vagueness about judge’s their reference to the instruction. judge trial instructed the jury as to Having concluded regulation that the is not defense mistake in In fact. vague, they rely evidently on jury’s appellant, military jur- to convict order of appellant conviction in the face of that required to find ors that he was not to assure instruction themselves that Culver laboring under “an honest and reasonable any rate knew he inviting at prosecu- presentation as to mistake” whether his by tion conduct. The unarticulated ex- was a petitions “demonstration” within the of this tension is conclusion that he is now meaning of AFR 35-15. Rec. 499. a raising purely objection technical by argu- My colleagues deny any suggestion that ing appeal regulation that was, by instruction cure vagueness could if it objective standard, an vague too to have existed, emphati- a disclaimer with which I given required him notice by proc- due cally agree. Vagueness is objective is- Unfortunately, ess.2 this conclusion about States, In Screws 1. v. United that is nite undefined. But willful violat- S.Ct. L.Ed. defendant requirements, ors of constitutional which have had § been convicted under 18 20 for defined, U.S.C. certainly position say in no been are depriving prisoner right protected by of a they adequate that had no advance notice that Constitution, right deprived not to be of life they punishment. would be visited with When process apрeal, without due of law. On they willfully in act the sense which we see argued defendant the statute was uncon- word, they open act in defiance or in reck- stitutionally vague incorporation because its disregard requirement less of a constitutional process, changing concept, due a broad and specific which has been made and definite. provided guilt. no ascertainable standard of To they acting, they When are convicted for so statute, save the Court it construed to re- violating punished not an unknowable quire specific deprive person “a intent to of a something.” (em- Id. at 65 S.Ct. at 1037. right federal definite made decision added). phasis rule of U.S. at law." 325 at “The fact the defendants not have Leventhal states: “While the instruc thinking been is constitutional terms not dispose issues, tion did of all constitutional material aim where their was not enforce taint of it removed unfairness to deprive right local law but to a citizen of a - U.S.App. as an individual.” protected At of 182 the Constitution.” D.C., at of 559 Id. 1037. The F.2d. Court added: course, “Of willful conduct cannot make defi- protest. legal is as factu- defendant’s no basis knowledge find of Culver’s the state for the legally majority’s proposi- as it is irrelevant.3 case law first ally unfounded tion, no factual in the record basis II. OVERBREADTH second. per- is “overbreadth” claim Appellant’s Broad, Flat Ban of AFR 35-15 A. is He not contend haps does misnamed. Unconstitutional it unconstitutional because 35-15

