UNITED STATES OF AMERICA, PETITIONER V. JAMES VINCENT ALBERTINI No. 83-1624 In the Supreme Court of the United States October Term, 1984 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief For The United States TABLE OF CONTENTS Opinions below Jurisdiction @ Statutory provision involved Statment Summary of argument Argument: I. Respondent's attendance at the open house violated 18 U.S.C. 1382 II. The First Amendment does not probibit the enforcement of Section 1382 against respondent Conclusion Opinions BELOW The opinion of the court of appeals (Pet. App. 1a-15a) is reported at 710 F.2d 1410. The memorandum of the magistrate denying the motion to dismiss the indictment (J.A. 63-68) is unreported. JURISDICTION The judgment of the court of appeals (Pet. App. 17a) was entered on July 22, 1983. A petition for rehearing was denied on January 4, 1984 (Pet. App. 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 petition was filed on that date and granted on December 3, 1984. The jurisdiction of this Court rests on 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. QUESTIONS 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. In its order granting certiorari, the Court requested the parties also to address the following question: Whether respondent's attendance at the "open house" at Hickam Air Force Base on May 16, 1981, was the kind of reentry that Congress intended to prohibit in 18 U.S.C. 1382. 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. As a consequence of this incident, respondent also received a "bar letter" signed by the commanding officer of Hickam. Pet. App. 3a n.1. This letter stated (J.A. 43): You are being removed as a trespasser from Hickam Air Force Base, a military reservation, and ordered not 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. The second paragraph of the bar letter stated: "Your attention is invited to 18 U.S.C. 1382" (J.A. 43), and then quoted that statute, which makes it unlawful for any person to reenter a military installation "after having been removed therefrom or ordered not to reenter by any officer or person in command." In March 1981, respondent, according to his own testimony, unlawfully entered the Nuclear War Policy and Plans Office at Camp Smith, Hawaii, a sensitive and secured area, for the purpose of engaging in what respondent described in court as "a rather serious clear-cut case of non-violent civil disobedience" (J.A. 30). Respondent testified that he was not prosecuted for this action, but as a result of it the commander of Hickam Air Force Base issued respondent another bar letter, which was sent to respondent by registered mail but was returned unclaimed. Respondent volunteered, in his testimony at trial, that he had "received several bar letters over the years from a number of military bases here in Hawaii" (ibid.). /1/ On May 16, 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 permitted to enter certain portions of the base, and various events are held for their benefit. For example, in this case the Air Force displayed aircraft and other equipment; servicemen engaged in parachute jumps and "flyovers"; and various amusements were provided, such as musical performances and carnival rides. Certain portions of the base remained closed to the public even during the open house. Pet. App. 2a-3a; J.A. 44-47. Respondent was apprehended during the open house while he was accompanying a group of persons engaged in an antiwar demonstration. The other demonstrators passed out leaflets and held up a sign, but respondent himself did neither. See J.A. 12, 25; Br. in Opp. 5 & n.9. /2/ The testimony at trial showed that before respondent was approached by any base personnel, the base commander had recognized respondent as the holder of a bar letter and so advised a base security officer. That officer then sought out respondent, approached him, and said respondent's name; when respondent answered, the officer asked him for identification. Respondent presented a driver's license bearing his name and was taken into custody. Base security officers subsequently confirmed that respondent had received a bar letter. See J.A. 9-11, 13-14, 35, 36. Respondent was charged with violating 18 U.S.C. 1382. After a trial before a judge in the United States District Court for the District of Hawaii, he was convicted and sentenced to three months' imprisonment (J.A. 1). 2. The court of appeals reversed respondent's conviction (Pet. App. 1a-15a). The court "reject(ed) the contention that newspaper advertisements inviting the general public fulfilled the 'written persmission' requirement of the bar letter" (id. at 4a) but ruled that respondent's conviction violated the First Amendment. The court of appeals began its discussion by stating that respondent's "first amendment argument rests upon the assertion that on Armed Forces Day Hickam was a 'public forum' where the right to leaflet could not be unreasonably circumscribed" (Pet. App. 4a). Almost all of the court of appeals' opinion was then devoted to a lengthy analysis of whether Hickam was indeed 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" (id. at 5a). But the court concluded that "the open portions of Hickam Air Force Base" during the open house constituted "a public forum," or at least "a 'limited public forum'" (id. at 8a, 10a). The court further ruled that respondent's "manner of expression was not basically incompatible with (the) activity of Hickam at that particular time" (id. at 11a). The court accordingly, stated (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 (Pet. App. 13a-14a). The court 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" (Pet. App. 13a). SUMMARY OF ARGUMENT I. Respondent's attendance at the open house at Hickam violated 18 U.S.C. 1382. The plain language of that statute alone makes this conclusion manifest. Section 1382 makes it unlawful to "reenter() of (be) found within any (military) * * * installation, after having been * * * ordered not to reenter" by the commanding officer. Hickam is unquestionably a military installation; respondent admitted that he had received a letter ordering him not to reenter Hickam; and under no remotely plausible meaning of the terms can it be denied that respondent both "reenter(ed)" Hickam and was "found within" the base. The legislative history and structure of Section 1382 confirm the conclusion dictated by the plain language. The legislative history shows that Congress intended the second paragraph of Section 1382 -- the provision under which respondent was convicted -- to apply primarily in situations in which a military base is generally open to members of the public. Specifically, the purpose of Section 1382 was stated to be to ensure that base commanders would not be powerless when individuals they had barred from the base repeatedly reentered it -- a situation that will generally arise only when the general public has access to the base. Moreover, the second paragraph of Section 1382 would be superfluous unless it were intended to apply in situations in which a base is open to members of the public generally; the first paragraph is sufficient to exclude unauthorized persons in other situations. There is no basis for distinguishing between a situation in which a base is routinely open to members of the public -- the situation for which the second paragraph of Section 1382 is primarily intended -- and a one-day open house. Indeed, as a practical matter, the prohibitions contained in Section 1382 are more acutely needed during an open house; the large crowds of strangers, and the fact that they are on a base sufficiently sensitive that it is ordinarily closed to the public, create security concerns that are significantly greater than those that exist on a base that is routinely open to the public. II. The First Amendment does not prohibit the enforcement of Section 1382 against respondent. Contrary to the court of appeals' approach, this case does not involve the right of members of the public to demonstrate on Hickam during an open house. Rather, it involves the enforcement of Section 1382 -- a wholly neutral prohibition that