United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2008 Decided July 15, 2008 

No. 07-5121 

LARRY W. BRYANT, 

APPELLANT

v. 

ROBERT M. GATES, SECRETARY OF DEFENSE, UNITED STATES 

DEPARTMENT OF DEFENSE, ET AL., 

APPELLEES

Consolidated with 07-5180 

Appeals from the United States District Court 

for the District of Columbia 

(No. 05cv00064) 

 Jonathan L. Katz argued the cause and filed the briefs for 

appellant. 

 R. Craig Lawrence, Assistant U.S. Attorney, argued the 

cause for appellees. With him on the brief were Jeffrey A. 

Taylor, U.S. Attorney, and Jane M. Lyons, Assistant U.S. 

Attorney. 

Before: GINSBURG, BROWN, and KAVANAUGH, Circuit 

Judges. 
2 

Opinion for the Court filed by Circuit Judge GINSBURG. 

Concurring opinion filed by Circuit Judge KAVANAUGH. 

GINSBURG, Circuit Judge: Larry Bryant claims the 

refusal of the Department of Defense to allow his 

advertisements to be published in its Civilian Enterprise 

Newspapers violated his rights under the First Amendment to 

the Constitution of the United States. The district court 

entered summary judgment for the Government on all 

Bryant’s claims. We affirm the judgment. 

I. Background 

Bryant is a would-be contributor to the Civilian 

Enterprise Newspapers (CENs), which are “published by 

commercial publishers under contract” with the Department 

of Defense Components or their subordinate commands 

(hereinafter DoD) and distributed on military installations. 

The DoD’s sole purpose in authorizing the CENs is “to 

facilitate accomplishment of the command or installation 

mission.” Department of Defense Instruction (DODI) 5120.4 

§§ 6.2.1.1.8, E2.1.2.1 (1997), available at

http://www.dtic.mil/whs/directives/corres/pdf/512004p.pdf.* 

Like an ordinary newspaper in many respects, a CEN 

contain[s] most, if not all, of the following elements to 

communicate with the intended DoD readership: 

command, Military Department, and DoD news and 

features; commanders’ comments; letters to the editor; 

editorials; commentaries; features; sports; entertainment 

 *

 A “command” is a “unit or units, an organization, or an area 

under the command of one individual,” DODI 5120.4 § E2.1.9.1, 

and an “installation” is a “DoD facility or ship that serves as the 

base for one or more commands,” id. § E2.1.9.3. 
3 

items; morale, welfare, and recreation news and 

announcements; ... and installation and local community 

news and announcements. 

Id. § E2.1.2. This content may come from within the DoD or 

from the publisher with the DoD’s approval. Id. § E2.1.2.1. 

The publisher may also sell and publish advertising in a CEN, 

again subject to the approval of the DoD. Id. §§ 4.11, 4.16, 

6.2.1.1.5, E2.1.1, E2.1.2.1, E4.1.7.1-4. 

A former civilian editor in the Office of the Chief of 

Army Public Affairs, Bryant has, over the last twenty or so 

years, submitted to dozens of CENs numerous letters and 

advertisements, few of which have been published. See, e.g., 

Bryant v. Sec’y of the Army, 862 F. Supp. 574, 576-77 

(D.D.C. 1994). This suit arises out of Bryant’s having 

submitted seven self-styled “whistleblower solicitation 

advertisements” to two dozen CENs. The general import of 

most of those advertisements can be gleaned from their titles: 

• Blow the Whistle on Iraqnam’s Battle-of-Baghdad 

Cover-up! 

• Blow the Whistle on ALL Atrocities at Abu Ghraib! 

• Join the Revolt Against the ‘Feres Doctrine’!*

• Blow the Whistle on the Military’s Psychiatric 

Retaliation Against Whistleblowers! 

 *

 The “Feres Doctrine” refers to Feres v. United States, in 

which the Supreme Court “conclude[d] that the Government is not 

liable under the Federal Tort Claims Act for injuries to servicemen 

where the injuries arise out of or are in the course of activity 

incident to service.” 340 U.S. 135, 146 (1950). 
4 

• Resist the Government’s Drafty Spin! 

• Blow the Whistle on Bush’s ‘Gulf of Persia’ 

Resolution! 

