Greer v. Spock
424 U.S. 828 (1976)
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Rule of Law:
A military installation does not become a public forum for First Amendment purposes merely because it is generally open to the public, and the government may prohibit partisan political activity and require prior approval for literature distribution to protect the military's unique function and political neutrality.
Facts:
- Fort Dix is a U.S. Army post in New Jersey dedicated to basic combat training, over which the federal government has exclusive jurisdiction.
- While the base is generally open to civilian pedestrian and vehicular traffic, and has a 'Visitors Welcome' sign, it maintains specific regulations restricting expressive activities.
- Fort Dix Regulation 210-26 prohibits partisan political speeches, demonstrations, protest marches, and similar activities on the reservation.
- Fort Dix Regulation 210-27 prohibits the distribution or posting of any publication, such as flyers or pamphlets, without prior written approval from the Adjutant General.
- In 1972, presidential and vice-presidential candidates, including Benjamin Spock of the People's Party, wrote to the commanding officer of Fort Dix requesting permission to enter the base to distribute campaign literature and hold a meeting.
- The commanding officer denied the candidates' request, citing Regulations 210-26 and 210-27.
- Separately, other respondents had been evicted from Fort Dix on various occasions for distributing literature without seeking prior approval and were barred from re-entering the base.
Procedural Posture:
- Respondents (Spock, et al.) sued the petitioners (the Commander of Fort Dix) in the U.S. District Court for the District of New Jersey, seeking to enjoin the enforcement of base regulations.
- The District Court denied a preliminary injunction.
- On appeal by the respondents, the U.S. Court of Appeals for the Third Circuit reversed the denial and directed the District Court to grant a preliminary injunction for the political candidates.
- The District Court subsequently issued a permanent injunction prohibiting military authorities from interfering with political speeches and leafletting in areas of Fort Dix open to the public.
- On appeal by the petitioners, the U.S. Court of Appeals for the Third Circuit affirmed the permanent injunction.
- The Supreme Court of the United States granted certiorari to review the decision of the Court of Appeals.
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Issue:
Do military regulations that prohibit partisan political speeches and require prior approval for the distribution of literature on a military base that is generally open to civilian traffic violate the First Amendment?
Opinions:
Majority - Justice Stewart
No. The military regulations do not violate the First Amendment because a military base is not a traditional public forum, and the military has a substantial interest in restricting partisan political activities to maintain its political neutrality and mission readiness. The Court distinguished this case from Flower v. United States, explaining that Flower applied only where the military had abandoned any claim of special interest in regulating activity on what was functionally a public street. Fort Dix, by contrast, had never abandoned its interest in controlling political activity. The primary purpose of a military base is to train soldiers, not to provide a public forum. The regulation banning political speeches was an evenhanded policy consistent with the American tradition of a politically neutral military. The regulation requiring prior approval for literature distribution was a valid measure to prevent clear dangers to military loyalty, discipline, and morale, and since the respondents challenging it never submitted their materials for review, they could not claim it was unconstitutionally applied.
Concurring - Chief Justice Burger
No. Permitting political campaigning on military bases contradicts the 200-year tradition of separating the military from political affairs, which is a constitutional corollary to civilian control of the military. While a commander could ban all political leaflets, the decision to permit some with prior approval is a judgment properly left to military authorities. The real threat is not from leafletting but from commanders potentially trying to 'deliver' votes for a major-party candidate, an issue not present here.
Concurring - Justice Powell
No. The correct inquiry is 'whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.' A military installation is a specialized society separate from civilian life, where restrictions must be viewed in terms of both functional and symbolic incompatibility. Partisan political campaigning is incompatible with the military's mission and the critical public interest in maintaining the appearance and reality of a politically neutral armed service. The limited infringement on First Amendment rights is justified because alternative channels of communication with service members remain open off-base.
Dissenting - Justice Brennan
Yes. The military regulations violate the First Amendment because Fort Dix is, for all practical purposes, an open post indistinguishable from the one in Flower v. United States. The majority's reliance on military necessity is an overbroad 'talismanic incantation' that fails to carefully balance First Amendment interests. The government must use the least restrictive means, and a total ban on campaigning in areas open to the public is not necessary. The regulation requiring prior approval for literature is an unconstitutional prior restraint, and the 'clear danger' standard it employs is an outdated and inadequate test for restricting speech.
Dissenting - Justice Marshall
Yes. The Court's 'unblinking deference' to the military's judgment is deeply concerning and sharply limits fundamental First Amendment guarantees. This decision moves too far toward a doctrine where any military regulation can evade meaningful constitutional scrutiny simply because the military deems it appropriate, undermining the principle that the Constitution applies to the military.
Analysis:
This decision is foundational in First Amendment forum analysis, establishing that government property is not monolithic for speech purposes. It holds that military bases are nonpublic forums where speech can be restricted to preserve the property's dedicated purpose. The ruling gives significant deference to military judgment regarding the need for political neutrality and the protection of discipline and morale. This creates a clear distinction between military installations and traditional public forums like streets and parks, significantly limiting the public's expressive rights on military property, even in areas generally accessible to civilians.
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