is unrelated to the content of speech or even to whether speech has occurred at all -- against an individual who had previously been barred from the base. Respondent was barred from Hickam for reasons unrelated to speech, and he was prosecuted not because he engaged in any form of communication but solely for his act of reentering the base. Any incidental effect that the application of this neutral, non-speech related prohibition might have had on respndent's exercise of his First Amendment rights is more than offset by the government's important interests in protecting military installations against persons who have proven themselves to be a threat to their security and good order. This Court has described a commanding officer's authority to exclude civilians from his base as a "historically unquestioned power" (Cafeteria Workers v. McElroy, 367 U.S. 886, 893 (1961)). When an open house is held at a base that is ordinarily closed, the need for a commanding officer to be able to exercise this authority is, if anything, greater than in other contexts. The exercise of that congressionally authorized power here did not deprive respondent of the opportunity to express his views by any means not involving his reentry onto the base. ARGUMENT I. RESPONDENT'S ATTENDANCE AT THE OPEN HOUSE VIOLATED 18 U.S.C. 1382 In its order granting certiorari, the Court requested the parties to address the question "(w)hether respondent's attendance at the 'open house' at Hickam Air Force Base on May 16, 1981, was the kind of reentry that Congress intended to prohibit in 18 U.S.C. 1382." J.A. 69. We submit that "(t)he plain language of (Section 1382) is sufficient to resolve th(is) question" (United States v. Weber Aircraft Corp., No. 82-1616 (Mar. 20, 1984), slip op. 6). If 18 U.S.C. 1382 is interpreted according to its plain meaning, respondent unquestionably violated it. Moreover, the legislative history of Section 1382, far from contradicting the plain language, provides further evidence that Congress intended to prohibit actions like respondent's; and important policy considerations support the same conclusion. /3/ A. Section 1382 is not ambiguous. It provides that "(w)hoever reenters or is found within any (military) 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" is guilty of a misdemeanor. It cannot seriously be disputed that Hickam is a military installation covered by the statute; respondent has never suggested otherwise. Nor can it plausibly be contended that those portions of Hickam that were opened to the public during the open house somehow temporarily ceased to be a "military installation"; Section 1382 sweepingly encompasses all military installations of every description. There is no basis for any suggestion that Congress meant to distinguish among different areas within military installations on the basis of the kinds of activities by the military that are occurring within them at a particular time. See generally United States v. Parrilla Bonilla, 648 F.2d 1373, 1383-1385 (1st Cir. 1981); United States v. Douglass, 579 F.2d 545, 547 (9th Cir. 1978). Respondent "reenter(ed)" Hickam within the plain meaning of that term. He had previously entered it to commit the acts of vandalism that resulted in his receiving a bar letter, and he passed through its gates again to attend the open house. See J.A. 54. Only by giving a wholly artificial meaning to the word could one avoid characterizing this as "reentering." In addition, Section 1382 prohibits the holder of a bar letter not only from "reenter(ing)" an installation but also from being "found within" a military base. The information filed against respondent charged that he "did unlawfully and knowingly * * * reenter and was found within a military reservation" (J.A. 3). Under no conceivable meaning of the term can it be said that respondent was not "found within" Hickam at the time he was apprehended. Finally, respondent acknowledged that he had received a bar letter from the commanding officer at Hickam; this letter "ordered (him) not to reenter" in the plainest terms. The bar letter referred specifically to Section 1382, so there can be no doubt that it is an "order" within the meaning of the statute. See pages 2-3, supra. Respondent challenged the validity of this order in the court of appeals on the ground that it was stale (see Appellant C.A. Br. 11-13; see also Br. in Opp. 9, 31 & n.28), but the court expressly declined to reach that question (Pet. App. 15a), and it is not before this Court. B. The plain language of Section 1382 thus leaves no room for disagreement over whether respondent violated that provision. This Court has frequetnly stated that "'(i)f the statutory language is unambiguous, * * * "that language must ordinarily be regarded as conclusive"'" (Russello v. United States, No. 82-472 (Nov. 1, 1983), slip op. 4, quoting United States v. Turkette, 452 U.S. 576, 580 (1981), and CPSC v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). /4/ As the Court recently reiterated (Garcia v. United States, No. 83-6061 (Dec. 10, 1984), slip op. 5 (citations omitted)): (O)nly the most extraordinary showing of contrary intentions from (other indicia of legislative intent) would justify a limitation on the "plain meaning" of the statutory language. Where we find the terms of a statute unambiguous, judicial inquiry is complete, except in "'rare and exceptional circumstances.'" In any event, the structure of Section 1382, its legislative history, and important practical considerations all confirm what the plain meaning of Section 1382 establishes -- that respondent's conduct constituted a violation of that provision. We can discern three possible arguments respondent might make in contending that he did not violate Section 1382. He might assert that the acts for which he was barred were not sufficiently severe to warrant a barring order; that Section 1382 did not bar his reentry because he intended to participate in a political demonstration; or that Section 1382 did not apply because he reentered at a time when members of the public generally were invited onto the base. None of these possible arguments finds any more support in the legislative history, or in any other source of congressional intent, than it does in the language of Section 1382. 1. Respondent has not claimed that his bar letter was issued for improper or inadequate reasons, and no such claim could be made. Respondent received his bar letter because he engaged in criminal acts of destructive vandalism. A commanding officer has broad power "summarily to exclude civilians from the area of his command" (Cafeteria Workers v. McElroy, 367 U.S. 886, 893 (1961)) and may do so for any reason that is not arbitrary or unconstitutional; he may even exclude persons for conduct that is, unlike respondent's, not criminal. See id. at 896-899. Indeed, as we explain below, the legislative history reveals that Congress specifically envisioned that Section 1382 would be used to exclude persons who have engaged in undesirable but noncriminal acts, such as enticing servicemen to "dives" and "saloons" off the base. See pages 14-16, infra. /5/ 2. Respondent also cannot claim that the plain terms of Section 1382 should not apply to him because he reentered the base for the purpose of engaging in a political demonstration. See, e.g., Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960) (Blackmun, J.). We know of nothing in the legislative history of Section 1382 remotely suggesting that Congress intended that a person barred from a military base would be allowed to reenter for the purpose of demonstrating. As we explain in Part II of this brief, respondent had no constitutional right to reenter the base for that purpose; it therefore cannot be suggested that Section 1382 should be construed to permit such a reentry in order to avoid a constitutional question. Moreover, the structure of Section 1382 firmly precludes any argument that respondent's purpose in reentering the base was material. See Holdridge, 282 F.2d at 308-310. Respondent was charged with a violation of the second paragraph of Section 1382, which, as we have noted, contains an unqualified prohibition against reentering or being found within a base. By contrast, the first paragraph of Section 1382 makes it a crime to "go() upon any military installation, for any purpose prohibited by law or lawful regulation" (emphasis added). Congress could have, but did not, enact a similar qualification in the second paragraph, specifying that reentry after receiving a bar letter is forbidden only if done for certain purposes. "The deliberate omission of a similar moderating provision in (the second paragraph) compels the conclusion that Congress meant (it) * * * to be administered as written" (INS v. Phinpathya, No. 82-91 (Jan. 10, 1984), slip op. 6) -- that is, that Congress meant to prohibit all reentries by previously barred persons, whatever their purpose. See, e.g., NLRB v. Bildisco & Bildisco, No. 82-818 (Feb. 22, 1984), slip op. 7-8. 