CONSTITUTIONAL LAW II - Creighton University

CONSTITUTIONAL LAW II

PERSONS FOR FREE SPEECH AT SAC v. UNITED STATESAIR FORCE: MILITARY INSTALLATIONS AS A

PUBLIC FORUM

INTRODUCTION

Freedom of speech is the cornerstone of any democratic soci-ety.' It is an indispensable condition of nearly every other kind offreedom, 2 providing the means by which the citizenry can chal-lenge its institutions. 3 The United States Court of Appeals for theEighth Circuit, sitting en banc, was presented with this challengein Persons for Free Speech at SAC v. United States Air Force.4 InPersons For Free Speech, the court held that Offutt Air ForceBase's annual open house 5 did not create a public forum, 6 and thatthe Air Force could reasonably limit groups participating in theopen house to those whose activities were consistent with the pur-pose of the open house.7

One function of free speech under our system of governmentis to invite open discussion in matters of public concern. 8 In cer-tain carefully defined instances, however, the Constitution hasbeen interpreted to allow the government to restrict this vital free-

1. See U.S. CONST. amend. I, which provides: "Congress shall make no lawrespecting an establishment of religion, or prohibiting the free exercise thereof; orabridging the freedom of speech, or of the press; or the right of the people peacea-bly to assemble, and to petition the Government for a redress of grievances." Seealso Bridges v. California, 314 U.S. 252, 293 (1941) (freedom of expression is indis-pensable to the democratic process); Whitney v. California, 274 U.S. 357, 357 (1927)("[F]reedom to think as you will and to speak as you think are means indispensa-ble to the discovery and spread of political truth"); Diener v. Star-Chronicle, 230 Mo.613, -, 132 S.W. 1143, 1149 (1910) ("Free discussion is the foundation on which freegovernment itself is builded"). See generally T. EMERSON, THE SYSTEM OF FREEDOMOF EXPRESSION 3-20 (1970) (containing a thorough discussion of the firstamendment).

2. Palko v. Connecticut, 302 U.S. 319, 327 (1937) (freedom of speech is a funda-mental right deserving of protection).

3. Bridges v. California, 314 U.S. 252, 270 (1941) ("[I]t is a prized Americanprivilege to speak one's mind, although not always with perfect good taste, on allpublic institutions"). See note 8 infra.

4. 675 F.2d 1010 (8th Cir. 1982), cert. denied, 103 S. Ct. 579 (1982).5. Id. at 1012. Offutt has held an open house for the last six years. For a

description of the open house, see text at notes 17-18 infra.6. 675 F.2d at 1022.7. Id.8. Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (free speech may best serve its

high purpose when it creates dissatisfaction with conditions as they are); Thomas v.Collins, 323 U.S. 516, 530 (1945) (American tradition allows wide room for discussionwith a narrow range of restriction).

CONSTITUTIONAL LAW

dom.9 The constitutional guarantee of free speech does not permita citizen to appropriate public or private property for personal usefor the purpose of exercising that guarantee. 10 The Eighth Circuitstated: "The guarantees of the First Amendment have nevermeant 'that people who want to propagandize protests or viewshave a constitutional right to do so whenever and however andwherever they please.' , The court applied the standard man-dated by the most recent Supreme Court decisions 12 and deter-mined that no public forum had been created during Offutt's openhouse. 13 This decision protects the Air Force's right to conduct itsactivities as it sees fit, while not subverting first amendmentfreedoms.

This note begins with a summary of the facts and holding ofPersons For Free Speech. A historical discussion of the SupremeCourt's public forum analysis follows. This discussion leads intoan analysis of whether the current standard for determining theexistence of a public forum was properly applied by the EighthCircuit.

FACTS AND HOLDING

Offutt Air Force Base (Offutt), a military installation locatednear Bellevue, Nebraska, primarily serves as the headquarters forthe Strategic Air Command (SAC).' 4 Offutt is a closed base withguards posted at each entrance. The base is entirely enclosed by afence, and entry by nonmilitary persons requires the advance per-mission of the base commander. 15

Offutt holds an annual open house in which members of thepublic are allowed to enter certain designated areas of the base. 16

The open house includes aerial demonstrations, static displays ofaircraft and military equipment, performances by military bandsand drill teams, and information and recruiting booths. 17 Some

9. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). In his opinion,Justice Murphy stated: 'There are certain well-defined and narrowly limitedclasses of speech, the prevention and punishment of which has never been thoughtto raise any Constitutional problem." Id.

10. Thomas v. Casey, 121 N.J.L. 185, -, 1 A.2d 866, 870 (1938) (upheld ordinancedenying the right to speak in a public area without a permit), affd, 123 N.J.L. 447,-,9 A.2d 294, 295 (1939).

11. 675 F.2d at 1023 (quoting Greer v. Spock, 424 U.S. 824, 836 (1976), whichquotes Adderley v. Florida, 385 U.S. 39, 48 (1966)).

12. See note 36 infra.13. 675 F.2d at 1015.14. Id. at 1012.15. Id.16. Id.17. Id.

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nonmilitary organizations are also allowed to participate and areassigned booths at the open house. These groups include currentdefense contractors, local public service organizations and publicsafety concerns. 18

The 1981 open house was held on June 14, 1981.19 The purposeof the event, among other things, was" 'to show the community therelationship between national objectives and the missions of vari-ous Offutt organizations.'" The open house was also intended tocreate a "favorable environment" for recruitment. 20 The appel-lants, by a letter to the base commander dated May 21, 1981, re-quested permission to participate in the open house by"presentling] an alternative to the extremely dangerous andcostly arms race" and "seek[ing] to speak to the propriety of nu-clear proliferation . . . and the very existence of Offutt in ourcommunity."

