Military speech restricted 30 years ago today

Thursday, January 21, 2010

Even though members of the armed forces put their lives on the line to secure our freedoms, they have drastically fewer free-expression rights than civilians do. Thirty years ago today, the U.S. Supreme Court confirmed this unfortunate legal reality in Brown v. Glines (1980), a case involving the free-petition and expression rights of  a captain in the Air Force Reserves, Albert Edward Glines.

In April 1974, while stationed at Travis Air Force Base, Glines drafted petitions to several members of Congress and the defense secretary about Air Force grooming standards. The petition stated in part: “We feel that the present regulations on grooming have caused more racial tension, decrease in morale and retention, and loss of respect for authorities than any other official Air Force Policy.”

While at Anderson Air Force Base in Guam later that year, Glines gave the petition to an Air Force sergeant to gather signatures. The sergeant obtained eight signatures before military officials halted the petitioning. Giving the petition to anyone without first obtaining approval from the base commander ran Glines afoul of Air Force regulations that said “no members of the Air Force will distribute or post any printed or written material … within any Air Force installation without permission of the commander.”

Another regulation said members of the Air Force could petition federal officials but “the public solicitation or collection of signatures on a petition by any person within an Air Force facility or by a member when in uniform … is prohibited unless first authorized by the commander.”

Glines’ commander removed him from active duty and reassigned him to the standby reserves in July 1974. Glines sued in a federal district court in California, alleging a violation of his First Amendment rights. In 1975, a district judge ruled that because “the regulations suffer from considerable overbreadth,” they violated the First Amendment. The judge awarded Glines more than $22,000 in back pay.

The Air Force appealed to the 9th U.S. Circuit Court of Appeals, which affirmed the lower court in a 1978 ruling with respect to the First Amendment claim. The appeals court determined that “Glines' case itself shows that commanding officers may be unsympathetic to even the most innocuous exercise of First Amendment rights.” The 9th Circuit did reverse the back-pay award, finding that the federal court lacked jurisdiction to award damages.

The Air Force appealed to the U.S. Supreme Court, which reversed and ruled in favor of the military. David M. Cobin, who argued the case for Glines all through the federal court system, including at the Supreme Court, said in an interview with the First Amendment Center Online this week that the Court was not the greatest forum for arguing on behalf of military members’ free-speech rights. The Court had recently upheld broad restrictions on First Amendment rights at military bases in Greer v. Spock (1976).

Cobin, who now teaches law at Hamline University School of Law in St. Paul, Minn., recalled that during oral argument Justice William Rehnquist asked about Julius Caesar, and Justice Harry Blackmun asked about Beetle Bailey. He also remembered an unusual moment when, after 27 minutes of argument three minutes short of the allowed 30, the red light went off and Chief Justice Burger banged the gavel and said it was time for lunch.

“I was completely befuddled,” Cobin recalled. “Who knew the Court couldn’t delay lunch for three minutes?” He did come back to complete his final three minutes of argument after lunch.

The Court majority sided with the military, showing deference to the special context of the military environment. “Because the right to command and the duty to obey ordinarily must go unquestioned, this Court long ago recognized that the military must possess substantial discretion over its internal discipline,” Justice Lewis Powell wrote for the majority.

In dissent, Justice William Brennan blasted the restrictions on petitioning as a classic prior restraint on speech. The Air Force regulations “utterly fail to meet even the minimum procedural dictates of the First Amendment,” he wrote, but instead allow “the arbitrary and nonneutral suppression of communication by petition.”

Cobin said he believed that the Supreme Court has imposed too many restrictions on armed-services members' First Amendment rights.

“Servicemen stand up for the country,” he said. “They deserve these rights. Furthermore, grievances don’t go away when rights go away. Servicemen will find a less-productive method of demonstrating their grievances than using speech.”

And still today, members of the military do not enjoy full First Amendment freedoms, which are squelched in the name of discipline, efficiency, security, order and morale. They deserve better.