UNITED STATES OF AMERICA, PETITIONER V. JAMES VINCENT ALBERTINI No. 83-1624 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinion below Jurisdiction Statutory provision involved Statement Reasons for granting the petition Conclusion Appendix OPINION BELOW The opinion of the court of appeals (App., infra, 1a-15a) is reported at 710 F.2d 1410. JURISDICTION The judgment of the court of appeals was entered on July 22, 1983 (App., infra, 17a). A petition for rehearing was denied on January 4, 1984 (App., infra, 16a). On February 23, 1984, Justice Rehnquist extended the time in which to file a petition for a writ of certiorari to April 3, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISION INVOLVED 18 U.S.C. 1382 provides: Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof -- Shall be fined not more than $500 or imprisoned not more than six months, or both. QUESTION PRESENTED Whether the First Amendment prohibits the enforcement of 18 U.S.C. 1382, which makes it unlawful to reenter a military base after having been barred by the commanding officer, against a civilian who is subject to a valid bar order but reenters the base during an "open house" for the purpose of engaging in an antiwar demonstration. STATEMENT 1. In March 1972, respondent and a companion entered Hickam Air Force Base, Hawaii, ostensibly to present a letter to the commanding officer. Instead, they obtained access to secret Air Force documents and destroyed them by pouring animal blood on them. Respondent was convicted of conspiracy to injure government property in violation of 18 U.S.C. 371 and 1361. He also received a "bar letter" -- a letter from the commander of Hickam that informed him that he was forbidden to "reenter the confines of this installation without the written permission of the Commander or an officer designated by him to issue a permit of reentry." App., infra, 3a n.1. In March 1981, respondent, according to his own testimony, entered a secured area at Camp Smith, Hawaii, and engaged in what he described as a "civil disobedience action" that involved defacing government property (Tr. 62). For this action the commander of Hickam Air Force Base issued respondent another bar letter. /1/ Later in 1981, respondent reentered Hickam during "Armed Forces Day," the base's annual open house. On this day, members of the general public, who ordinarily can enter Hickam only with permission, are invited to enter certain portions of the base, and various events are held for their benefit. For example, the Air Force displays aircraft and other equipment; servicemen engage in parachute jumps and "flyovers"; and various amusements are provided, such as musical performances and carnival rides. App., infra, 2a-3a. Respondent was apprehended during the open house while he was engaged in an antiwar demonstration that involved leafleting and holding up a sign (App., infra, 3a). He was charged with violating 18 U.S.C. 1382, which makes it unlawful for any person to reenter a military installation "after having been * * * ordered not to reenter by any officer or person in command * * *." After a trial before a judge in the United States District Court for the District of Hawaii, respondent was convicted and sentenced to three months' imprisonment. 2. The court of appeals reversed respondent's conviction on the ground that it violated the First Amendment (App., infra, 1a-15a). After rejecting respondent's contention that advertisements for the open house constituted permission for him to reenter Hickam (id. at 4a), the court of appeals began its analysis by discussing at length whether Hickam was a "public forum" during the open house (id. at 4a-13a). The court acknowledged that "(a) military base, even one open to the public, is not a traditional public forum" (App., infra, 5a). But the court concluded that "the open portions of Hickam Air Force Base" during the open house "were areas over which the military had effectively abandoned control of access" (id. at 8a-9a). For this reason, the court held, Hickam during the open house was "a public forum," or at least "a 'limited public forum'" (id. at 9a, 10a). In reaching this conclusion, the court of appeals explicitly disagreed (id. at 11a-13a) with Persons for Free Speech at SAC v. United States Air Force, 675 F.2d 1010 (8th Cir.), cert. denied, 459 U.S. 1092 (1982). The court further ruled that respondent's "manner of expression was not basically incompatible with (the) activity of Hickam at that particular time" (App., infra, 11a). The court accordingly states (id. at 13a): "We conclude that members of the public had a first amendment right to hold signs and pass out leaflets at Hickam Field on Armed Forces Day." The court of appeals then briefly considered the significance of respondent's bar letter (App., infra, 13a-14a) and held that the bar letter did not alter its conclusion that respondent's "actions on Armed Forces Day were constitutionally protected" (id. at 15a). The court of appeals reached this result on the authority of Flower v. United States, 407 U.S. 197 (1972), which, it stated, established that "the military loses its power to exclude when a base becomes a public forum" (App., infra, 13a). REASONS FOR GRANTING THE PETITION The court of appeals' decision is incorrect, and it potentially jeopardizes a worthwhile and important military program. Contrary to the court of