21

By letter dated May 29, 1981, the base commander denied theappellants' request to participate in the open house. On June 11,1981, the appellants sought declaratory and injunctive relief in fed-eral district court. Following a hearing, the district court deniedthe appellants' request on June 12th. On June 13, 1981, Chief JudgeLay of the Eighth Circuit convened a three-judge panel by tele-phone to hear the appellants' expedited appeal.22 Later that day,Chief Judge Lay issued an order refusing to grant injunctive relief,but he did remand the case to the district court with directions thatthe plaintiffs' complaint be amended to reflect the challengeagainst the particular Air Force regulations involved.23 This wasdone to avoid the issue of mootness as it might relate to the occur-rence of a past event, i.e., the open house scheduled June 14, 1981.24On the evening of June 13th, the appellants petitioned the UnitedStates Supreme Court for a preliminary injunction. Justice Black-mun denied the petition. 25

On September 23, 1981, the district court issued a memoran-

18. Id.19. Id.20. Id. (quoting the operations plan for the open house).21. Id.22. Id.23. Id. at 1012-13. The district court was requested to address the following

issues: (1) whether defendants had waived their right to ban all forms of freespeech during the open house; (2) whether plaintiffs had been discriminatedagainst in not being given a booth at the open house; and (3) whether plaintiffs'distribution of literature could be banned without a finding by the Commander ofthe Air Force that it would disrupt the discipline and morale of its troops. Id.

24. Id. at 1013.25. Id.

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dum opinion,26 holding that the Air Force could constitutionallyrefuse to allow the appellants to participate in the open house heldat Offutt.27 In affirming the district court, the Eighth Circuit heldthat: (1) the open house was not the type of deviation from thehistorical and traditional uses of the Air Force base, and, there-fore, it did not create a public forum; 28 (2) the Air Force did notviolate the appellants' rights to equal protection of the law when itreasonably limited groups participating in the open house to thosewhose activities were consistent with the purpose of the openhouse;29 (3) the fact that the military itself may "speak" throughits community relations did not destroy the governmental interestserved in forbidding the military from becoming entangled withnonmilitary "ideological movements";30 (4) the Air Force coulddeny access to the appellants because they are an "ideologicalmovement" under Air Force Regulation 190-5;31 and (5) the ban ondistribution of literature was consistent with the policy behind AirForce Regulation 190-5, i.e., non-involvement of the military in ide-ological movements.32 The United States Supreme Court deniedcertiorari on December 17, 1982. 33

Historical Development of the Public Forum Analysis

The United States Supreme Court has wrestled with the prob-lem for over eighty years of determining where a public forum ex-ists. 34 The standards have evolved slowly but with frequentchanges. 35 In recent years, the Burger Court has narrowed thepublic forum doctrine, thereby reducing the number of availablepublic forums. 36 To understand the recent Burger Court decisions,

26. Id.27. Id. at 1014-15.28. Id. at 1015.29. Id. at 1018-19.30. Id. at 1021.31. Id. See note 117 infra.32. Id. at 1022.33. 103 S.Ct. 579 (1982).34. See, e.g., Davis v. Massachusetts, 167 U.S. 43, 47 (1897). "For the legislature

absolutely or conditionally to forbid public speaking in a highway or public park isno more an infringement of the rights of a member of the public than for the ownerof a private house to forbid it in his house." Id. (quoting Commonwealth v. Davis,162 Mass. 510, 511 (1895)). See also Stone, Fora Americana: Speech in Public Places,in 1974 SUP. CT. REV. 233, 236 (P. Kurland ed. 1975). See generally, Z. CHAFEE, FREESPEECH IN THE UNrrED STATES 416-22 (1948) (historical discussion of Davis v.Masachusetts).

35. See notes 36, 39, 48 infra.36. Zillman & Imwinkelried, The Legacy of Greer v. Spock: The Public Forum

Doctrine and the Principle of the Military's Political Neutrality, 65 GEo. L.J. 773,780-2 (1977). In determining whether a public forum exists, the Burger Courtutilizes the historical use test. See United States Postal Serv. v. Council of Green-

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it is important to examine how the public forum doctrine hasevolved.

The Supreme Court first confronted the public forum issue 37

in Davis v. Massachusetts38. In affirming a lower court decision,the Court resolved this issue by relying on common law conceptsof private property.39 This approach gave the state absolute powerto circumvent first amendment rights of free speech in public areasby asserting rights historically connected with private property.40

Therefore, states were allowed to ban the public from the place inquestion by declaring the area off-limits for public use.4 1 Due tothe perceived weakness of the Davis decision's analysis, this inter-pretation of what constitutes a public forum was abandoned forty-two years later in Hague v. CIO. 42

In Hague, the Court considered the constitutionality of a mu-nicipal ordinance forbidding all public meetings in streets andother public places without a permit.43 Relying upon the Court'sdecision in Davis, the petitioners contended that "the city's owner-ship of streets and parks is as absolute as one's ownership of hishome, with consequent power altogether to exlude citizens fromthe use thereof."44 Justice Roberts, writing for the plurality, re-sponded with his often quoted dictum, stating:

Wherever the title of streets and parks may rest, they haveimmemorially been held in trust for the use of the publicand, time out of mind, have been used for purposes of as-sembly, communicating thoughts between citizens, and

burgh Civic Ass'ns, 453 U.S. 114, 132-33 (1981) (there is neither historical nor consti-tutional support for the characterization of a letter box as a forum); Heffron v.International Soc'y for Krishna Consciousness, 452 U.S. 640, 647 (1981) (first amend-ment does not guarantee the right to communicate one's views at all times andplaces);Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 136 (1977)(a prison is not a public forum); Greer v. Spock, 424 U.S. 828, 836 (1976) (visitation ofa place owned or operated by the government does not make the place a publicforum).