3. Finally, the fact that respondent reentered Hickam during an "open house," when members of the public generally were permitted on the base, is not a reason to depart from the plain dictates of Section 1382. The prohibition that became Section 1382 was first enacted in 1909. In considering the legislation Congress did not, of course, specifically address itself to military open houses. But Congress was aware at the time that many military installations were open to members of the public generally. /6/ The same is true today: some installations are routinely open to members of the public; others are open on specific occasions or for certain purposes, including but not limited to open houses. When a base is not open to the public, individuals seeking to enter are screened, and they can enter only with specific authorization. It is entirely clear from both the legislative history of Section 1382 and its structure that Congress intended its prohibitions to apply with full force on occasions when an installation is open to the public. Indeed, the prohibition respondent violated has its primary application in such circumstances. There is no principled basis for distinguishing a base that is open to the public for an "open house" from one that is open for other purposes. On the contrary, as a practical matter the need for the additional protection of base security that Section 1382 provides is especially great during a military open house. a. i. The legislative history of the provision that is now Section 1382 is scant but informative. The prohibition was first enacted -- in a form indistinguishable, for present purposes, from the current Section 1382 -- as Section 45 of the Act of Mar. 4, 1909, ch. 321, 35 Stat. 1097. /7/ Congress clearly envisioned at the time that the prohibition now contained in the second paragraph of Section 1382 would apply primarily to bases that are open to members of the public. Both committees that considered Section 45 explained its purposes as follows (S. Rep. 10, 60th Cong., 1st Sess. Pt. I, at 16 (1908); H.R. Rep. 2, 60th Cong., 1st Sess. Pt. I, at 16 (1908)): (It) is designed to punish persons who, having been ejected from a fort, reservation, etc. return for the purpose of obtaining information representing the strength, etc. of the fort, etc., or, for the purpose of inducing men to visit saloons, dives, and similar places. Such persons may now go upon forts and reservations repeatedly for such purposes and there is no law to punish them. This statement reveals that the committees must have understood that the legislation would apply to bases that were freely open to members of the public, because the problem of "persons * * * go(ing) upon forts and reservations repeatedly for (improper) purposes" is likely to arise only when the public at large is allowed access to a base. If an installation is closed to the public -- that is, if access to the base is controlled and a civilian can enter only with specific permission -- the commander can simply refuse to admit "(s)uch persons" to the base; he has little need for the prohibition that is now the second paragraph of Section 1382. The only significant floor debate on Sectin 45 confirms the conclusion that this prohibition was intended principally for bases that are open to the public. Representative Williams stated that the proposed legislation was intended to prevent espionage on military bases (42 Cong. Rec. 689 (1908)); Representative Moon, who introduced the legislation (42 Cong. Rec. 479 (1908)), then made the following remarks (42 Cong.Rec. 689 (1908)): (T)his section * * * was urged * * * by the War Department not only for the purposes enumerated (by Representative Williams), but to protect soldiers from people coming onto the reservation and taking them off to dives and illicit places surrounding the encampments. It was said to be a frequent occurrence that people would come with carriages and conveyances and time after time lure the soldiers away. They could be ordered away, but there was no law to punish them for reentering and constantly returning, and therefore they constantly defied authority by reappearing upon the reservation. Therefore this was recommended in obedience to the request of the War Department. As a practical matter, individuals could have engaged in the practices Representative Moon described only on bases that were generally open to the public. It would be very difficult, if not impossible, for a person whom the authorities wished to exclude to reenter a base repeatedly, bringing "carriages and conveyances," unless the base were open to the general public. Thus Representative Moon also plainly envisioned the prohibition at issue here as a means of aiding commanders in their control of access to bases that were generally open to members of the public. /8/ ii. The structure of Section 1382 confirms what is evident from the legislative history: Congress intended the second paragraph to be invoked in situations in which members of the public are generally allowed to enter an installation, but a particular individual has acted in a way that justifies the commanding officer in ordering that he not be allowed to reenter. The second paragraph of Section 1382 would be nearly superfluous unless it were directed to situations in which the public at large is generally permitted to enter a base. The first paragraph prohibits any person from "go(ing) upon" a military installation "for any purpose prohibited by law or lawful regulation." It has been uniformly held that this provision alone is sufficient to prohibit any person from knowingly entering a base in violation of regulations that limit civilian access. /9/ The second paragraph of Section 1382 is, therefore, not needed if access to a base is controlled and limited to certain categories of civilians; it is needed only if the public generally is free to enter. To limit Section 1382 to circumstances in which a base is not generally open to the public would, therefore, render the second paragraph unnecessary. Since "(t)he statute admits a reasonable construction which gives effect to all of its provisions," there is no reason to "adopt a strained reading which renders one part of a mere redundancy." Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307-308 (1961); see e.g., Bell v. New Jersey, 461 U.S. 773, 789 (1983). Indeed, it would be peculiar to conclude that the second paragraph is designed principally to aid commanders in enforcing a general prohibition against entering a base applicable to all members of the public. The second paragraph contemplates -- although it does not necessarily require -- that a person will not be criminally liable until he returns to a military base for the second time after having previously engaged in some improper activity. See Holdridge, 282 F.2d at 308-309. But if Congress had been addressing situations in which members of the public are generally not allowed on military installations at all, it would have had no reason to treat a person who intruded on the base "like the dog with his proverbial first bite" (id. at 311 (in a different context)); Congress would simply have imposed criminal liability for the first entry. Congress must, therefore, have intended the second paragraph of Section 1382 to apply primarily to situations in which members of the public can lawfully enter a base unless they have been barred. b. It is therefore entirely clear that the prohibition that respondent was charged with violating applies in -- indeed, is principally intended for -- situations in which a military installation is generally open to the public. There is no basis for distinguishing an "open house" from other such situations. Nothing in the language of the statute itself would remotely support such a distinction. And as a practical matter, the need for prohibitions like Section 1382 is more, not less acute during an open house than when a base is generally open to the public. Military installations are not closed gratuitously; the military generally permits the maximum degree of openness to the public that is consistent with the needs of military discipline and security. The nature of the operations and equipment at some installations permits a high degree of public access: the gates may be left permanently unguarded, and the public may be allowed to enter any unsecured area at any time. See, e.g., Greer v. Spock, 424 U.S. 828, 830 (1976) (describing Fort Dix, New Jersey); Flower v. United States, 407 U.S. 197, 198 (1972) (describing Fort Sam Houston, Texas). At other installations -- including most Air Force bases -- the nature of the operations and equipment precludes such a high degree of public access. It is, however, usually possible to set aside one day on which special security precautions can be taken and the public can be invited for an open house to certain (although not all) areas of the base. Thus, in both the case of a normally "closed" base on the day of an open house and the case of a base that is routinely open, the military has balanced the interest in openness against the particular security needs of the base. And in both instances, those security needs remain substantial; indeed, the fact that a base is normally closed means that special precautions are required during an open house. Accordingly, there is no reason to believe that Congress would have intended certain protections -- such as Section 1382 -- to apply to one situation but not the other. Since, as we have shown, Congress plainly intended Section 1382 to apply to bases that are routinely open, it must have intended that statute to apply to open houses as well. In addition, any attempt to distinguish between "open houses" and other situations in which a base is open to the public would encounter serious line-drawing problems. It is not uncommon for the military to permit members of the public to enter otherwise closed areas for specific purposes, such as to attend a ceremony or an exhibition. Hickam itself, for example, will sometimes allow civilians to enter for "special events" such as weddings, parties, and sports tournaments. See 15th Air Base Wing Reg. 125-4, paras. 4.b(3), 4.c(3) (20 Oct. 1979). If Section 1382 were held not to apply to open houses, questions would immediately arise over whether the holders of bar letters must also be allowed to enter the base during other events and ceremonies that arguably bear some resemblance to open houses. There is no reason to believe that Congress intended distinctions of this kind to be drawn. On the contrary, every indication of legislative intent points toward one conclusion: Congress intended to prohibit the reentry of any person who has been ordered not to reenter, irrespective of the extent to which the general public is permitted on the base. Finally, as a practical matter, the reason for enforcing the prohibition against reentry are substantially stronger during an open house on an otherwise closed base. As we have noted, the decision of the Air Force to close Hickam to members of the general public except on the day of the open house reflects a judgment that the base is a sensitive area in which security is especially important. While the most sensitive portions of the base remain closed even during an open house, it is generally easier for a person to gain access to them once he has entered the base. Moreover, the large number of strangers who enter the base during an open house provide cover for any individual who seeks to engage in destructive activities. At the same time, the base security staff will generally be preoccupied with duties arising out of the open house and will be less able to protect against such threats. For these reasons, the need to prohibit the reentry of persons who, like respondent, have proven themselves to be threats to the security and good order of an installation is enhanced -- not diminished -- during an open house at an installation that is usually closed to the public. II. THE FIRST AMENDMENT DOES NOT PROHIBIT THE ENFORCEMENT OF SECTION 1382 AGAINST RESPONDENT The court of appeals' preoccupation with the question whether Hickam was a "public forum" during the open house led it to commit a fundamental error. The court approached this case as if the fact that respondent had received a bar letter was of secondary significance and the principal issue was whether the commander of Hickam could exclude all demonstrators during an open house. For example, after a lengthy discussion the court of appeals announced (Pet. App. 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." But whether members of the public can demonstrate at Hickam during an open house is not the issue in this case at all. Respondent was not an ordinary member of the public, and he was not charged with participating in a demonstration; unlike other members of the public, he had received a bar letter, and he was not prosecuted for any form of communication but simply because he reentered the base in violation of Section 1382. Thus the only question in this case is whether the First Amendment forbids the government from enforcing the prohibition contained in the second paragraph of Section1382 -- a content-neutral prohibition that is wholly unrelated to the regulation or suppression of speech -- against respondent, an individual who was barred fron Hickam because he had engaged in acts of vandalism. This Court's decisions leave no doubt what the answer to that question must be. A. 1. From the earliest days of the Republic, commanding officers have possessed, and exercised, the authority to exclude civilians from the area of their command. As this Court has stated, an opinion issued by Attorney General Butler in 1837 reveals that this prerogative "was even then of long standing." Cafeteria Workers v. McElroy, 367 U.S. 886, 892 (1961); see id. at 893, quoting 3 Op. Att'y Gen. 268, 269 (1837). The commanding officer's authority to control access to his base has been repeatedly and consistently recognized since then. See Cafeteria Workers, 367 U.S. at 893; citing, inter alia, 26 Op. Att'y Gen. 91, 92 (1906); Brief for the Respondents at 37-55, Cafeteria Workers v. McElroy, supra (No. 97, 1960 Term). /10/ Indeed, the Court has described this authority as "the historically unquestioned power of a commanding officer summarily to exclude civilians from the area of his command" (Cafeteria Workers, 367 U.S. at 893; see Greer v. Spock, 424 U.S. 828, 838 (1976)). While a commanding officer is not free to exercise this power arbitrarily or for unconstitutional purposes (see pages 27-28, infra), there is, as we have noted, no doubt that respondent was properly barred from Hickam for his previous acts. By enacting the second paragraph of Section 1382, Congress provided a criminal sanction to support the exercise of the commanding officer's authority to exclude persons from the base. As the legislative history of Section 1382 shows (see pages 14-16, supra), Congress became aware that commanding officers' orders were being flouted with impunity, and it enacted Section 1382 so that those orders could be enforced. The court of appeals declared unconstitutional the application of this Act of Congress and, by necessary inference, an exercise of the "historically unquestioned" authority of Hickam's commander, But little of the court of appeals' opinion is devoted to an assessment of the interests underlying either this traditional military authority or the supporting statutory enforcement mechanism enacted by Congress. Indeed, the court of appeals gave only cursory treatment to the fact that respondent had been barred from the base by the commanding officer and that his act of reentry violated an Act of Congress and was the sole basis of the criminal charge against him. Instead, the court of appeals focused its attention on the theoretical question of the degree to which the open house at Hickam could be characterized as a "public forum." In our view, the court of appeals' conclusion that Hickam was some variety of public forum during the open house is, at the very least, open to serious question. /11/ But whether Hickam during the open house was a public forum is immaterial to the correct resolution of this case; even if we assume arguendo that Hickam was a public forum during the open house, the enforcement of Section 1382 against respondent did not violate the First Amendment. 