AFR ac- clearly protected others’ facially reaches my knowledge, To no Court case. indeed, light the restriction tivity;4 upheld has broad curtailment of first standing announced in Parker rights comparable amendment to that 733, 758-60, 2547, 41 AFR worked 35-15. Its ban on demon- (1974), he do could not so. L.Ed.2d absolute; requires strations no individ- claims Rather, appellant ual determination that given protest to his own applied is unconstitutional affect a substantial interest. activities.5 my colleagues’ Both of opinions contain claim, my colleagues rejecting this sanctioning the proscription statements flat first, on two argue seem levels — AFR 35-15. These warrant close exami- permits the Government Constitution nation. all demonstrations broadly prohibit AFR argues 35-15 appellant The military personnel, regardless foreign-based interpreted to demonstrations be ban should setting; factual particular they have found threat- when been only facts case show a second, that of this hosting country with a our relations en justification this proscribing for compelling appellant’s question prosecution mistake refuted from this source. The first argued was 3. The not by putting evidence a state- defense into of fact trial or in the briefs to this at court. by ap- 13) prepared (Prosecution exhibit (while ment pellant’s Flatten, The second was raised at trial superior, Major Franklin P. immediate out) jury but left unresolved. was was Rec. Advocate, Judge 48th Combat Staff 473-75. part: Group. Support This stated in document judge’s accordance with the trial In instruc- recently publications offered protest have "Unofficial tions, jury also could have surmised that legality opinions certain as to the аppellant knew his activities would consti- opinions are in- activities. Those dissent and correct that “demonstration” banned AFR tute a 35-15 personnel All are advised education, “age, experience of his because background” 35-15, 3e(3) paragraph Dissent AFR e., lawyer. because he was —i. Activities, prohibits specifically Protest legal appellant’s training how to see I fail proves military personnel participation dem- knew that he “demonstration” encom- foreign country. prohibi- The in a onstration tion woman is on or presentation petitions. passed If I his had applies or service- whether serviceman shoes, appellant’s might too been have uniform, base, on or off in or out military that the could constitu- concluded tionally duty. applies It also in full force off proscribed, have and therefore would given irrespective of what term or name reach, regulation have intended its not kind of timing of this docu- demonstration.” the ment indicates activity. specifically that was directed Hence, support was there little evidence to presentation; planned I assume finding implicit appellant must have interpreted appellant it. must have so proscribed by his conduct was AFR known presented appellant on This statement e., 35-15. 26,May he the acts of after had committed i. Thus, underlying Charge May too I. it came Gunther, and Materials on 4. See G. Cases Con- notice, hardly apparent appellant give late Law 1132-42 stitutional reading of that his facial AFR from a soliciting leaflets constituted distribution other regulation. assume, purposes discussing 5. We personnel lawful Force to violate a Air claim, appellant’s presentation peti- squarely proscrip- fell within AFR 35-15’s tions II, Charge have As for statement Thus, regula- the issue is not whether tion. prohib- put appellant notice AFR 35-15 on protest, properly applied to his tion was but May only presentation planned if ited applied to it whether regulations by (1) interpretations of the source constitutional. the force issued this statement carried that law, (2) the its face issued statement on endanger some other important or to troops troops abroad to political refrain interest, either because of the government demonstrations. politi- or because of the of the style -At of 182 U.S.App.D.C., at 631- Judge response, issue involved. In cal (emphasis 632 of 559 F.2d added). states: Christensen colleagues’ my premises, With I whole altogether reads too nar- heartedly agree. It is their conclusions I military interest of the in com- rowly the Judge reject. Christensen explain fails to treaty obligation plying government why the avoiding interest to avoid intervention in United States “unseemly and possibly disruptive” demon through political affairs justifies strations prohibition absolute unseemly be It would forces. [] political “no matter what interest was be disruptive at least the mili- possibly —or and, ing pressed” we may assume, no mat right to tary had the consider it so—for orderly ter how and lawful protest. engage members Putting aside for the moment whether an host no demonstrations absolute ban on all demonstrations is re political being what interest was matter quired by treaty,6 I cannot believe that all pressed. protests by servicemen abroad will un - U.S.App.D.C., At of 182 at 628 of seemly and disruptive; if solely aimed Similarly, Judge Leventhal states: 559 F.2d. domestic American issues and conducted in stationing this case the of American law, accordance with local such demonstra troops foreign soil special creates a may carry tions little or impact locally. no political neutrality. need The pres- Nor can I believe —as ap Leventhal troops ence of our in a land inevi- pears to —that the risk that some demon tably political creates a issue for the host might strations harm our foreign relations its military and —whether likely is so to occur or would be so devastat political alliance with the United States is ing consequences in its if it did occur that it advantageous. Political demonstrations justifies precautionary ban on all demon may by American servicemen have an strations without inquiry into individual circ impact on this issue. Because American umstances.7 troops are both the symbols and instru- Perhaps ments of American real rationale for foreign policy, Judge likely more Christensen’s conclusion actions to have a lies in the signifi- line —“at impact military than those least the right cant of individual visi- had the to consider like tourists Thus, tors it so.”8 I read this businessmen. statement expressing treaty our Great Britain recog- judicial familiar deference to military judg- nized, there is need for American ments. However tempting [] it be to U.S.App.D.C., infra at---of See 182 impossible 6. bring authorities it was assuming at 640-641 of 559 F.2d. Even segregation disloyal about an immediate of the that AFR 35-15 is mandated the Status of loyal,” id. at from the 65 S.Ct. at 195. In treaty, law, superior Forces the Constitution is words, principle the Court sacrificed the though treaty obliga- I am mindful that a clear of individualized determinations and sustained weigh heavily tion would first amend- deprivation a broad ‍​​​‌​​‌​‌‌‌‌‌‌​​‌​​​‌‌‌‌​‌‌‌​‌​​​​​​​​‌‌​‌​‌‌‌​‌‍of fundamental constitu- ment balance. rights gravity tional because it found the of the danger great, so the likelihood of the harm so Compare States, Korematsu v. United 7. 323 substantial, availability and the of alternatives (1944), U.S. 89 L.Ed. 194 so, majority opinion nonexistent. Even upheld military which the Court stinging evoked dissents and has continued to ordering the exclusion from the day. be criticized to this Japanese West Coast of those residents of an- cestry. Stating “[njothing appre- short of Judge military 8. Christensen also proper military states: “The hension authorities of defining gravest danger public implementing had wide latitude imminent to the safe- ty constitutionally military justify necessity can interest and [this sort of dis- these re- criminatory deprivation],” spects.” id. at U.S.App.D.C., 65 S.Ct. at 628 At-of 182 upheld only Court order because it of 559 F.2d. reject finding military “could not