37. T. EMERSON, supra note 1, at 299.38. 167 U.S. 43, 48 (1897) (upheld conviction of defendant charged with making

a speech on Boston Common in violation of city ordinance).39. Stone, supra note 34, at 337. The Court, quoting Justice Holmes, who was

then a judge on the Supreme Judicial Court of Massachusetts, stated: "For the leg-islature absolutely or conditionally to forbid public speaking in a highway or publicpark is no more an infringement of the rights of a member of the public than for theowner of a private house to forbid it in his house." Davis, 167 U.S. at 47.

40. 167 U.S. at 47 (legislature may end right of public to enter a public place byending its dedication to public uses). See generally Kalven, The Concept of the Pub-lic Forum: Cox v. Louisiana, in 1965 Sup. CT. REV. 1, 12-13 (P. Kurland ed. 1965)(discussion of rationale of Davis).

41. 167 U.S. at 47.42. Id. Kalven, supra note 40, at 13. See Hague v. CIO, 307 U.S. 496 (1939).43. 307 U.S. at 502.44. Id. at 514.

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discussing public questions. Such use of the streets andpublic places has, from ancient times, been a part of theprivileges, immunities, rights, and liberties of citizens. 45

Only Justice Black concurred with Justice Roberts' opinion, 46 butJustice Roberts' views eventually developed into the prevailingpublic forum doctrine.47 Subsequent court decisions relied onHague to invalidate ordinances restraining first amendment activi-ties. 48 In determining if a place was a public forum, then, the ques-tion asked was whether it was a place where citizens hadhistorically assembled and aired their views such as streets, parks,or public meeting areas. 4 9 These later cases, while clarifying andbuilding upon this "historical use" test,50 did not expand JusticeRoberts' definition of a public forum.5 1

A shadow of doubt was cast upon the Hague decision in 1965,when the pubic forum question was reconsidered in Cox v. Louisi-ana.52 Cox involved a Louisiana statute that prohibited the ob-struction of public passages. 53 On its face, the statute precludedall street assemblies.54 However, since the statute had not histori-cally been so applied, Justice Goldberg left open the question ofwhether a municipality could constitutionally ban all access tostreets and other public places for parades and meetings.5 5 Thus,

45. Id. at 515.46. Id. at 500.47. T. EMERSON, supra note 1, at 301.48. See, e.g., Niemotko v. Maryland, 340 U.S. 268, 271-73 (1951). There, the Court

reversed appellant's conviction of disorderly conduct for attempting to hold reli-gious meetings in a public park without a permit. Id. Justice Frankfurter, in hisconcurring opinion, stated: "The holding [of the Hague case was that the licensingofficials could not be given power arbitrarily to suppress free expression, no matterunder what cover of law they purported to act." Id. at 279. See also Kunz v. NewYork, 340 U.S. 290, 293-95 (1951) (invalidated ordinance which prohibited public wor-ship meetings without first obtaining a permit); Jamison v. Texas, 318 U.S. 413, 416(1943) (right to express one's views, while rightfully on a street open to the public,extends to communication of ideas by handbills); Cox v. New Hampshire, 312 U.S.569, 576 (1941) (municipality has authority to control use of its streets, as long asrights of assembly or speech are not abridged); Schneider v. New Jersey, 308 U.S.147, 160 (1939) (municipality has duty to keep streets open, but may not enact regu-lations abridging the constitutional liberty to impart information through speech ordistribution of literature). See generally Stone, supra note 34, at 239-45.

49. T. EMERSON, supra note 1, at 301. See also Hague, 307.U.S. at 516-17.50. Commentators have referred to the Hague determination of a public forum

as the "historical use test." See, e.g., Zillman & Imwinkleried, supra note 36, at 777.51. See note 48 supra.52. 379 U.S. 536, 551 (1965) (reversed a conviction for picketting in violation of a

state statute).53. Id. at 544.54. Id. at 555-56.55. Id. In his concurring and dissenting opinion, Justice Black stated:

The First and Fourteenth Amendments, I think, take away from thegovernment, state and federal, all power to restrict freedom of speech,

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the Court bypassed the possibility of reaffirming or reversingHague. Instead, it held that the statute was unconstitutionally ap-plied to the circumstances in Cox. 56 Consequently, this decisionleft the vitality of Hague in doubt, because there was uncertaintywhether the historical use test would still be the standard in deter-mining the existence of a public forum.5 7

The Supreme Court reconsidered the public forum questionone year later in Adderley v. Florida,58 and distinguished Cox. 59

In Adderley, the Warren Court did not rely exclusively on the his-torical use test in affirming the conviction of protestors at a jail-house.60 Rather, the Court stated that jails were built for securitypurposes and were not traditionally "open to the public. '6 1

Whether an area was "open to the public" became important indetermining if there was a public forum.6 2 "Open to the public" asused in Adderley was interpreted to mean any area which was ac-cessible to the public.63 The Adderley decision expanded the his-torical use test by using this "open and accessible" test, thereby,allowing nontraditional public places to be considered public fo-rums. The open and accessible test was given even greater weightin Amalgamated Food Employees v. Logan Valley Plaza.64 In Lo-gan Valley, the Court demonstrated its total acceptance of thistest.65 Thus, the Warren Court expanded the historical use test,

press, and assembly where people have a right to be for such purposes. Thisdoes not mean however, that these amendments also grant a constitutionalright to engage in the conduct of picketing or patrolling, whether on pub-licly owned streets or on privately owned property.