2. a. It would not be an overstatement to say that the First Amendment has essentially no bearing on this case at all. Section 1382, as applied to respondent, is a neutral measure that is unrelated to the suppression or regulation of speech: it makes no reference to the content of speech or indeed to whether speech has ever occurred at all. To be sure, if an individual were charged with a violation of Section 1382 on the basis of a bar letter he received for engaging in protected expressive activities, that application of Section 1382 might be said to involve a speech-related prohibition. See pages 35-36, infra, discussing Flower v. United States, 407 U.S. 197 (1972). But respondent does not contend, and cannot possibly contend, that he received his bar letter for engaging in activity protected by the First Amendment; he received it for destroying government property, an act for which he was convicted of a crime. Of course, a person subject to a bar letter may challenge the letter in a proper action for declaratory relief. /12/ If his claim is that the bar order is unconstitutional, he may, under this Court's decision in Flower v. United States, supra, raise its invalidity as a defense to a prosecution under Section 1382. Cf. United States v. United Mine Workers, 330 U.S. 258 (1947). 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 Cafeteria Workers, 367 U.S. at 897-898. A bar letter issued for such an impermissible purpose cannot support a confiction 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 any arbitrary, capricious, or discriminatory manner" and that this authority must be "judiciously applied" on the basis of "reasonable grounds" (DOD Directive No. 5200.8, para. 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." A.F. Reg. 355-11, para. 1.b (10 Sept. 1971). See Serrano Medina v. United States, 709 F.2d 104, 109-110 (1st Cir. 1983); Bridges v. Davis, 443 F.2d 970, 973-974 (9th Cir. 1971), cert. denied, 405 U.S. 919 (1972); Lloyd, Unlawful Entry and Re-entry into Military Reservations in Violation of 18 U.S.C. Section 1382, 53 Mil L. Rev. 137, 150-152 (1971). Thus the holder of a bar letter may challenge it either on the ground that its issuance violated the First Amendment or on the ground that it was arbitrary and capricious. But as we have noted, respondent has not raised, and would have no basis for raising, such a claim in this case. Just as the issuance of the bar order to respondent did not implicate the First Amendment, so the enforcement of the order through Section 1382 is wholly unrelated to the regulation or suppression of speech. Specifically, it is immaterial that respondent's reason for defying the bar order was that he wished to accompany demonstrators onto the base; Section 1382 prohibited respondent from reentering Hickam irrespective of whether the purpose of this reentry was to engage in expressive activity. There is no showing that respondent was singled out for prosecution because he was associated with persons engaged in a demonstration -- much less because of the particular views of the demonstrators. In all of these respects, the First Amendment is not implicated in this case at all. b. The enforcement of Section 1382, by precluding respondent from reentering Hickam, did, of course, have the necessary effect of preventing respondent from engaging in expressive activities within the boundaries of the base. But this circumstance alone does not give rise to a substantial First Amendment claim. Respondent's reentry onto the base violated a neutral prohibition unrelated to speech; an individual in respondent's position should not be allowed to escape criminal liability merely because, while committing the unlawful act of reentering the base, he also takes care to engage in expressive activities. Moreover, unlike many restrictions on expression that this Court has upheld, /13/ the prohibition that respondent violated was not unilaterally imposed on him by the government; by deliberately committing the acts of vandalism that caused him to be barred, respondent was himself responsible for any limitation that was pla(ed on his subsequent ability to engage in expressive activities at Hickam. It is not unconstitutional for Congress to authorize the Air Force to insist that a person may not engage in acts of vandalism on a base if he wishes subsequently to use the base as a forum for political expression. 3. If the enforcement of Section 1382 against respondent implicated First Amendment concerns at all, the most that can be said is that it imposed an "incidental limitations on (respondent's) First Amendment freedoms" (United States v. O'Brien, 391 U.S. 367, 376 (1968)). This by itself, of course, does not draw into question the constitutionality of Section 1382. "(T)he First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places" (Members of the City Council v. Taxpayers for Vincent, No. 82-975 (May 15, 1984), slip op. 22). As the Court has said in the specific context of a military base, "(t)he guarantees of the First Amendment have never meant "that people who want to propagandize protests or views have a constitutional right to do so whenever and however they please.'" Greer v. Spock, 424 U.S. 828, 836 (1976), quoting Adderley v. Florida, 385 U.S. 39, 48 (1966). Thus, even when a public forum is involved, this Court "'ha(s) often approved restrictions * * * provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing so they leave open ample alternative channels for communication of the information.'" 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). In United States v. O'Brien, supra, the Court formulated the test as follows (391 U.S. at 377): (W)e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it sufthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest. However the test is formulated, it is easily satisfied by Section 1328. /14/ a. The first element of the O'Brien standard requires that Congress have the constitutional authority to enact the measure that imposes an incidental restriction on expression. Of course, "(t)he control of access to a military base is clearly within the constitutional powers granted to both Congress and the President." Cafeteria Workers, 367 U.S. at 890. As we have explained, Congress enacted Section 1382 in order to protect the security of military installations and to ensure that their ability to carry out their mission would not be jeopardized by the actions of intruders. See pages 14-16, supra. Not only does Congress have the constitutional authority to enact legislation for such purposes (see U.S. Const. Art. I, Section 8, Cls. 12-14; Greer, 424 U.S. at 836-840; Cafeteria Workers, 367 U.S. at 890) but that constitutional authority is unusually "broad and sweeping" (O'Brien, 391 U.S. at 377; see generally Chappell v. Wallace, 462 U.S. 296, 301 (1983); Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981)). b. The second element specified by O'Brien -- and echoed by the test applicable to time, place, and manner restrictions on expression in a public forum -- is that the government interest be substantial. In a narrow