637 always complex Politics are and unpre- authori- military matters leave challenges military dictable; ties, foreign politics amendment the nuances of first scrutiny careful the same merit regulations particularly difficult for Ameri- may be example, For regulations. civilian accorded predict. understand or effect cans 828, 96 S.Ct. Spock, in Greer on our relations with a host an incident up- (1976), the Court 1211, L.Ed.2d country may depend on matters of atti- campaigning on-base against a ban held foreign government within tude revealed that thorough analysis after only be adduced in a mar- simply cannot court justifi- “heavy burden had satisfied servicemen cannot Individual de- tial. significant restriction “any cation” predict or determine mand Id. at carries.” freedoms Amendment First prove disrup- demonstrations will J., concur- (Powell, at 1220. 843, 96 S.Ct. embarrassing in our relations with tive or true that Parker ring). It is country. There is a host constitution- 41 L.Ed.2d 733, 94 S.Ct. extensive discussion contains for a broad justification al ban on off- civilian and between differences troops demonstrations base is to of that discourse purpose But law. abroad. standing prin- restrictive why more explain U.S.App.D.C., At---of vague- facial overbreadth9 ciples Judge Leven- 630-631 of F.2d. govern challenges military should ness substantial, not, think, point thal’s but support slight loosen- and to regulations, course, Of a broad rule persuasive. without vague- standard for substantive ing of the exceptions or easily ap- conditions is more does not hold that Parker claims.11 ness than one plied requiring individualized de- generally warrant a considerations those guarantees re- It also standard of terminations. none more deferential laxer harms pass. view.12 of the feared will ever come to protects higher But the first amendment opinion suggests yet Leventhal’s values than convenience and freedom from upholding pro- the broad reason for another Even when the 35-15: risk.13 Government has of AFR hibition statement, U.S.App.D.C., 9. 2547. at---of U.S. at See 417 Thus, at 632 of 559 F.2d. there is no 756, 94 10. 2547. See id. at anything searching less than the basis here normally accorded review first amendment 756-57, 94 S.Ct. 2547. See id. at challenges. Arguably, a distinction to be drawn there is military regulations challenges to between brought 13. In contesting a case whether school officials initially requiring court nor in federal prevent wearing students could armbands Spock, supra) (e. g., and Greer mal review protest, found the Court that the as an antiwar by way challenges of. collateral attack on made justify risk of disturbance did not mere requiring military more limit convictions court expression. system, prohibition “[I]n (e. g., ed, Parker v. review deferential apprehension fear or undifferentiated distur Councilman, Schlesinger supra, 420 U.S. and enough right to overcome the is not to bance 1300, (1975)). 738, 43 L.Ed.2d 591 95 S.Ct. expression.” The held freedom of Court rest on “the deference This distinction expression, prohibition of this form of the “at judgments of the be accorded the that should carefully designed necessary it is without evidence that to least system military justice es and substantial avoid material interference Schlesinger by Congress.” v. Coun tablished discipline, or schoolwork is not constitu with 1310, 753, cilman, S.Ct. at see at 420 U.S. tionally permissible.” Tinker v. Des Moines 758, degree 1300. The 95 S.Ct. also id. District, 503, 508, 511, 393 U.S. 89 S.Ct. School military paid to a that should deference 739, 733, (1969) . 21 L.Ed.2d 731 however, logically judgment, turn court’s prosecution Similarly, the of a in defendant “military decision to which on the extent wearing jacket displaying the words fairly allegation fully with and an has dealt Draft,” upheld the state court had “Fuck the system of courts. Burns v. raised” in statute and conviction 142, 1045, 1049, offensive conduct Wilson, 73 S.Ct. 346 U.S. might ground case, conduct only that “such cause (1953). present In the 97 L.Ed. 1508 up to rise to commit a violent military judge passed others act trial person attempt against the defendant or claims. See Leventhal’s constitutional protest. speech prevent Similarly, to