Id. at 577.56. Id. at 564, 571.57. Id. at 578 (Black, J., concurring and dissenting). See generally Stone, supra

note 34, at 237-39 (discussing Hague).58. 385 U.S. 39 (1966).59. Id. at 42.60. Id. at 41. In distinguishing Edwards v. South Carolina, 372 U.S. 229 (1963)

(reversing breach of peace convictions for engaging in demonstrations on state-house grounds), Justice Black stated: "Traditionally, state capitol grounds are opento the public. Jails, built for security purposes, are not." 385 U.S. at 41.

61. See note 60 and accompanying text supra.62. Brown v. Louisiana, 383 U.S. 131, 139 (1966) (overturned conviction of

breach of peace for engaging in silent protest at a public library).63. Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308, 320

(1968) (held that state trespass laws could not be applied to enjoin picketing in aprivately owned shopping center).

64. 391 U.S. 308 (1968).65. Id. at 313. The Court concluded that "picketing carried on in a location

open generally to the public is... protected by the First Amendment," that thepublic had "unrestricted access to the mall property," and that the center was"freely accessible and open to the people in the area." Id. at 318-19. Justice Doug-las, in a concurring opinion, stated that "it is clear the respondents have opened theshopping center to public uses." Id. at 326.

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finding that a public forum existed whenever an area was open andaccessible to the public.

In the 1972 decision in Flower v. United States,66 the Court re-versed a conviction for distributing leaflets on a street within theboundaries of an army base, and discussed the Warren Court's"open and accessible" test in its decision.67 The Flower decisionwas subsequently relied on by lower courts to find public forumsin both military and civilian settings.68 The Burger Court's deci-sion in Flower, however, was not solely based on the "open andaccessible" test but, also, upon the fact that the military had aban-doned all control of the area in question.69 In Flower, there wereno restrictions whatsoever on civilians who used the street thatran through the base. The public was free to travel through thisparticular area of the military base as it if were any other publicstreet. Since the military had abandoned any claim of interest ithad in the area, the Court held that the fort commander could notexclude the public from the street.70

However, in a series of cases, beginning with Lloyd Corp. v.Tanner,7 ' the Burger Court retreated from the expansive open andaccessible test of the Warren Court, seemingly because privateproperty was involved.7 2 In Lloyd, the Court reversed a lower fed-eral court decision that a ban on the distribution of handbills wasunconstitutional.73 In reaching this decision, the Supreme Court

66. 407 U.S. 197 (1972) (reversed conviction for distributing leaflets on a streetwithin the boundaries of an army base).

67. The Court, quoting Jamison v. Texas, 318 U.S. 413, 416 (1943), stated that"one who is rightfully on a street which the state has left open to the public carrieswith him there as elsewhere the constitutional right to express his views in an or-derly fashion." 407 U.S. at 198-99.

68. See, e.g., United States v. Gourley, 502 F.2d 785, 787 (10th Cir. 1973) (sta-dium and chapel at the Air Force Academy); Burnett v. Tolson, 474 F.2d 877, 880 (4thCir. 1973) (open areas on military base); Reilly v. Noel, 384 F. Supp. 741, 744 (D.R.I.1974) (statehouse rotunda).

69. 402 U.S. at 198 ("The military has abandoned any claim that it has specialinterests in who walks, talks, or distributes leaflets on the avenue").

70. Id. at 197-99.71. 407 U.S. 551, 570 (1972) (respondents had no right to exercise first amend-

ment rights on private property).72. Id. at 568-69. The Court stated that "[t]his Court has never held that a tres-

passer ... may exercise general rights of free speech on property privately owned.... Even where public property is involved, the Court has recognized that it is notnecessarily available for speaking, picketing, or other communicative activities."Id. See also Greer v. Spock, 424 U.S. 828, 836 (1976) (no principle of constitutionallaw holds that whenever members of the public are permitted freely to visit a placeit becomes a pubic forum); Hudgens v. NLRB, 424 U.S. 507, 520-21 (1976) (picketersdid not have a first amendment right to enter shopping center for purpose of adver-tising their strike); Lehman v. Shaker Heights, 418 U.S. 298, 301-2 (1974) (advertisingspace on a city owned bus is not a public forum).

73. 407 U.S. at 570.

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had to distinguish Logan Valley; doing so, it found the facts in theearlier case significantly different.7 4 Four years later in Hudgens v.NLRB, 75 the Court announced that its decision in Lloyd had, ineffect, totally rejected the Logan Valley analysis.7 6 Consequently,the open and accessible test was no longer to be used in decidingwhether a public forum existed.

In the same year that Hudgens was decided, the SupremeCourt, in Greer v. Spock, 77 upheld army regulations that barredpolitical activities on the Fort Dix military base.78 The Court, dis-tinguishing the Flower decision, 79 reaffirmed that the open and ac-cessible test would no longer be used in determining whether aforum was public.8 0 The Court readopted the historical use test,rejecting "the principle that whenever members of the public arepermitted freely to visit a place owned or operated by the Govern-ment, then that place becomes a 'public forum' for purposes of theFirst Amendment."'' s Writing for the majority, Justice Stewartconcluded that the Fort Dix area was not a traditional public fo-rum.8 2 The basis for Justice Stewart's decision was that the mili-tary had not abandoned control of the area in question;8 3 that acommanding officer could summarily exclude civilians from thearea under command;8 4 and that it was important to keep the mili-tary free from political entanglement.85 This approach focused onthe rights of the army. It allowed an absolute ban of first amend-ment activities if the military maintained control of the area inquestion, yet it would not allow proponents of one side of a contro-

74. Id. at 558-67.75. 424 U.S. 507 (1976).76. Id. at 518. "[WIe make clear now, if it was not clear before, that the ration-

ale of Logan Valley did not survive the Court's decision in the Lloyd case." Id.77. 424 U.S. 828 (1976).78. Id. at 838.79. Id. at 837. Both Flower and Greer involved public roads through military

bases, but the Court distinguished Greer on the basis that the Fort Dix authoritieshad not abandoned "any claim of special interest in regulating the distribution ofunauthorized leaflets." Id. at 837.

