Secretary of Navy v. Huff, 444 U.S. 453 (1980)
444 U.S.
453
100 S.Ct. 606
62 L.Ed.2d 607
SECRETARY OF the NAVY et al., Petitioners,
v.
Frank L. HUFF et al.
No. 78-599.
Jan. 21, 1980.
Kent L. Jones, Office of Sol. Gen., Dept. of Justice, Washington, D. C.,
for petitioners, pro hac vice, by special leave of Court.
Alan Dranitzke, Washington, D. C., for respondents.
PER CURIAM.
The question in this case is whether Navy and Marine Corps regulations violate
10 U.S.C. 1034 by requiring military personnel on an overseas base to obtain
command approval before circulating petitions addressed to Members of
Congress. Section 1034 provides that "[n]o person may restrict any member of
an armed force in communicating with a member of Congress, unless the
communication is unlawful or violates a regulation necessary to the security of
the United States."
* In 1974, Frank L. Huff, Robert A. Falatine, and Robert E. Gabrielson were
serving in the Marine Corps at the United States Marine Corps Air Station in
Iwakuni, Japan. On separate occasions, each of them sought the base
commander's permission to circulate a petition addressed to a Member of
Congress. The petitions dealt with the use of military forces in labor disputes
within the United States, amnesty for men who resisted the draft or deserted the
Armed Forces during the Vietnam war, and United States support for the
Government of South Korea. The first two requests proposed circulation within
the base; the last proposed circulation both within and without the base. The
commander denied the first two requests, but he allowed the petition about
South Korea to circulate within the base.
On another occasion, Huff and Falatine each asked to distribute a leaflet
annotating the Declaration of Independence and the First Amendment with
commentary critical of military commanders who restrict petitioning. The base
commander denied Falatine's request on the ground that the commentary was
disrespectful and contemptuous, but on the same day and without explanation,
he granted Huff leave to distribute the same material. Finally, respondents Huff
and Falatine were arrested for circulating outside the base a petition to a
Member of Congress that objected to American support for the government of
South Korea. They were charged with violating regulations because they had
circulated the petition without requesting command approval. Huff was
convicted and sentenced to confinement, forfeiture of half-pay, and reduction in
grade. The charges against Falatine were dismissed for lack of evidence.
The respondents then brought a class action in the United States District Court
for the District of Columbia, seeking declaratory and injunctive relief against
future enforcement of four Navy and Marine Corps regulations.1 Each
regulation provides, in relevant part, that members of the Marine Corps shall
not "originate, sign, distribute, or promulgate petitions, publications, . . . or
other . . . written material . . . on any military installation on duty or in uniform,
or anywhere within a foreign country irrespective of uniform or duty status,
unless prior command approval is obtained."2 The respondents contended that
this requirement violated 10 U.S.C. 1034 and the First Amendment. The
petitioners conceded that the base commander had misapplied the regulations
when he denied respondents permission to circulate their petitions within the
base, and the respondents sought no relief for these past wrongs. Thus, the
issue presented was the facial validity of the regulations that require prior
command approval for petitioning inside and outside the Iwakuni air station.
On cross-motions for summary judgment, the court declared the regulations
invalid with respect to materials distributed within the base during off-duty
hours and away from restricted or work areas. The court upheld the regulations
with respect to distributions outside the base. In that situation, the court
concluded, command approval was necessary to prevent political activity in
violation of the Status of Forces Agreement between the United States and
Japan.3 413 F.Supp. 863 (1976). The petitioners appealed, but the respondents
did not cross appeal.4
The Court of Appeals for the District of Columbia Circuit affirmed in part and
vacated in part. 188 U.S.App.D.C. 26, 575 F.2d 907 (1987). It concluded that
the only real controversy between the parties concerned the application of the
challenged regulations to petitions addressing Members of Congress. The court
therefore considered only the validity of the regulations as they affect
circulation within the base of petitions to Congress. It held that requiring prior
command approval for the circulation of such petitions violated 10 U.S.C.
1034. That statute, the court concluded, gives both individuals and groups the
right to petition Members of Congress. It allows only such restrictions on that
right as are "necessary to the security of the United States." Since the record in
this case showed that the Iwakuni base was not within "an actual and current
combat zone," the court concluded that petitioners had not shown that a prior
restraint on petitioning within the base was necessary to the national security.
The court therefore did not reach the question whether the command approval
requirement also violated the First Amendment.
7
We granted certiorari to consider whether the challenged regulations, as they
affect the circulation of petitions within a military base, violate 10 U.S.C.
1034. 440 U.S. 957, 100 S.Ct. 259, 62 L.Ed.2d 178 (1979).5
II
8
In Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540, decided
today, we concluded that "Congress enacted 1034 to ensure that an individual
member of the Armed Services could write to his elected representatives
without sending his communication through official channels." Id., at 359, 100
S.Ct., at 602. Nothing in the legislative history suggests that Congress intended
to authorize the unrestricted circulation of petitions within a military base.