subversion or prohibited military judge trial insurrection, Supreme Court has de- ruled that the broad ban of AFR 35-15 was individualized inquiry manded an into constitutional without determining, himself defendant’s acts particular whether the and find, requiring jury or to the appellant’s truly words threatened nation’s securi- any government affected interest ty.14 any fashion whatsoever. there an Never was individualized deter- no threat to see national interest by mination command or mili- requiring servicemen permis- to secure the appellant’s protest infringed court that tary sion of their engaging commanders before ban interests. The on demonstra- public abroad, demonstrations and re- one; given appel- tions was a flat the notice quiring those by superiors interpreted justify commanders merely lant apply planned that ban to to his already give permission specific refusal with rea- forceably jacket.” Supreme remove his stand inquiry outside the first amendment. No replied: Court was made whether individual defendant’s plain- The rationale the California court is speech govern- own acts and threatened the ly untenable. At most it an ‘undiffer- reflects response, In Justice ment. Brandéis attacked apprehension entiated fear of disturbance failure to examine Court’s for itself the enough right is not to overcome the [which] present question danger and of clear as raised expression.’ to have been shown no evidence that substan- tial strike out . freedom of We by the facts of the case before it: rights Whenever the fundamental of free standing ready are numbers of citizens assembly speech alleged are to have may physically at whoever assault invaded, open been it must remain to a de- their sensibilities with execrations like that present fendant to actually the issue whether there by per- uttered sons Cohen. There be some danger; did exist at the time a clear with about such lawless and violent danger, any, imminent; whether the if proclivities, but that is insufficient base apprehended whether the evil was one so erect, upon consistently with consti- justify stringent substantial as to restric- values, governmental power tutional interposed legislature. legis- tion persons force who wish to ventilate their declaration, lative like fact that the stat- particular avoiding dissident views into passed ute was sustained expression. forms of State, highest merely court of the creates California, Cohen v. 403 U.S. presumption rebuttable these conditions (1971). 29 L.Ed.2d 284 have been satisfied. long dealing A14. line of Court cases (concurring). Id. at 47 S.Ct. at 649 speech with subversive has established this position eventually pre- Justice Brandéis’ principle. Beginning with Schenck v. United prosecutions vailed. In the Smith Act States, L.Ed. 1960’s, early Court construed the member- the Court held that “[t]he require ship proof of the Act clause “clear every case is whether the words used used ‘specifically that a defendant complish to ac- intend[s] in such circumstances and are of such ‍​​​‌​​‌​‌‌‌‌‌‌​​‌​​​‌‌‌‌​‌‌‌​‌​​​​​​​​‌‌​‌​‌‌‌​‌‍a nature organiza- subversive aims of [the present danger to create a clear as they Congress to, resort tion] the violence” that he have bring about the substantive evils that “specific bring intent ‘to about the over- prevent.” ahas Id. at speedily throw the as circum- ” permit.’ stances would Scales v. United Subsequently, presented the Court was States, 203, 229-30, legislature statutes in' which the had itself words, 6 L.Ed.2d 782 weighed danger, concluding “to know- suggested enough Justice Harlan ingly organizing is not be or become a member of or assist in advocate, Congress Party that threatening finds the an association to Communist so teach or security aid and abet the commission of lawful acts of involves such the or to the national crimes un- that mere force, knowing membership constitutionally violence or terrorism can be danger public peace punished. The crime must also include State, security that these acts should bring element individual intent to about ” penalized. Whitney . v. be . Califor- justify Party evils those that controls on the nia, 357, 371, 274 47 U.S. S.Ct. 71 Thus, conflict, itself. to avoid constitutional (1927), by Brandenburg L.Ed. 1095 overruled v. required an Court individualized determina- Ohio, 395 23 U.S. L.Ed.2d important government tion that an interest— (1969). 