80. Id. at 836.81. Id.82. Id. at 838. Justice Stewart stated: "The notion that federal military reserva-

tions, like municipal streets and parks, have traditionally served as a place for freepublic assembly and communication of thoughts by private citizens is thus histori-cally and constitutionally false." Id.

83. Id. at 837. See generally Note, Greer v. Spock, 26 DRAKE L REv. 454 (1977).84. 424 U.S. at 838.85. Id. at 838-39. While it was true that other civilian speakers were allowed on

Fort Dix, they were deemed to be supportive of the military mission. Moreover,nothing precluded authorities from denying access to the base to any civilianspeaker. Id. at 838 n.10. Furthermore, no other political candidates had ever beenallowed on the Fort Dix base. Id. at 839.

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versy to appear on base while excluding proponents of the otherside.

86

In his concurring opinion, on the other hand, Justice Powellargued that the inquiry for determining if a public forum existsshould be predicted on "whether the manner of expression is basi-cally incompatible with the normal activity of a particular place ata particular time. '87 In this context, Justice Powell balanced thefree speech interests involved with the legitimate interest in main-taining the appearance and reality of political neutrality in themilitary.

88

While Greer made it clear that the historical use test would beused in a public forum analysis, the decision left uncertainty as tohow the test would be applied. Justice Stewart's opinion statedthat the threshold question in public forum analysis is whether thearea has traditionally been considered a public forum.89 This opin-ion, however, failed to delineate what degree of inquiry beyondthis threshold question is required to make such a determina-tion.90 The Supreme Court did little to resolve this uncertainty inthe subsequent case of United States Postal Service v. Council ofGreenburgh Civic Associations,91 In Greenburgh, the majority fol-lowed Justice Stewart's approach in Greer and applied the histori-cal use test; that is, if a place is not historically or traditionally apublic forum, first amendment activities may be restricted. 92 Asthe majority in Greenburgh stated: "There is neither historical norconstitutional support for the characterization of a letter box as apublic forum. '93 This decision, like Greer, found an absolute ban

86. Id. at 836-40.87. Id. at 843.88. Id. at 845-48. Note, supra note 83, at 460. Justice Powell's approach was

based on the majority opinion in Grayned v. City of Rockford, 408 U.S. 104 (1972).The Court in Grayned stated that the determination of whether a private group hada constitutional right to speak on public property should be based on whether themanner of expression was incompatible with the activity of the place in question.Id. at 116. In order to make this determination, a balancing of the rights involvedmust be performed. Shiffrin, Government Speech, 27 UCLA L. REV. 565, 575-77(1980). This approach affords first amendment freedoms broader protection thandoes the "historical use" test. Id. at 574-75. The majority opinion in Greer, however,ignored the Grayned decision completely. This left the vitality of the Grayned de-cision in doubt. Id. at 576.

89. -Note, Political Expression on Military Bases, 90 HAxv. L. REV. 152, 155(1976).

90. Id. at 152-57.91. 453 U.S. 114, 133 (1981) (letter box is not a public forum).92. Id. at 132-33. Justice Brennan stated: "I concur in the judgment, but not in

the Court's opinion .... In my view, [the Court's] conclusion rests on an im-proper application of the Court's precedents and ignores the historic role of themalls as a national medium of communication." Id. at 133.

93. Id. at 128.

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on first amendment activities permissible if no public forum wasinvolved,94 but left the proper application of the historical use testin doubt. The majority again failed to delineate the extent towhich a court should examine the particular factual situationwhen applying the historical use test.95

In eight years, the Burger Court ended the Warren Court's ex-pansion of the public forum doctrine, abandoned the open and ac-cessible test, and returned to the historical use test. Therefore,according to the Supreme Court's most recent analysis, unless aplace is historically associated with the exercise of first amend-ment rights, these rights can be prohibited. 96

ANALYSIS

As indicated, recent Supreme Court decisions have consist-ently held that the determination of a public forum question ismade through application of the historical use test.97 There still re-mains, however, a degree of uncertainty concerning the proper ap-plication of this test.98 A mechanical application of the rule couldsubvert the first amendment rights of certain individuals while ad-vancing the rights of others. For example, historically a militarybase is not a public forum.99 Therefore, any group not within therange of traditional military activities could be excluded regardlessof the factual situation.100 This rigid approach would not providethe protection to which speech is entitled under the first amend-ment. 1 1 On the contrary, it would relegate these rights to a secondclass status.

94. Id. at 131 n.7. "[P]roperty owned or controlled by the government which isnot a public forum may be subject to a prohibition of speech, leafleting, picketing, orother forms of communication without running afoul of the First Amendment." Id.