sense, the interest promoted by enforcing Section 1382 against respondent is the obviously substantial interest in preventing a person who has proven himself to be a threat to the security of a military installation from obtaining another opportunity to destroy governmental property. But the constitutionality of enforcing Section 1382 is not limited to cases in which the recipient of a bar letter has previously destroyed government property. The government has a substantial interest in enforcing any reasonable bar order issued by a base commander. The extraordinary historical pedigree of the base commander's authority to exclude persons from the area of his command itself testifies to the importance of this interest. In addition, Congress cannot be expected to catalogue, ahead of time and with precision, all of the various causes that might justify barring an individual from a military installation. Not only would it be impossible for Congress to anticipate every contingency that might arise, but distinctively military concerns must inform the decision whether an individual has proved himself to be a threat to the security and good order of a base. As the Court has often recognized: (T)he military is, by necessity, a specialized society separate from civilian society. * * * (T)he military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that "it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." Parker v. Levy, 417 U.S. 733, 743 (1984), quoting United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955); see also Department of the Air Force v. Rose, 425 U.S, 352, 367 (1976), quoting Orloff v. Willoughby, 345 U.S. 83, 94 (1953). A base commander is in the best position to understand the extent to which particular acts by a civilian are inconsistent with the mission of his base and its specialized needs and to determine whether a bar order is warranted. c. The third element of the O'Brien standard is that the measure in issue be supported by interests "unrelated to the suppression of free expression" (391 U.S. at 377). As we have explained, Section 1382 plainly satisfies this requirement. Respondent did not receive a bar letter for engaging in activities related to expression, and he violated Section 1382 by reentering the base irrespective of whether his reentry was for the purpose of engaging in a political demonstration, d. The final element of the O'Brien test is that "the incidental restriction on alleged First Amendment freedom" be "no greater than is essential to the furtherance of (the government's) interests" (391 U.S. at 377). The court of appeals did not explicitly attempt to apply either the O'Brien criteria or any other test to Section 1382, but it does appear that the court -- while acknowledging that Section 1382 is necessary in many contexts to protect the government's interest in ensuring the security of military installations -- believed that the government's interests would not be prejudiced if Section 1382 were not to apply during military open houses. See Pet. App. 14a. The first difficulty with the court of appeals' view is that it is based on a misunderstanding of the practicalities of administering a military open house. As we have noted, it is generally more difficult to maintain security during an open house, and therefore more important that the commanding officer be able to exercise his "historically unquestioned power * * * to exclude civilians from the area of his command" (Cafeteria Workers, 367 U.S. at 893). The large crowds of unfamiliar persons present at an open house increase the difficulty of maintaining the security of the base; a person determined to engage in, for example, the kind of conduct for which respondent received a bar letter -- acts of malicious mischief in sensitive areas of the base -- can use the crowds as cover for both his movement through the base and his escape. When only the most sensitive areas of the base are closed, it is easier for an individual to gain access to them than it is when the entire base is closed and any crossing of its boundaries will be monitored. Finally, during an open house the base security staff is stretched thin and assigned unaccustomed responsibilities. This, too, would make it easier for a person who has already proved himself to be a threat to the good order of the base to engage in improper activities. A more fundamental difficulty with the court of appeals' approach is that Congress and the Air Force, not the court of appeals, are responsible for determining the extent to which base security requires that persons who have justifiably been barred from the base continue to be excluded during an open house. The court of appeals' conclusion "represent(s) no more than a disagreement with the (Air Force) over how much protection the (base) require(s) or how an acceptable level of (security) is to be attained." Clark v. Community for Creative Non-Violence, No. 82-1998 (June 29, 1984), slip op. 11. Since the enforcement of Section 1382 unquestionably "will avoid a measure of * * * threatened damage" to the security of the base (ibid.), the Air Force is entitled to enforce it in appropriate cases. /15/ B. In concluding that respondent's bar letter did not affect his right to enter the base during the open house, the court of appeals relied almost exclusively on Flower v. United States, 407 U.S. 197 (1972). But Flower stands only for a proposition we have acknowledged: 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. This principle is of no help to respondent, whose bar letter was unquestionably valid and was issued for reasons unrelated to expression. 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 and convicted under Section 1382. This Court ordered that his conviction be set aside. But Flower, unlike respondent, had received his bar letter for engaging in the same activity he was engaged in when he was arrested -- 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, as we have noted, 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 (see Pet. App. 13a), 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 reason for doing so. See Greer, 424 U.S.AT 838 n.10. In particular, we think it clear that the decision in Flower would not have been the same if Flower had received his bar letter for espionage, for distributing narcotics to servicemen -- or for destroying military files. Flower is unlike this case in another respect, as well. In Greer v. Spock, supra, this Court adminished that it is a "mistake()" to conclude 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," they may also freely exercise the right to demonstrate and pass out leaflets in that place. 424 U.S. at 836. Instead, the Court explained, "(t)he 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" (id, at 835). Indeed, as the Court noted in Greer, Flower "rested upon the premise that 'New Braunfels Avenue was a completely open street' and that 'the military ha(d) abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue.'" Ibid., quoting Flower, 407 U.S. at 198. In this case, whatever the merits of the court of appeals' conclusion that Hickam became a "public forum" during the open house -- and as we have noted, we consider that conclusion to be highly questionable (see pages 23-26 note 11, supra) -- it cannot possibly be claimed that the Air Force abandoned any claim of special interest in what occurred during the open house. If the Air Force had simply donated portions of Hickam to a private organization for a day for the purpose of allowing that organization to conduct a fair or carnival, it might have created a situation like that in Flower. But all portions of Hickam remained a military base, dedicated to a military mission, not only before and after but during the open house. The open house was held for the purpose of informing members of the public about the Air Force and about Hickam, and of alleviating the isolation of the base from the surrounding community. See pages 38-40, infra. These are military functions -- functions that are perhaps less vital than basic training, for example, but nonetheless important functions that are