430 there, prevention of incitement to unlawful Initially, legisla- the Court deferred to the by conduct—was threatened words or deeds. that defendant’s membership judgment that ture’s organizations mere thesе endangered so the state as to permit first many parade cities’ ordi- Like amendment does not keep sons. host coun- pro- allow for nances, proscribing scheme would tries from demonstrations by visiting troops when U.S. adjudications disputes any more than it spective does by Moreover, their own I see no threat to na- citizens. Similarly, if Ameri- arose.15 requiring can servicemen violated the Govern- such tional interests local laws properly would they subject be ment, prosecutions for viola- discipline criminal in its military authorities by U.S. regulations, and related within 35-15 tions of AFR terms of our treaties with that nation. defendant’s activi- that the prove by addressed the present situation case is important govern- affected ty fact different, however, quite for here the local interest, maintaining amicable such ment English apparent authorities made no at- hosting troops. countries our with relations tempt appellant’s to constrain activities agree Leventhal that I do not police from traffic and apart considerations. within foreign attitude “matters power government of local Given simply . cannot be government public protests given control power foreign court martial.” If a in a adduced punish of U.S. authorities to by displeased is so a demon- government troops law, for violations of local I see no our relations with it are stration justification broad, prohibi- absolute harmed, surely willing it would be to send a tion of AFR 35-15 upheld construed to this testify effect. Or spokesman majority. Military authorities feаsible, surely is not where that doubtlessly power proscribe need demon- offer evidence to can substanti- government even strations when local law is not violat- claim that demonstration ate its ed, require but I would that the exercise of harmful, if in fact it is. power tightly more tied be to some past risk or showing future harm to an government substantiated substantial interest, prose- important government interest. need not proof heavy. burden be cution’s signifi- example, any demonstration For B. Insufficient Has Justification Been cantly affecting our relations with host Proscribing Appellant’s Shown for proscribable. be country should Whether Speech reasonably justi- agreed it is AFR 35-15 Once should issue; taking offense would not be at fied require be construed to an individualized have to prove only would the Government showing important to some detriment on effect our relations significant that a interest, the issue becomes one already occur or had oc- probably of mixed fact and law—does record particular of a demonstra- curred because words or show deeds so tion.16 harmed valid interest as to lose dis- It to remember we are protection? is vital their constitutional The major- country’s only this restrictions cussing ity seems answer this as an ground while servicemen do abroad. The alternative to its holding, what its broader “ Gunther, (Hand, J.): F.2d Cases and Materials on Ch. ‘In each 15. See G. case Law, gravity 1204-06 Constitutional ask whether [courts] Maryland, “evil,” improbability, justifies See also Freedman discounted (1965) (prior re- L.Ed.2d 649 speech necessary such invasion of free as is ” Books, films); Kingsley Inc. v. straints danger.’ Although avoid flexible Brown, 1 L.Ed.2d been undercut standard has subversive books). (prior (1957) restraints on Ohio, by Brandenburg speech cases L.Ed.2d governmental interests than mainte- 16. Lesser useful in cases where the remains relations with countries amicable host nance of content-oriented, requires less and therefore showing stronger probability require a searching review than mandated less speech may pro- before effect harmful present stringent danger” “clear and test of States, Dennis v. United 341 U.S. scribed. Cf. Brandenburg. 