appeals' approach, this case does not concern the right to leaflet or demonstrate during an open house. Rather, the issue is whether the prohibition against reentering a base contained in 18 U.S.C. 1382 -- a content-neutral prohibition that is wholly unrelated to the regulation or suppression of speech -- can be enforced against respondent, who was the holder of a valid bar letter issued because he had engaged in acts of destructive vandalism. There is no basis for the court of appeals' conclusion that Section 1382 cannot be applied during an open house. Indeed, the need to exclude persons who have demonstrated themselves to be threats to the security of a military installation is particularly acute during an open house, because much of the base is open -- providing easier access to sensitive areas that remain closed -- and the crowds of civilians provide cover for any person determined to engage in destructive acts. The possibility that enforcing Section 1382 against respondent would have an incidental effect on his First Amendment rights, by forcing him to demonstrate (if he so desires) outside the entrance of the base instead of on the base itself, does not warrant a different result, especially since respondent's own previous unlawful acts were the cause of the restriction. Open houses are conducted at many military installations; they serve an important function in alleviating the isolation of the military from the civilian community and in informing citizens about the military. Because the court of appeals' decision significantly and unjustifiably augments the security problems in conducting the open house program, and thus will discourage the holding of open houses, review by this Court is warranted. 1.a. The decision of the court of appeals is plainly incorrect. /2/ The court of appeals analyzed this case as if the base commander were asserting the right to exclude leafleters and demonstrators from the open house at Hickam. But that is not the issue in the case at all; it is immaterial to the legal issue presented by this case that respondent was first identified and apprehended by military authorities while he was engaged in a demonstration. Instead, this case concerns the application of the wholly neutral prohibition of 18 U.S.C. 1382, which makes it unlawful for any person to reenter a military installation without permission after having received a bar letter. Respondent was prosecuted not for demonstrating but for reentering the base after he had been barred from doing so. The prohibition of Section 1382, which respondent violated, makes no reference to speech; it is unrelated to the content of speech, or indeed even to whether speech is occurring at all. It is supported by a "governmental interest * * * unrelated to the suppression of * * * expression" (United States v. O'Brien, 391 U.S. 367, 377 (1968)) -- specifically, the military's legitimate need to protect the security of its installations, and "the historically unquestioned power of a commanding officer * * * to exclude civilians from the area of his command" (Cafeteria Workers v. McElroy, 367 U.S. 886, 893 (1961)). This power is "(a) necessary concomitant of the basic function of a military installation" (Greer v. Spock, 424 U.S. 828, 838 (1976)). There is, moreover, no question about the validity of respondent's bar letter. Respondent does not, and cannot, claim that he received the bar letter for engaging in activities protected by the First Amendment. Respondent does not appear to claim -- and in any event the courts below did not find -- that he was selectively prosecuted for engaging in protected activities. And while respondent asserted that the bar letter was stale, the court of appeals expressly declined to address this contention (App., infra, 4a). In short, respondent was subject to a lawful bar order, and by entering the base -- for any purpose -- he violated a neutral prohibition that is wholly unrelated to speech. The mere fact that he added activities that, we may assume, were protected by the First Amendment to the unlawful act of reentering the base does not exempt him from criminal liability for that act. See Holdridge v. United States, 282 F.2d 302, 311 (8th Cir. 1960) (Blackmun, J.). b. Arguably, Section 1382, as applied to this case, did have an incidental effect on respondent's ability to exercise his First Amendment rights. But as this Court noted in rejecting the claims of other persons who sought to engage in expressive activities on a military installation, a neutral regulation is not invalid merely because it prevents people from "'propagandiz(ing) protests or views * * * whenever and however and wherever they please.'" Greer, 424 U.S. at 836 (quoting Adderly v. Florida, 385 U.S. 39, 47-48 (1966)). There is no doubt that Hickam did not have to hold an open house; it could have excluded civilians at all times. Since that is true, it is difficult to see why Hickam could not exclude a category of civilians -- those holding bar letters -- that is defined without reference to the content of speech or to the fact that a person has engaged, or proposes to engage, in expressive activities. The court of appeals' "public forum" analysis is at best of limited utility in this context. This Court has recognized that a military base "does not become a 'public forum' simply because members of the public are permitted to come and go at