95. See notes 89-91 and accompanying text supra.96. See notes 50, 72, 82, 91 and accompanying text supra.97. See note 36 supra.98. Compare the opinions of Justices Rehnquist and Brennan in United States

Postal Service. Justice Rehnquist takes an absolutist approach and, quoting Greet,stated that "[tJhe State, no less than a private owner of property, has power topreserve the property under its control for the use to which it is lawfully dedi-cated." 453 U.S. at 129-30. Justice Brennan, in his concurring opinion, stated that inpublic forum analysis"[t] he crucial question is whether the manner of expressionis basically incompatible with the normal activity of a particular place at a particu-lar time." Id. at 136 (quoting Grayned v. Rockford, 408 U.S. 104, 116 (1972)). Al-though Justice Powell joined in the majority opinion, his position advocates abalancing approach. See note 88 and accompanying text supra. This divergence ofopinion within the majority leaves students of this doctrine disconcerted as to itstrue application. See also notes 89-92 and accompanying text supra.

99. Brown v. Glines, 444 U.S. 348, 353-57 (1980).100. Greet, 424 U.S. at 835-38.101. See notes 1-3 supra.

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In Persons for Free Speech, the Eighth Circuit attempted toavoid the mechanical application of the historical use test by in-quiring into circumstances beyond those of the historical uses ofOffutt. In determining whether Offutt created a public forum byhaving an open house, the Eighth Circuit asked "whether the openhouse is such a deviation from the historical and traditional uses of[Offutt] so as to create a public forum." 10 2 This line of inquiry al-lowed the court to consider several factors in deciding whether apublic forum had been created: (1) the control the military main-tained over the area;10 3 (2) the purpose of the event in question; 10 4

(3) whether the event was supportive of the military mission; 0 5

and (4) whether the event or "speech" involved was politically andideologically neutral. 10 6 These further considerations afforded pro-tection to both the Air Force's right to carry on its activities as itsees fit, and the individual's right to speak out on matters of publicconcern 107

The first factor the Eighth Circuit considered in determiningwhether a public forum existed was the degree of control the mili-tary maintained over the operation. 0 8 In two previous cases thatcame before the Supreme Court involving "political speech" onmilitary bases, control was the most significant factor 0 9 InFlower, the Court reversed a civilian's conviction for distributingleaflets within the boundaries of a military base.1 10 The basis ofthe reversal was that the military had abandoned control of thearea in question."' Justice Stewart distinguished the Flower deci-sion in Greer, when he found the military at Fort Dix had not"abandoned any claim of special interest in regulating the distribu-tion of unauthorized leaflets."'112 The Eighth Circuit determinedthat control of the open house, as evidenced by the extensive oper-ations plan of the event, was retained by the Air Force.1 3 In fact,security during the open house was increased.114 The Air Force

102. Persons for Free Speech, 675 F.2d at 1015.103. Id. at 1015-16.104. Id. at 1016.105. Id.106. Id. at 1017.107. See Note, Greer v. Spock, 26 DRAKE L. REV. 454, 463 (discussion of the inad-

equacy of a mechanical application of the historical use test).108. 675 F.2d at 1015-16.109. Greer, 424 U.S. at 837; Flower v. United States, 407 U.S. 197, 198 (1972).110. 407 U.S. at 197-98.111. Id. at 198.112. 424 U.S. at 837.113. Persons for Free Speech, 675 F.2d at 1015.114. Brief for Appellee at 18, Persons for Free Speech at SAC v. United States

Air Force, 675 F.2d 1010 (8th Cir. 1982).

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allowed visitors on the base during the open house, but it did notabandon all control over these areas.1 1 5

The Eighth Circuit rejected the argument that the size of theaudience attending the open house was indicative of an abandon-ment of the area by the military.116 To embrace this argumentwould constitute a return to the open and accessible test, whichhad been expressly rejected by the Supreme Court.1 17 As theSupreme Court stated in Greer, a public forum is not automaticallycreated by inviting members of the public to visit a place. 118

Second, the Eighth Circuit considered the purpose of the openhouse, and whether that purpose was supportive of the militarymission. 119 If the purpose of the open house, i.e., fostering goodcommunity relations, was either outside the traditional range ofmilitary activities or not supportive of the military mission, thenthe appellants might have had the right to participate in the openhouse. Once a forum is opened, the government may not prohibitothers from speaking on the basis of the speech's content.1 20 InPersons for Free Speech, however, the Eighth Circuit determinedthat fostering good community relations was within the range oftraditional military affairs and was supportive of the military mis-sion.1 2 1 Thus, the open house was not the type of deviation fromthe historical use of a military base which would otherwise createa public forum.

While it is unclear where the line should be drawn between apurpose which is supportive and one which is not supportive of themilitary mission, some areas are clearly outside the traditionalrange of military activities. These areas would include partisanpolitical campaigning and speeches which are ideologically contro-versial. 122 Purposes which are supportive of the military missionwould include, for example, activities within the contours of Air

115. Id.116. 675 F.2d at 1015.117. See note 76 supra.118. Greer, 424 U.S. at 836.119. 675 F.2d at 1016.120. Police Department of Chicago v. Mosley, 408 U.S. 92, 94 (1972) (city ordi-

nance was held unconstitutional for making an impermissible distinction betweentypes of picketing); Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) (a conviction forviolation of a municipal ordinance was reversed because other religious sects wereallowed to assemble in the park while Jehovah's Witnesses were not). But seeGreer, 424 U.S. at 838 n.10 (the fact that other civilian speakers had appeared at FortDix did not convert the base into a public forum). See generally Shiffrin, Govern-ment Speech, 27 UCLA L. REV. 565, 577-83 (1980) (discussing access to governmentfacilities).