857, 494, (1951), L.Ed. 95 1137 Dennis, Cir., quoting v. States 2 183 United pro- peace. at compelling justification finding Government has of- scribing appellant’s protest on facts explanation fered no for how discipline or disagree. I Again this case. could have significantly morale been by presentation harmed the mere peti- had advanced several The Government to the tions ambassador under these circum- military justify in- interests said stances, do see nor how the Government appellant’s first amendment fringement of so of arguing could do short district court relied the mili- rights.17 The on order, “good discipline, tary empowered should be first of all stifle dissi- these — admittedly morale.” This substantial communications dent in the interests interest, see Parker v. government maintaining servicemen’s unquestioning ad- by was found policies. official herence to justify this court My colleagues rely two on the second time, curtailing place and manner interest by appellees advanced rights be amendment could exercised first —“maintaining amiсable relations with for- Schlesinger, v. in Carlson U.S.App.D.C. eign Appellee’s countries.” Br. at 35. The (1975). However, 511 F.2d on prohibition demonstrations is said to be signatures case involved the solicitation of grounded more diplomatic than a desire petition on military for an antiwar base in the appearance to avoid of our meddling in a Vietnam combat zone. Whatever affairs; other nations’ it also springs from discipline danger by morale caused treaty agreements hosting with countries setting,18 that act in that I cannot how see military personnel.19 United States Article presented danger by the much lesser appel- provides: treaty II of the justifies the lant’s behavior even more dras- duty of a speech It is the force tic curtailment .caused a flat and its civilian all component ban on demonstrations. The conviction and the members thereof activity off occurring here was for base in a dependents well respect Alexander, morale, except suggest 17. In United States v. USCMA that other service- Military objected 47 CMR 786 Court of might violently men have to the views Appeals purpose Army Regu- described the expressed petitions. in the The court’s stan- proscribes foreign lation demon- unquestioningly dard was deferential: “Be- language strations identical to AFR 35-15: judges ill-equipped guess cause to second regulation’s purpose was mili- “the to establish command decisions made under the difficult tary neutrality in connection with causes ‘for maintaining circumstances of pline morale and disci- ” which the demonstration conducted.’ zone, ain combat ... we should equated purpose court with the traditional upset not such determinations unless the mili- aversion to “a man on American a white tary’s infringement upon first amendment horse” and intrusion of the into the manifestly rights legitimate unrelated to mili- political arena. tary (emphasis interests.” F.2d justification is This inconsistent with those very added). lax This standard of review is put present forward Government disturbing enough in a combat situation. Cf. case. It should also be noted that the States, 214, 216, Korematsu United explicitly Court has stated that the Alexander (1944) (even during 89 L.Ed. 194 justification support curtailing public cannot military emergency, racial classifications must speech by off-duty, nonuniformed servicemen subjected rigid scrutiny”). “to most I do off while base United States. See Greer not believe that Constitution allows the (Stewart, J.); Spock, of such a extension deferential standard of re- (Powell, J., 96 concurring) (“Nor 47 L.Ed.2d 505 settings. exigent view less any prohibi- could there be handing holding out tion on leaflets and cam- trial, 19. At the Prosecution stated: “The base.”). paign rallies outside the limits of the not Government does contend that AFR 35-15 government’s keeping If interest the mili- enforcing was written with a view toward Arti- politics tary sup- out of United States Treaty Organiza- cle II the North Atlantic [of port ban all demonstrations servicemen tion, submit, Agreement]; Status of Forces we States, stationed in United that same inter- however, provide does a method for the hardly support a ban est can flat abroad. Department of Defense to enforce within its dissent-, (from 18. The court in Cаrlson which I system justice, violation Agreement.” that Article of ed) specify signa- how the did not collection of that NATO/SOFA Rec. 19. petitions endangered discipline tures on