properly performed by the military. See Persons For Free Speech at SAC v. United States Air Force, 675 F.2d 1010, 1016 (8th Cir.) (en banc), cert. denied, 459 U.S. 1092 (1982) ("While the primary mission of the Air Force may be the defense of the United States, this does not mean that good relations between a military base and the community in which it exists is not legitimately supportive of that mission."). Accordingly, there is no basis for regarding Hickam during the open house as the equivalent of New Braunfels Avenue, "a public thoroughfare * * * no different from (any) other" (Greer, 424 U.S. at 835),or as comparable to "a public park or fairgrounds for a day" (Pet. App. 9a). C. The irony of the court of appeals' approach is that if it were to prevail, it would threaten to disserve, rather than promote, First Amendment values. Military open houses -- which are common /16/ -- serve a variety of worthwhile purposes, such as promoting good relations between the military base and its surrounding community and making the community aware of the public services that the base can offer. But beyond that, it promotes First Amendment values for the government to communicate with its citizens. One of the primary responsibilities of the government in a democratic society is to inform citizens of its activities so that they may evaluate its performance. /17/ See Barr v. Matteo, 360 U.S. 564, 575-575 (1959) (plurality opinion of Harlan, J.); id. at 577 (Black, J., concurring). Such communications serve the very First Amendment interests that respondent and the court of appeals invoke. 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."). It is, moreover, particularly vital that these lines of communication be kept open in the case of the military. Precisely because the military "is, by necessity, a specialized society separate from civilian society" (Parker v. Levy, 417 U.S. 733, 743 (1974)), it is important for the government to attempt to ensure that the military and civilian communities not become isolated from each other to a degree that is excessive and problematic. As we have noted, many military installations are open to members of the public, who can freely enter unrestricted areas. But where, as is typically the case on Air Force bases, security needs make this impractical, the open house program is a principal means of alleviating the mutual isolation of the military and civilian communities. It is 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. At the same time, the military is of course fully prepared to respect the First Amendment rights of those who attend open houses, although we do not necessarily agree with the court of appeals' assessment of the scope of those rights. But no commander can responsibly tolerate a threat to the security of the base. As we have noted, any open house necessarily increases security risks to some degree; 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 can provide cover for unlawful activities. The court of appeals' holding, if it were to prevail, would 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 threats to the security and good order of the base. For these reasons, the court of appeals' decision not only is without support in First Amendment principles; it unjustifiably burdens the government's efforts to carry out a worthwhile program that, by enhancing communication and understanding between the military and civilian communities, itself furthers First Amendment values. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. 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 JOHN F. DEPUE Attorney MAJOR ROBERT T. LEE Office of the Judge Advocate General United States Air Force FEBRUARY 1985 /1/ In subsequent testimony, after respondent recounted further details about the bar letters he had received, the trial judge asked him: "Have you collected one from each base yet?" and respondent replied: "Pretty much" (J.A. 39). /2/ One of the demonstrators, in testimony at trial, said that she knew that respondent had been barred from Hickam -- indeed, that "all of us knew" that respondent was barred -- and that she knew "about subsequent cases, too" in which respondent had received bar letters (J.A. 26). /3/ We note in addition that regulations in force at Hickam at the time of the open house specifically provided that "(p)ersons who have been barred from entry to the base will not be permitted entry to the installation during" an open house. 15th Air Base Wing Reg. 125-4, para. 4c(5) (20 Oct. 1979). Base commanders were instructed that these regulations were to be "conspicuously posted at base or station entry points." Id. para. 2. /4/ See also Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 110 (1983); Albernaz v. United States, 450 U.S. 333, 336 (1981); Rubin v. United States, 449 U.S. 424, 430 (1981); United States v. Apfelbaum, 445 U.S. 115, 121 (1980); Lewis v. United States, 445 U.S. 55, 60 (1980); United States v. Oregon, 366 U.S. 643, 648 (1961). /5/ We are advised by the military that today bar letters are typically used to deal with such problems as small-scale drug trafficking. /6/ Indeed, military regulations in force at the time provided that even with respect to the most sensitive military installations -- "posts at which are located at lake or coast defenses" -- "American citizens whose loyalty to their Government (was) unquestioned" were "permitted to visit such portions of the defenses as the commanding officer deems proper." Army Reg. Art. XXXVIII, para. 355 (1908). /7/ The original version of the statute provided as follows: Whoever shall go upon any military reservation, army post, fort, or arsenal, for any purpose prohibited by law or military regulation made in pursuance of law, or whoever shall reenter or be found within any such reservation, post, fort, or arsenal, 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 five hundred dollars, or imprisoned not more than six months, or both. The statute was amended by the Act of Mar. 28, 1940, ch. 73, 54 Stat. 80, and was further amended to its present form by the Act of June 26, 1984, ch. 645, Section 1382, 62 Stat. 765. Neither amendment altered the provision in any way material to the questions presented here. See, e.g., H.R. Rep. 304, 80th Cong., 1st Sess. A102 (1947); S. Rep. 739, 76th Cong., 1st Sess. (1939); H.R. Rep. 1752, 76th Cong., 3d Sess. (1940). /8/ In addition, respondent has repeatedly asserted (J.A. 28-29, 38-39; Appellant's C.A. Br. 20-24; Br. in Opp. 4, 9-10, 32) that even before the open house, he reentered Hickam on several occasions in violation of the bar letter; respondent appears to contend that this conduct -- which no military official ever countenanced -- somehow earned him immunity from prosecution under Section 1382. But Representative Moon's remarks suggest that Section 1382 was intended to deal with individuals who engage in precisely the conduct to which respondent admits: "constantly def(ying) authority" by "reappearing upon the reservation," and "constantly returning," notwithstanding his bar orders, "time after time." /9/ Limitations on public access to a base are specified by regulations, which are generally issued by the base commander. The lower courts have consistently ruled that a person who knowingly enters a base in violation of such a regulation enters "for a () purpose prohibited by" the regulation and therefore violates the first paragraph of Section 1382. See, e.g., Parrilla Bonilla, 648 F.2d at 1377; United States v. Patz, 584 F.2d 927, 929 (9th Cir. 1978); United States v. Mowat, 582 F.2d 1194, 1203-1204 (9th Cir.), cert. denied, 439 U.S. 967 (1978); United States v. Floyd, 477 F.2d 217, 222 (10th Cir.), cert. denied, 414 U.S. 1044 (1973); Holdridge, 282 F.2d at 309. See also United States v. Holmes, 414 F. Supp. 831 (D. Md. 1976); United States v. Bishop, 261 F. Supp. 969 (N.D. Cal. 1966). /10/ We have served a copy of this brief on counsel for respondent. /11/ Under Greer v. Spock, supra, a demonstration like that of respondent's companions would not be constitutionally protected even on a military base that is generally open to the