121. Persons for Free Speech, 675 F.2d at 1016-17.122. Greer, 424 U.S. at 846-48.

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Force Regulation 190-5.123 This regulation outlines activities inwhich the Air Force may participate, and the limitations imposedon any such participation. 124

The Eighth Circuit next considered whether the "speech"heard at the open house constituted an abondonment of the AirForce's ideological neutrality. 125 If this were the case, the openhouse might be outside the traditional range of military activitiessupportive of the military mission, thereby creating a public fo-rum.126 When the government uses public facilities to favor onepoint of view, it must permit access to those facilities to advocatesof differing points of view.12 7 The Eighth Circuit reasoned, how-ever, that the "speech" heard at the open house only constitutedthe military carrying out policies made by the Commander inChief, and any debate on such controversies was for civilian fo-rums, not military bases.128 In Persons for Free Speech, groupsseeking to participate in the open house were screened, and if theywere attempting to promote any political, ideological, or theologi-cal issue, they could not enter the base. 29 There were no pro-nu-clear advocates at the open house. The fact that a place is used forthe communication of ideas and information does not by itself cre-ate a public forum. 30 Likewise, permitting civilians to participatein a military open house did not automatically create a publicforum.

1 3 1

The dissent argued that the open house created a public fo-rum, and that the proper line of inquiry in public forum analysiswas "whether the [proposed] manner of expression is basically in-compatible with the normal activity of a particular place at a par-

123. 675 F.2d at 1016. Air Force Regulation 190-5, entitled "Air Force Participa-tion in Public Events," provides:

a. Participation is authorized, encouraged, and essential, within thelimits defined in this regulation, to:

(1) Inform the public on Air Force preparedness and promote na-tional security;

(2) Demonstrate US partnership with allies in collective security;(3) Develop public understanding of the Air Force mission;(4) Assist Air Force personal procurement programs; and(5) Aid community relations. Commanders at all levels will give posi-

tive emphasis to the importance of good community relations in the execu-tion of their missions.

124. 675 F.2d at 1016.125. Id. at 1017-18.126. Id. at 1016 n.5.127. See note 118 supra.128. 675 F.2d at 1017.129. Id. at 1019.130. Id. at 836. See also United States Postal Service, 453 U.S. at 130 n.6.131. Greer, 424 U.S. at 838 n.10.

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ticular time."1 32 However, this inquiry has not been mandated bythe Supreme Court. 133 Judge Heaney, who wrote the dissentingopinion, cited only two cases supporting this position, Grayned v.City of Rockford13 4 and Greenburgh.135 It appears, however, thatGreenburgh was read incorrectly. 3 6 In Greenburgh, it is true thatJustice Brennan espoused the "compatibility" line of inquiry, butthis analysis has not been adopted by a majority of the Court. 3 7

Also, the dissent stated that the size of the event was a factor thatindicated that a public forum was created. 3 8 This analysis is com-patible with the Warren Court's open and accessible test, whichhowever, has been resoundingly repudiated. 3 9

The majority, on the other hand, applied the historical use test,which has been mandated by the most recent Supreme Court deci-sions. 14 Had the Eighth Circuit applied the open and accessibletest, Offutt would have been considered a public forum, becausethe base was opened to the public. 14 1 This result would restrict theAir Force's right to conduct activities consistent with their legiti-mate interests. The Air Force would be forced to allow individualsor groups onto the Base in order to participate in the open house,regardless of whether their purposes were consistent with those ofthe Air Force. Thus, the Persons for Free Speech group's rightswould be afforded greater protection than the Air Force's rights.However, the Eighth Circuit noted that the Air Force also had astrong, legitimate interest in fostering good community relations;consequently, the court held that this interest merited pro-tection.

42

A mechanical application of the historical use test, however,would have subverted the first amendment rights of the Personsfor Free Speech group.143 If the inquiry goes no further than the

132. 675 F.2d at 1026.133. See note 35 supra.134. 408 U.S. 104 (1972); see note 88 supra. However, it appears that the compati-

bility test of Grayned has been abandoned after Greenburgh.135. 675 F.2d at 1023-24 (Heaney, J., dissenting).136. United States Postal Service v. Council of Greenburgh, 453 U.S. 114, 130 n.6

(1981), is cited as supporting the "compatibility" test. Id. at 1024 n.6. But, in note 6of the majority opinion, Justice Rehnquist was merely responding to Justice Bren-nan's concurring opinion. Justice Rehnquist was not espousing the "compatibility"test, as was contended in the Eighth Circuit dissent.

137. See notes 88, 94 and accompanying text supra.138. Persons for Free Speech, 675 F.2d at 1025-26.139. See notes 75-76 and accompanying text supra.140. 675 F.2d at 1015. For a listing of recent Supreme Court cases utilizing the

"historical use" test, see note 36 and accompanying text supra.141. See notes 62-64 and accompanying text supra.142. 675 F.2d at 1016.143. Zillman & Imwinkleried, supra note 36, at 785-86.

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historical uses of Offutt, and does not address the circumstances ofthe particular factual situation, one group's rights would have beenasserted at the expense of another's.144 To prevent this imbalance,the intrusion on the activity was considered as well as the infringe-ment on first amendment activities. 145 The Eighth Circuit broad-ened its inquiry, as stated above, and was able to take additionalfactors into consideration.146

By following this analysis, the Eighth Circuit concluded thatno public forum had been created by the open house. 4 7 This con-clusion is significant because once it is determined that no publicforum exists, property "may be subject to a prohibition of speech,leafleting, picketing, or other forms of communication without run-ning afoul of the First Amendment."' 48 However, while there maybe a prohibition of speech where a non-public forum is owned orcontrolled by the government, these restrictions must be reason-able and content-neutral."49

In addition to the public forum issue, the court considered theappellants' argument that their right to equal protection of the lawwas denied because other groups were given booths at the openhouse and they were not.15 0 The base commander denied the ap-pellants' request to participate in the open house because theirproposed activities were not consistent with the purposes of theopen house. 151 The weight of authority gives base commanders awide latitude of discretion in deciding which groups should be al-lowed on a base. 5 2 If it is determined that two groups are substan-

144. Cass, First Amendment Access to Government Facilities, 65 VA. L. REV.1287, 1316 (1979) (a critical analysis of the public forum doctrine).