641 cussed, impact and even the emotional and to abstain of receiving States of the law with the inconsistent it any political question activities that involved the from and, Agreement, present spirit politi- was not the less United States activity any political from particular, cal was dealt with and exploit- because receiving state. friendly foreign country. ed in a pression ^[1951] II. history, I believe ty” first American if sions. tivity such as should text dictates sistently activities Although cannot amendment provision 4 U.S.T. Once with for are not banned servicemen provision be treaty, be read it is which there it should be voting were construed to problems would all conceded that that purpose as well serious literally. Very T.I.A.S. No. from “any construed? Its by the is one of first im- as common of is no interpreted con- political engaging political activi- avoiding treaty, legislative preclude political discus- raised sense, inter- con- how art. ac- fended At ulation to evidence devoid of ticipation proved. more solid testimony 559 an American ing all, and - F.2d. few appellant’s protest opposition British citizens The Constitution such in an of 182 on this basis than of English generalities. serviceman in the record demonstrating evidence. those who unpopular Christensen relies U.S.App.D.C., point to his because the this embarrassed or of- all is noticed for government’s In He cannot did, war.20 for prоsecuting surely requires publicly fact, none disap- at. the scant record is on spec- 628 of declar- effect point par- and offense to politics local with ference III. CONCLUSION applicability of governments. local regulation’s we assume this 35-15 —if AFR my disagreement my The essence of with treaty enforce is to purpose —would colleagues simple. is Recognizing that of fact questions particular turn on thus demonstrations servicemen stationed or did demonstration case—would each problems cause substantial abroad politics local or offend local interfere they have government, give decided to government? broad license to military authorities ban all case, majority answers Mindful of the demonstrations.21 risks in- volved, agree question briefly: speech I rights give way when soldiers substantial with re- question, especially The Vietnam war, government interests would otherwise be participation spect where What cannot accept no matter dis- harmed. I do not highly political, —and “demonstrations,” California, ban all 403 91 but instead v. U.S. discrimi- Cf. Cohen (1971) (Court among 284 29 L.Ed.2d notes on the nated them basis of their mes- specu- support Dep’t Chicago State court’s sage. Mosley, lack evidence See Police justification 92, 95, offensive conduct statute lative 33 408 U.S. L.Ed.2d Stanley Georgia, conviction); else, and 557, 567, (1972) (“[A]bove all the First Amend- (1969) 22 L.Ed.2d 542 89 S.Ct. power means that has no ment exposure (speculative connection between expression message, because of its its restrict ideas, obscenity sexual behaviоr cannot and deviant matter, subject content.”). its possession justify prohibition obscene ma- “equal protection” aspect While first District, terials); v. Des Moines School Tinker indisputably crucial amendment as a bul- 503, 508-09, L.Ed.2d censorship, equally against vital facet wark (Court (1969) lack permits Constitution believe —is of AFR sweeping proscription protests ‍​​​‌​​‌​‌‌‌‌‌‌​​‌​​​‌‌‌‌​‌‌‌​‌​​​​​​​​‌‌​‌​‌‌‌​‌‍alike re- public to all applicable probable impact. of their actual