public. As the Court has recently reaffirmed, 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, 461 U.S. 171, 177 (1983), citing Greer, 424 U.S. at 836. The court of appeals distinguished Greer principally on the ground that the nature of the open house was such that "(i)f the Air Force had intended to make Hickam into a public park or fairgrounds for a day, it would have done little more" (Pet. App. 9a); public parks and fairgrounds are generally regarded as public forums. The court of appeals also found it significant that "one of the purposes of the (open house) was to present the military's view in the current arms debate (and) to show the public that its money is being used efficiently" (ibid.) and that respondent's "expression, like that of the Air Force, was directed primarily toward the nonmilitary public" (ibid.). We note first that the court of appeals did not identify any basis for its factual assertions about the resemblance between the open house at Hickam and "a public park or fairgrounds." The district court did not make findings of fact on the precise nature of the open house, and the extent to which the open house at Hickam resembled a fairgrounds or park was not a focus of the litigation in the district court. Air Force regulations in effect at the time of the 1981 open house specifically required base commanders not to "turn (open houses) into fairs, circuses, civilian air shows, or a medium for display of commercial products." A.F. Manual 190-9, para. 4-6.b(4) (22 Sept. 1972). The regulations now in force do the same. See A.F. Reg. 190-1, para. 4-29 (16 Feb. 1982, as amended 28 June 1983). Government officials are presumed to comply with regulations in the absence of contrary evidence. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926). The court of appeals therefore had no warrant for predicating its analysis on the view that the Air Force did all it could to convert Hickam into a fairground on the day of the open house. Moreover, even if the areas of Hickam in which the open house occurred took on some of the attributes of a public park or fairground, it does not follow that the base lost its essential character as a military installation -- any more than the generally open nature of the base involved in Greer caused it to lose its essentially military character. Indeed, there is a pronounced inconsistency between the court of appeals' assertion that the Air Force effectively "ma(d)e Hickam into a public park or fairgrounds for a day" and its emphasis on the fact that the Air Force was using the open house to convey information about its mission. The open house was held at Hickam to serve certain military purposes (see pages 38-39 & note 17, infra), even if those purposes were different from training or target practice. In addition, permitting political demonstrations on a military installation, even during an open house, risks jeopardizing the vital interest in protecting "the military * * * from both the reality and the appearance of acting as a handmaiden for partisan politicl causes" (Greer, 424 U.S. at 839). Of course, it is unlikely that anyone would conclude from the Air Force's tolerance of a demonstration like that conducted by respondent's colleagues that the Air Force approved their views. But "it is evidence * * * that the validity of (a prohibition) need not be judged solely by reference to the demonstration at hand. Absent the prohibition * * *, there would be other groups who would demand permission to deliver an asserted message by" demonstrating during an open house. Clark v. Community for Creative Non-Violence, No. 82-1998 (June 29, 1984), slip op. 8 (citation omitted). If open houses are treated as public forums, base commanders will potentially be required to allocate time, space, and police protection between, for example, groups that favor certain military expenditures or activities and those that advocate a different view. It is not difficult to see how casting the base commander in the role of referee between groups of demonstrators who favor opposing interests and seek to propagate their views on a military base would lead to the appearance of military entanglement in politics. Finally, the court of appeals erred in reasoning that demonstrations by private citizens must be allowed at the open house because the Air Force itself was "speaking" and promoting a certain view. It is a legitimate function, and a responsibility, of government agencies to explain and justify their programs to the public. See pages 38-40, infra. Government spokesmen routinely issue statements and hold press conferences for this purpose. It is implausible to suppose that whenever the government uses a facility it owns to explain or justify its activities to the public, it incurs an obligation to make that facility available to persons who wish to express an opposing view. If this were true, "'display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politican'" (United Staes Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 130 n.6 (1981), quoting Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974) (plurality opinion)). For example, if Air Force officials held a press conference in a governmental auditorium at which they tried to portray the Air Force in a favorable light, respondent surely could not claim a constitutional right to speak in the same auditorium to express contrary views. Similarly, even if the Air Force invited members of the public to Hickam in order to give an accounting of how it was using taxpayers' money, that did not obligate the Air Force to permit others to use Hickam simultaneously to present differing views. /12/ In order to bring such an action, an individual would have to exhaust his administrative remedies by appealing to the commanding officer of the base and, of course, show that his claim presented a justiciable case or controversy. /13/ See, e.g., Clark v. Community for Creative Non-Violence, No, 82-1998 (June 29, 1984); Members of the City Council v. Taxpayers for Vincent, No. 82-975 (May 15, 1984); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981). /14/ The three-part test stated in Heffron is generally applied to regulations of the time, place, and manner of speech in a public forum. See, e.g., United States v. Grace, 461 U.S. 171, 177 (1983); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972). But as the Court has made clear, time, place, and manner restrictions are one category of the incidental restrictions addressed by O'Brien, and the Heffron and O'Brien tests are essentially equivalent. See, e.g., Clark v. Community for Creative Non-Violence, No. 82-1998 (June 29, 1984), slip op. 10 & n.8; id. at 8 n.6 (Marshall, J., dissenting). See also Members of the City Council v. Taxpayers for Vincent, No. 82-975 (May 15, 1984), slip op. 14, 17-18. /15/ We note, in addition, that respondent has "substantial alternative" means of expressing his views (Perry Education Ass'n, 460 U.S. at 53). He has the same rights as any other member of the public, for example, to engage in a demonstration just outside the gate of a military installation. This is comparable to the alternatives that the Court has considered adequate in other cases. See id. at 53-54 (citing cases). /16/ The Air Force has issued a directive urging every base commander to hold an open house at least annually. A.F. Reg. 190-1, para. 4-29 (16 Feb. 1982, as amended 28 June 1983). See also A.F. Reg. 190-9, para. 4-6.b(4) (22 Sept. 1972) (regulation in effect in May 1981). /17/ The Air Force regulations that govern open houses specify that their purpose is "to report to the American public, emphasize and explain the mission, equipment and facilities, people, skills, and professionalism required of the Air Force." A.F. Reg. 190-9, para. 4-6.b(4) (22 Sept. 1972) (in effect in May 1981); see A.F. Reg. 190-1, para. 4-29 (16 Feb. 1982, as amended 28 June 1983). See Persons For Free Speech at SAC, 675 F.2d at 1017: "The governmental interest which is served by the open house * * * is that the government is showing its citizens who pay for the military, how it is spending their money."