Indeed, both Congress and this Court have determined that "the special
character of the military requires civilian authorities to accord military
commanders some flexibility in dealing with matters that affect internal
discipline and morale." Id., at 360, 100 S.Ct., at 602. Thus, in construing
statutes that affect such matters, we must not limit a commander's authority
more than the legislative purpose requires. Permitting an individual member of
the Armed Services to submit a petition directly to any Member of Congress
serves the purpose of 1034 without unnecessarily endangering a commander's
ability to preserve morale and good order among his troops. In Glines,
therefore, we held that 1034 does not invalidate regulations requiring
members of the Armed Forces to secure command approval before circulating
petitions within a military base.
Since the Court of Appeals reached a contrary conclusion in this case, its
judgment is
10
Reversed.
11
Mr. Justice MARSHALL took no part in the consideration or decision of this
case.
12
Mr. Justice STEWART, and Mr. Justice STEVENS dissent. For the reasons
stated in their dissenting opinions in Brown v. Glines, 444 U.S. 348, 374 and
378, 100 S.Ct. 594, 603 and 605, 62 L.Ed.2d 540, they would affirm the
judgment of the Court of Appeals in this case.
The class consists of "all members of the Marine Corps stationed at, assigned
to, or on duty at the Marine Corps Air Station at Iwakuni, Japan." 413 F.Supp.
863, 864-865 (1976).
The respondents also sought a judgment expunging Falatine's arrest record,
invalidating Huff's conviction, and restoring to Huff all benefits denied as the
result of his conviction. Id., at 865. Those claims, however, are no longer part
of the case. See infra, at 456, and n. 4.
Fleet Marine Force Pacific Order 5370.3, 3(b) (1974). The full subparagraph
reads:
"No Fleet Marine Force, Pacific or Marine Corps Bases, Pacific, personnel will
originate, sign, distribute, or promulgate petitions, publications, including
pamphlets, newspapers, magazines, handbills, flyers, or other printed or written
material, on board any ship, craft, aircraft, or in any vehicle of the Department
of the Navy, on any military installation on duty or in uniform, or anywhere
within a foreign country irrespective of uniform or duty status, unless prior
command approval is obtained."
The other three regulations, although different in geographic scope, use
substantially identical language. See Pacific Fleet Instruction 5440.3C,
2604.2(2) (1974); First Marine Aircraft Wing Order 5370.1B, 5(a)(2) (1974);
Iwakuni Marine Corps Air Station Order 5370.3A, 5(a)(2) (1973).
Each regulation directs a commander to "control or prohibit" the circulation of
written materials, that, in his judgment, would:
"(1) Materially interfere with the safety, operation, command, or control of his
unit or the assigned duties of particular members of the command; or,
"(2) Present a clear danger to the loyalty, discipline, morale, or safety to [sic]
personnel of his command; or,
"(3) Involve distribution of material or the rendering of advice or counsel that
causes, attempts to cause, or advocates, insubordination, disloyalty, mutiny,
refusal of duty, solicits desertion, discloses classified information, or contains
obscene or pornographic matter; or,
"(4) Involve the planning or perpetration of an unlawful act or acts." Fleet
Marine Force Pacific Order 5370.3, 4(a) (1974).
See Pacific Fleet Instruction 5440.3C, 2604.2(4) (1973); First Marine Aircraft
Wing Order 5370.1B, 6(c) (1974); Iwakuni Marine Corps Air Station Order
5370.3A, 5(c) (1973). The respondents' complaint did not challenge these
standards, App. 5-7, and the Court of Appeals did not review them, 188
U.S.App.D.C. 26, 32-33, 575 F.2d 907, 913-914 (1978). Thus, the only issue
before us is the validity of the prior approval requirement.
3
Article XVI of the Status of Forces Agreement between the United States and
Japan specifically proscribes political activity by American servicemen within
the host country. [1960] 11 U.S.T. 1664, T.I.A.S. No. 4510.
The respondents had sought expungement of Falatine's arrest record,
invalidation of Huff's conviction for petitioning outside the base without
permission, and restoration of all benefits denied to Huff as the result of his
conviction. Since the District Court found the regulations valid as applied to
petitioning outside the base, the court denied these claims for relief. 413
F.Supp., at 870.
At oral argument, the respondents also contended that regulations requiring
members of the Armed Forces to secure command approval before circulating
petitions within a military base violate the First Amendment. Tr. of Oral Arg.
30. Our decision today in Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62
L.Ed.2d 540, sustains the facial validity of this type of regulation and,
therefore, disposes of respondents' First Amendment contention.
We have had no occasion, either in Glines or in this case, to consider a claim
that regulations were misapplied in a particular instance. See 444 U.S., at 357,
n. 15, 100 S.Ct., at 601, n. 15; supra, at 456. We have noted, however, that
regulations in each Armed Service were promulgated under a Department of
Defense directive that "advises commanders to preserve servicemen's 'right of
expression . . . to the maximum extent possible, consistent with good order and
discipline and the national security.' " Brown v. Glines, 444 U.S., at 355, 100
S.Ct., at 600. A member of the service who thinks that his commander has
misapplied the regulations can seek remedies within the service. See, e. g.,
Uniform Code of Military Justice, Art. 138, 10 U.S.C. 938. Furthermore, the
federal courts are open to assure that, in applying the regulations, commanders