gardless the first values shielded amendment compet- not immune to trade-offs interests, but where a

ing governmental I required, give up

trade-off possible, the first amendment as

little all favor of resolve doubts free believe, majority, only

speech. The values, in favor of other its doubts

resolves more of gives up also far the first

but than interest

amendment

requires. al., Plaintiffs,

Ramsey et CLARK VALEO, Secretary R. of the Unit-

Francis Senate, al., et

ed States Defendants.

No. 76-1825. Appeals,

United States Court

District of Columbia Circuit. 10, 1976.

Argued Sept. Jan. 1977.

Decided Jan. Amended 1977.

As

Judgment Affirmed June

See 97 S.Ct. notes “demonstration” is

Notes

[*]

[*]

[*]

[*]

[*]

[*] regulation, judi- in the it carried no defined not, judge does judge at least A does at the time of acts in gloss cial his and limiting rights of others. not, relish open interpretations to numerous it is be this has to done. On sometimes But reasons, everyday parlance. ap- For these has Supreme Court previous occasions would have us pellant hold the rights of servicemen that held process of by analogy violative due to Smith in order achieve may be curtailed women Goguen, v. military objectives. Here legitimate (1972) (“treats contemptuously L.Ed.2d de- rigid have been some military may flag of the United vague); States” held courts tails, this remove domestic but at Cincinnati, Coates military’s sensibly guess the second cannot (1971) (“conduct 29 L.Ed.2d basically it long so as was abroad response annoying persons passing by” held to considerations rooted in rea- responding vague); Jersey, New Lanzetta In capriciousness. rather policy, than soned 451, 59 (1939) L.Ed. 888 hand, justice may have military case at vague). held (“gang” taut it was rational. The Federal but been Judge Christensen answers appellant’s been instructed have courts briefly: argument judgments such stand. let Court is kind of gloss There a to the term BAZELON, Judge, dissenting: Chief ‘demonstration’ used in the regulation the context ‘protest from of and dissent’ convic- upholds appellant’s majority appears, by treaty in which it obliga- participating in a demonstration tion tion, the of visiting duties military per- soliciting organizations and their sonnel which are There military do the same. personnel separate political from quite such activi- col- objection my to most of be no can very meaning ty, with which observations about needs leagues’ come word has to be used. responsibilities our to nations connection there seems latter no valid troops. at the point host It is comparison between the word ‘demon- generalities to these the facts they apply and the other words stration’ which as part ways. we Their re- case that points out have been held to raises claim sponse vagueness involve, contexts, impermissi- in various troubling logic, fairness and questions of vagueness, including ‘gang’. ble claim rejection his overbreadth but -At U.S.App.D.C., 628 of disturbing because it needless- even more 559 F.2d. reách the first shrinks the substantive ly Finding no evidence in amendment. gloss There indeed a “kind of to the ” government’s concededly record ‘demonstration’ term based on context require this particular interests substantial usage, gloss everyday but blurs first citizen’s amendment curtailment vagueness precisеly ap- into area of I dissent. rights, activity. assume that “demon- pellant’s would not describe pre- individual stration” I. VAGUENESS petitions ambassador, to the sentations “ that it vagueness simply means that as I assume would describe just ‘Void for mass with all responsibility trappings should not attach the usual gatherings criminal activity fell sue to be protests. Appellant’s judged political on the face of regula- these extremes. Al- tion and its gloss; between authoritative somewhere cannot negated by showing though appellant speculated could have be of the defendant’s subjective state regula- of mind.1 If the law might proscribed, conduct his otherwise, trial judges could foreclose hardly provided him clear notice that tion claim vagueness simply in- appeal consti- particular style his juries structing that, convict, they activity. That criminal tute find that mistakenly defendant did not applied and the district court each court believe fell conduct outside the definitions, and that of these both different legal Questions proscription. relevant differ that later relied definitions

notes of evidence speech that of effective access to an free speculations support about risk court’s lower Gunther, See G. Cases Materi- audience. arising wearing students’ of disorder (1975); Law als on Constitutional 1142-1259 States, armbands); Scales v. United Note, Access, Forum: Minimum Public (Evi- (1961) L.Ed.2d 782 Access, Amendment, Equal and the First prosecu- dentiary requirements Act for Smith Stan.L.Rev. 117 From denial tions). frustration, inevitably access flow the such alienation, helplessness, apathy, and violence my colleagues would take a trust voiceless and unheard. prosecution under AFR 35- of a view dimmer failed to if it shown

Case Details

Case Name: Thomas S. Culver v. Secretary of the Air Force

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 10, 1977

Citation: 559 F.2d 622

Docket Number: 75-1468

Court Abbreviation: D.C. Cir.