• Blow the Whistle on the Army-CIA McCarthy Saga!* 

All the military public affairs officers responsible for the 

various CENs to which Bryant submitted these 

advertisements declined to publish them, invoking § 4.11 of 

DODI 5120.4, which provides: 

DoD publications [including CENs] shall not contain 

campaign news, partisan discussions, cartoons, editorials, 

or commentaries dealing with political campaigns, 

candidates, issues, or which advocate lobbying elected 

officials on specific issues. DoD CE publications shall 

not carry paid political advertisements for a candidate, 

party, which advocate a particular position on a political 

issue, or which advocate lobbying elected officials on a 

specific issue. This includes those advertisements 

advocating a position on any proposed DoD policy or 

policy under review. 

Bryant claims § 4.11 “is unconstitutional on its face and as 

applied to [his] paid Advertisements, by violating his rights to 

free expression and to freedom of the press” under the First 

Amendment. 

 *

 The “Army-CIA McCarthy Saga” evidently involves a 

captain named John J. McCarthy Jr. who, Bryant says, “found 

himself involuntarily transferred to clandestine duty with a CIA-run 

operation” toward the end of the Vietnam War to become “an 

expendable pawn in rogue activity that, to this day, eludes even 

congressional oversight.” 
5 

The Government moved to dismiss or for summary 

judgment, and Bryant cross-moved for summary judgment. 

The district court granted the Government’s motion for 

summary judgment and denied Bryant’s cross-motion. 

II. Analysis 

On appeal, Bryant contends § 4.11 of DODI 5120.4 

violates the First Amendment because it is vague and is not 

narrowly tailored to meet a compelling governmental interest. 

“[R]eview[ing] the district court’s grant of summary 

judgment de novo, viewing the evidence in the light most 

favorable to [Bryant,] and drawing all reasonable inferences 

accordingly,” we affirm the judgment because “no reasonable 

jury could find in [Bryant’s] favor.” Salazar v. Wash. Metro. 

Area Transit Auth., 401 F.3d 504, 507 (D.C. Cir. 2005).*

A. Vagueness 

Bryant claims § 4.11 is impermissibly vague on its face 

and as applied to his advertisements because it does not 

“clearly prohibit[] ‘political’ advertising.” A regulation of 

speech must be clear enough to “give the person of ordinary 

intelligence a reasonable opportunity to know what is 

prohibited,” Grayned v. City of Rockford, 408 U.S. 104, 108 

(1972), and to avoid “foster[ing] arbitrary and discriminatory 

application,” Buckley v. Valeo, 424 U.S. 1, 41 n.48 (1976) 

(quotation marks omitted). Our concern about vagueness is 

elevated when the law regulates speech because it may 

“operate to inhibit protected expression by inducing citizens 

to steer far wider of the unlawful zone than if the boundaries 

of the forbidden areas were clearly marked.” Id. (quotation 

 *

 Bryant raises similar constitutional challenges to other 

sections of DODI 5120.4, but they are sufficiently lacking in merit 

as not to warrant consideration in a published opinion. 
6 

marks and alterations omitted). On the other hand, because 

§ 4.11 does not threaten Bryant (or anyone else) with a 

sanction for prohibited speech, and therefore does not seem 

likely to deter anyone from engaging in any protected speech, 

it is not clear whether the vagueness doctrine applies here at 

all. Cf. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 

621 (1998) (“The terms of the provision are undeniably 

opaque, and if they appeared in a criminal statute or 

regulatory scheme, they could raise substantial vagueness 

concerns. It is unlikely, however, that speakers will be 

compelled to steer too far clear of any ‘forbidden area’ in the 

context of [Federal arts] grants.”). We need not decide that 

question, however, because § 4.11 is not unconstitutionally 

vague. 

Bryant objects specifically to the use of the term 

“political” in § 4.11. He explains: “The very essence of the 

CENs is governmental, and thus political, [and] the military 

itself, as a major government institution, is political.” 

Therefore, Bryant suggests, when the DoD invokes § 4.11 to 

exclude advertisements such as his, it must be applying a 

standard that is unstated or undefined and may discriminate 

upon the basis of the view expressed. We agree with the 

Government, however, that far from being vague, the bar in 

§ 4.11 is “well-defined.” Even if we assume Bryant is correct 

in claiming that everything CENs publish is “political” in the 

sense that its publication serves the DoD’s purpose of mission 

support, the context in which that term appears in § 4.11 

makes clear that it relates specifically to elections and policy 

matters of concern to public officials: § 4.11 refers to 

“campaigns,” “candidates,” “parties,” “lobbying [of] elected 

officials,” “political issues,” and “DoD policy.” DODI 

5120.4 § 4.11; see Am. Commc’ns Ass’n v. Douds, 339 U.S. 

