# Flower v. United States/Dissent Rehnquist

* Court Documents
* Case Syllabus
* Per Curiam Opinion of the Court
* Dissenting Opinion Rehnquist
[p199] MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
The result, if not the reasoning, of the Court's impressionistic summary reversal of the Court of Appeals in this case is clear: without benefit of briefs of oral argument the Court declares unconstitutional this application of 18 U.S.C. § 1382, a statute enacted to give commanders of military posts authority thought necessary by Congress to exclude civilians from the post area after proper notice.
Because the post commander of Fort Sam Houston may have permitted civilian vehicular and pedestrian traffic on New Braunfels Avenue within the limits of Fort Sam Houston, the Court holds that he has [p200] "abandoned" any claim of special interest in who walks, talks, or distributes leaflets on the avenue. Obviously the Court cannot be referring to the subjective intent of the base commander, since he gave petitioner due notice of his debarment from the base, and the bringing of this prosecution evinces a rather strong interest on the part of the commander in petitioner's "leafleting" activities. If the Court means to say that once any portion of a military base is opened up to unregulated vehicular traffic it automatically follows that such portion of the base acquires the status of a public square in a city or town, the mere statement of that proposition—which is all that is contained in the Court's opinion—is not self-demonstrating. Since the Court does not hold, and it does not appear on the record that it could hold, that petitioner Flower was treated differently from any other "leafleteers," the Court's holding does not deal with any possible denial of equal protection. The case thus concerns only the First Amendment claim of leafleteers to go anywhere on a military base to which civilian vehicles and pedestrians are granted free access.
Adderley v. Florida, 385 U.S. 39 (1966), suggests that civilian authorities may draw reasonable distinctions, based on the purpose for which public buildings and grounds are used, in according the right to exercise First Amendment freedoms in such buildings and on such grounds. Simply because some activities and individuals are allowed on government property does not require the abandonment of otherwise allowable restrictions on its use. Indeed, it is generally recognized that demonstrations on courthouse grounds can be prohibited in order to protect the proper exercise of the judicial function. See Cox v. Louisiana, 379 U.S. 559, 562 (1965). See also 63 Stat. 617, § 6, 40 U.S.C. § 13k (prohibiting any demonstrations on the grounds surrounding this Court). Similarly, the unique requirements of [p201] military morale and security may well necessitate control over certain persons and activities on the base, even while normal traffic flow through the area can be tolerated.
The Court's opinion leaves the base commander with a Hobson's choice. He may close access to civilian traffic on New Braunfels Avenue and other traffic arteries traversing the post, thereby rendering the post once more subject to the authority that Congress intended him to have, but also causing substantial inconvenience to civilian residents of Bexar County who presently use these arteries. Or, he may continue to accommodate the convenience of the residents, but only at the cost of surrendering the authority Congress conferred upon him under 18 U.S.C. § 1382 to control access to the post he commands.
An additional problem, to which the Court's opinion devotes no attention whatever, is the question of whether this petitioner should be free to challenge the validity of the post commander's original debarment order in defending a criminal prosecution under 18 U.S.C. § 1382. The Solicitor General, in opposing the petition for a writ of certiorari, contends that petitioner would have been free to challenge the debarment order in a separate proceeding in the United States District Court, relying on Kiiskila v. Nichols, 433 F. 2d 745 (CA7 1970), and Dash v. Commanding General, 429 F. 2d 427 (CA4 1970). The Court, by determining sub silentio that exhaustion of such remedies is not required, substantially dilutes the effectiveness of the criminal sanction that Congress deliberately placed behind a post commander's order of debarment. It accomplishes this dilution in a way that may not be at all necessary to the vindication of petitioner's First Amendment rights. By requiring petitioner to proceed in an orderly manner to first litigate any alleged constitutional infirmity in the debarment order, the Court [p202] could assure him a forum for the assertion of such claims while preserving to the post commander the availability of a relatively summary criminal sanction against one who violated a debarment order whose validity has not been contested.
While full argument in this case on the merits might persuade me that the Court's result was required by the Constitution, its present opinion certainly has not done so. I therefore dissent from the summary reversal.

## Notes

* ↑ From a record consisting largely of rejected offers of proof, the Court concludes that Fort Sam Houston was an "open" post. It also concludes that New Braunfels Avenue, a traffic artery within the post, was a "completely open" street, presumably more "open" than the post as a whole. While I have difficulty at this stage of the case in knowing how the Court reaches these factual conclusions, or indeed what exactly the varying degrees of "openness" are meant to connote, my disagreement with the Court's summary reversal is not limited to this aspect of the case.