145. Id.146. Persons for Free Speech, 675 F.2d at 1015-17.147. Id. at 1017.148. United States Postal Service, 453 U.S. at 131 n.7.149. Id. Justice Rehnquist discussed the validity of reasonable time, place, and

manner regulations and what conditions must be satisfied for constitutionally per-missible time, place, or manner restrictions in public forums. That is, the regula-tion must: (1) be content neutral; (2) serve a legitimate governmental interest; and(3) leave open ample alternate channels of communication. Id. at 132. However, asJustice Rehnquist pointed out, if a nonpublic forum is involved, this analysis is un-necessary unless that nonpublic forum is government owned or controlled. Id. Seealso Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 544 (1980) (heldthat the N.Y. Public Service Commission could not prohibit the inclusion of insertsin monthly bills discussing issues of public policy). Justice Powell stated that "arestriction that regulates only the time, place, or manner of speech may be imposedso long as it is reasonable. . .. (Such a] restriction may not be based upon eitherthe content or subject matter of speech." Id. at 536.

150. Persons for Free Speech, 675 F.2d at 1018.151. Id. at 1012.152. Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 136

(1977) (appropriate deference should be given to the decisions of prison adminis-

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tially similar, and one group is denied access, only then wouldthere be an abuse of the base commander's discretion. 153 TheEighth Circuit found that the distinction made between other civil-ian groups and the appellants' organization was reasonable and,therefore, permissible. 5 4

Generally, a prohibition on the right of free speech must becontent-neutral. 155 The court pointed out that there are, however,"narrow circumstances" in which the government may regulatethe subject matter of speech.156 One such circumstance exists ifthere is a reasonable belief that harm will result if the "speech" isallowed.157 The Supreme Court, in Jones v. North Carolina Prison-ers' Labor Union, Inc. ,158 stated that any threat to the order or se-curity of the institution is the type of harm that would allow"speech" to be restricted. 15 9 Offutt's base commander believedthat trouble might ensue if the appellants participated in the openhouse.160 This belief was reasonable under the circumstances.161

In Jones, the Court held that in a non-public forum, reasonable be-liefs of harm are sufficient to prohibit certain activities. 162 Al-though Jones involved a prison warden's discretion, both theSupreme Court and the Eighth Circuit believe that the reasonable-ness standard should also be applied to base commanders. 63 Anygreater requirement would be deleterious to the policy of grantinga base commander a wide latitude of discretion. 64

Two other relevant issues were addressed by the Eighth Cir-cuit. First, the court considered whether Air Force Regulation 190-

trators). Although a military base and a prison are not identical, Justice Rehnquistcompared the two in his opinion. Id. at 134. See also Cafeteria Workers v. McElroy,367 U.S. 886, 891 (1961) (discussing the responsibility and authority of a command-ing officer).

153. Jones, 433 U.S. at 136.154. Persons for Free Speech, 675 F.2d at 1019. For instance, a group of defense

contractors was permitted access to the base. A relevant factor in making this de-termination was that this group was "strictly limited" to providing information onequipment currently being provided to the Air Force. Id.

155. See note 130 and accompanying text supra.156. 675 F.2d at 1019. See Greer, 424 U.S. at 838 n.10 (political speech was prohib-

ited even though other civilian speakers were allowed); Lehman v. Shaker Heights,418 U.S. 298, 302 (1974) (held city transit system did not have to accept politicaladvertising).

157. Jones, 433 U.S. at 133, 136.158. 433 U.S. 119 (1977).159. Id. at 133, 136.160. Persons for Free Speech, 675 F.2d at 1020.161. Id.162. 433 U.S. at 134-35.163. See note 152 supra. See also 675 F.2d at 1018 n.7.164. Jones, 433 U.S. at 136.

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5165 was unconstitutional on its face or as applied.166 The courtheld that the non-involvement of the military in civilian ideologicalmovements is necessary to maintain public confidence in civiliancontrol of the military.167 If one side of a controversy is not al-lowed on base, the military is not required to allow the other sideaccess.1 68 Regulation 190-5 was not unconstitutionally applied be-cause it "has been consistently and evenhandedly applied as toideological movements."' 69

Second, the appellants were denied a request to distributeliterature on base. 70 The Eighth Circuit affirmed the districtcourt's finding that a ban on the distribution of literature was con-sistent with the policy behind Air Force Regulation 190-5--the non-involvement of the military in ideological movements. 171

CONCLUSION

In Persons For Free Speech, the Eighth Circuit properly ap-plied the standard mandated by recent Supreme Court decisionsin determining whether a forum is public. While it remains un-clear how the historical use test should be applied, a mechanicalapplication of the test would not afford free speech the protectionit deserves. The Eighth Circuit avoided this problem by extendingits inquiry beyond whether a military base is historically a publicforum. This approach protects both the individual's right of freespeech while protecting the rights of the military, and is superiorto the open and accessible test, because the rights of all parties to adispute are considered.

John S. McCaffrey- '84

165. See note 123 supra.166. 675 F.2d at 1021-22.167. Id. at 1021.168. Id. at 1022.169. Id.170. Id.171. Id.

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CONSTITUTIONAL LAW II - Creighton University