will" (United States v. Grace, No. 81-1863 (Apr. 20, 1983), slip op. 6 (citing Greer, 424 U.S. at 836)). And the court of appeals itself recognized (App., infra, 5a) that Hickam during the open house was not a traditional public forum in which "the rights of the state to limit expressive activity are sharply circumscribed" (Perry Education Ass'n v. Perry Local Educators' Ass'n, No. 81-896 (Feb. 23, 1983), slip op. 7). Moreover, even where such a forum is involved, the Court has upheld a content-neutral regulation if it "serve(s) a significant government interest, and leave(s) open ample alternative channels of communication." Id. at 7-8. See Grace, slip op. 5; Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647-648 (1981) (quoting Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976)); Grayned v. City of Rockford, 408 U.S. 104(1972); Kovacs v. Cooper, 336 U.S. 77 (1949); Cox v. New Hampshire, 312 U.S. 569 (1941). See also Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 535 (1980); Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 93-94 (1977). Section 1382 easily meets these criteria: it is plainly content-neutral, and the government interests supporting it greatly outweigh any incidental effect on expression. Section 1382 is designed to prevent people who are proven risks to the security or good order of a military base from entering it. Respondent, for example, had been convicted of engaging in destructive acts of vandalism and had demonstrated his willingness to engage in such acts when given an opportunity to enter a military installation. The Air Force's interest in deterring him from entering a base is obviously very strong. Moreover, this interest is, if anything, even stronger during an open house. When some areas of a base are open, it is easier for a person determined to engage in vandalism to gain access to the sensitive areas that remain closed. The crowds of strangers, and the generally less orderly setting, provide a convenient cover for such an individual. By contrast, the impact on respondents' rights is limited; he was free to demonstrate anywhere off the base, including just outside its entrance. In addition, respondent could have followed the "alternative" course of not engaging in the unlawful conduct that caused him to receive a bar letter in the first place. We note that respondent, or any other person subject to a bar letter, is free to challenge the letter either in a proper action for declaratory relief (after exhausting administrative remedies by appealing to the commanding officer of the base) or by raising its invalidity as a defense to a prosecution under Section 1382. A bar letter cannot be issued in retaliation for the exercise of rights protected by the Constitution or for the purpose of preventing a person from exercising those rights. See Kiiskila v. United States, 433 F.2d 745 (7th Cir. 1970) (en banc). See also Cafeteria Workers, 367 U.S. at 897-898. A bar letter issued for such an impermissible purpose cannot support a conviction under Section 1382. Moreover, Department of Defense regulations specifically provide that a base commander may not exercise his authority to deny access to the base "in an arbitrary, capricious, or discriminatory manner" and that this authority must be "judiciously applied" on the basis of "reasonable grounds" (DOD Directive No. 5200.8(C) (July 29, 1980)). Air Force regulations further specify that a bar order "must be reasonable in relation to (the commander's) responsibility to protect and to preserve order on the installation and to safeguard persons and property thereon." AF Regulation 355-11(1)(b) Sept. 10, 1971). See Serrano Medina v. United States, 709 F.2d 104, 109-110 (1st Cir. 1983). c. The court of appeals' reliance in Flower v. United States was plainly inappropriate. Flower stands only for the proposition we just noted: a person cannot be prosecuted under Section 1382 on the basis of a bar letter that was issued because he engaged in constitutionally protected activity. Flower was "distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas" (407 U.S. at 197). This street, and the installation, were open to the public at all times (id. at 198); Flower had previously received a bar letter, and he was prosecuted under Section 1382. But it was a matter of record that Flower had received the bar letter for engaging in the same activity -- leafleting on the open base. See 407 U.S. at 197; United States v. Flower, 452 F.2d 80, 82, 87 (5th Cir. 1971). The Court determined that, in the context of the military base at issue in Flower, this activity was constitutionally protected (407 U.S. at 198-199). Since the bar letter had been issued because Flower engaged in protected activity, Flower's conviction was reversed. By contrast, there is no suggestion, and there can be no suggestion, that respondent received a bar letter for engaging in activities protected by the First Amendment. It is wholly implausible to suppose, as the court of appeals did, that Flower establishes that once a base commander permits members of the public to enter his base in large numbers, he loses all authority to exclude any person, no matter how justifiable -- and unrelated to speech or expression -- his reasons for doing so. See Greer, 424 U.S. at 838 n.10. Moreover, in relying on Flower, the court of appeals appears to have ignored this Court's admonition in Greer, 424 U.S. at 835-836: The decision in Flower was * * * based upon the Court's understanding that New Braunfels Avenue was a public thoroughfare in San Antonio no different from all the other public thoroughfares in that city * * *. That being so, the Court perceived the Flower case as one simply falling under the long-established constitutional rule that there cannot be a blanket exclusion of First Amendment activity from a municipality's open streets, sidewalks, and parks * * *. * * * * * The Court of Appeals was mistaken, therefore, in thinking that the Flower case is to be understood as announcing a new principle of constitutional law, and mistaken specifically in thinking that Flower stands for the principle that whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a "public forum" for purposes of the First Amendment. Such a principle of constitutional law has never existed, and does not exist now. 2. Open houses at military bases are extremely common; the Air Force informs us that it has issued a directive urging every base commander to hold an open house at least annually. The open house program is an important means of maintaining good relations between the base and its surrounding community, not only because it is a display of hospitality but also because it demonstrates to the community the public services that the installation can provide. Perhaps more important, open houses provide civilians with a direct exposure to a military installation and military life. The court of appeals attached considerable significance to its perception that the Air Force was using the open house at Hickam as a means of "speaking" about itself. See, e.g., App., infra, 8a-11a. But it is one of the primary responsibilities of the government to inform citizens of its activities so that they may evaluate its performance. See Barr v. Matteo, 360 U.S. 564, 575-575 (1959) (plurality opinion of Harlan, J.); id. at 577 (opinion of Black, J.). Such communications serve the very First Amendment values that respondent invokes. /3/ It is, moreover, particularly vital that these lines of communication be kept open in the case of the military. The military "is, by necessity, a specialized society separate from civilian society" (Parker v. Levy, 417 U.S. 733, 743 (1974); see also Department of the Air Force v. Rose, 425 U.S. 352, 367-368 (1976)). It is reasonable for the government to attempt to ensure that the mutual isolation of the military and civilian communities, which is necessary to a degree, not become excessive and problematic. The open house program is a principal means used by the government for alleviating this isolation. It is of course natural for the military, when presenting itself to the civilian public at an open house, to attempt to create a pleasant atmosphere and to portray itself in a favorable light. But the military is also fully prepared to respect the First Amendment rights of those who attend open houses and hold unfavorable views of the military or of government policy. What no commander can responsibly tolerate is a threat to the security of the base. As we have noted, any open house necessarily increases security risks; persons with free access to the open areas of the base will find it easier to reach the secured areas, and the crowds of civilians provide cover for unlawful activities. The court of appeals' holding, if it prevails, will augment these problems by denying to base commanders the authority to exclude from the open house persons whose previous conduct has proven them to be security threats. Indeed, because of the large number of military installations in the Ninth Circuit, the court of appeals' decision in this case has already caused difficulties, including the cancellation of at least one open house. /4/ Because the court of appeals, on the basis of an erroneous interpretation of the First Amendment and of this Court's governing precedents, has unjustifiably burdened the government's efforts to carry out a worthwhile and important program to enhance communications and understanding between the military and civilian communities, review by this Court is warranted. CONCLUSION The petition for a writ of certiorari should be granted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General DAVID A. STRAUSS Assistant to the Solicitor General APRIL 1984 /1/ This bar letter was sent to respondent by registered mail but was returned unclaimed. /2/ We note that the court of appeals' decision cannot be reconciled with dictum in Persons for Free Speech at SAC, 675 F.2d at 1020 n.9: "(I)t is within the base commander's discretion to admit or deny admittance to (an) open house to people who have previously been issued valid 'ban and bar' letters, whether issued that day or at some earlier time." /3/ See T. Emerson, The System of Freedom of Expression 698 (1970): "Participation by the government in the system of freedom of expression is an essential feature of any democratic society. It enables the government to inform, explain, and persuade * * *. Government participation also greatly enriches the system; it provides the facts, ideas, and expertise not available from other sources." /4/ We are advised that Davis-Monthan Air Force Base, Arizona, has indefinitely postponed its open house program in response to the court of appeals' decision and is awaiting the resolution of this litigation. APPENDIX