382, 412 (1950) (in assessing whether term is vague, the 

“particular context is all important”). 
7 

Further to his argument, Bryant suggests the DoD has not 

applied the regulation in a consistent manner. In this vein, he 

points to three instances in which he claims CENs published 

“politically-related” material notwithstanding § 4.11, 

specifically: (1) an advertisement inviting service members to 

an event at which former Senator Dole would be signing 

copies of his memoir, One Soldier’s Story; (2) an 

advertisement recruiting service members to work as FBI 

agents; and (3) an article entitled “Facing the Future: Terror 

War Promotes Transformation Concepts.” It is easy to see, 

however, that Bryant’s proposed advertisements are within 

the scope of the prohibition in § 4.11 whereas the Dole and 

FBI advertisements and the “Facing the Future” article are 

not; of these four, only Bryant’s advertisements are 

“political” as that term is used in § 4.11. Bryant’s 

advertisements addressed controversial, high-level matters of 

concern to the President, the Department of Defense, or the 

Congress, such as the operation of the Abu Ghraib prison in 

Iraq, military conscription, and impeachment of the President 

for allegedly lying about why the United States invaded Iraq. 

In contrast, there is no reason to believe Senator Dole’s book 

signing was a political event; his memoir, published nearly a 

decade after he had left public office, focused upon his 

service during World War II and his recovery from the 

injuries he suffered in the war. The FBI advertisement 

solicited people working in one area of Government to work 

in another, related area; and the article entitled “Facing the 

Future” reported on how “challenges in the field of combat 

give [the DoD] the opportunity to test new concepts, new 

organizational concepts, new training concepts and new 

logistical concepts that help drive transformation to the 

future.” 

In sum, the ban in § 4.11 on “political” advertisements is 

not unconstitutionally vague on its face or as applied to 

Bryant’s ads. See McConnell v. FEC, 540 U.S. 93, 241 
8 

(2003) (phrase “political matter of national importance” not 

unconstitutionally vague).*

B. The Justification for and Tailoring of § 4.11 

Bryant next claims § 4.11, “as written and applied” to his 

advertisements, is not narrowly tailored to serve a compelling 

governmental interest.** As a general principle, “the extent to 

which the Government can control access [to a forum it owns 

or controls] depends on the nature of the relevant forum.” 

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 

788, 800 (1985). More specifically: 

Restrictions on speech in a public forum must be 

necessary to achieve a compelling state interest and 

narrowly tailored to that end. Restrictions on speech in a 

nonpublic forum, on the other hand, are subject to a 

much less stringent test: they must only be reasonable [in 

light of the purpose of the forum] and not an effort to 

 *

 Bryant also claims § 4.11 is unconstitutional on its face and 

as applied because it is “subject to be[ing] applied with unbridled 

discretion,” but this argument is the same as his argument that the 

regulation is vague (no doubt in part because the two doctrines 

overlap), and so it fails for the same reason his vagueness argument 

fails: Considered in full, § 4.11 adequately constrains the DoD’s 

power. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 

(1969). 

** Bryant separately claims § 4.11 is unconstitutionally 

overbroad. See United States v. Williams, 128 S. Ct. 1830, 1838 

(2008) (“statute is facially invalid if it prohibits a substantial 

amount of protected speech ..., not only in an absolute sense, but 

also relative to the statute’s plainly legitimate sweep”). We do not 

address that claim separately because it is analytically identical to 

Bryant’s claim that § 4.11 is on its face not narrowly tailored. See 

Bd. of Trs. v. Fox, 492 U.S. 469, 482-84 (1989). 
9 

suppress expression merely because public officials 

oppose the speaker’s view. 

Stewart v. D.C. Armory Bd., 863 F.2d 1013, 1016 (D.C. Cir. 

1988) (quotation marks and citation omitted); Ark. Educ. 

Television Comm’n v. Forbes, 523 U.S. 666, 677-79 (1998). 

A forum is public if it “historically has been devoted to 

the free exchange of views; streets and parks are 

quintessential examples.” Stewart, 863 F.2d at 1016; see also

Ark. Educ. Television Comm’n, 523 U.S. at 677. Even if a 

forum was not traditionally open, the government may 

designate it a public forum by making it “generally available” 

“for expressive use by the general public or by a particular 

class of speakers”; for example, “a state university created a 

public forum for registered student groups by implementing a 

policy that expressly made its meeting facilities ‘generally 

open’ to such groups.” Id. at 678-79 (quotation marks 

omitted); see also Lamb’s Chapel v. Ctr. Moriches Union 

Free Sch. Dist., 508 U.S. 384, 392 (1993) (government 

creates public forum when it designates forum “for 

indiscriminate public use for communicative purposes”). If, 

however, the government permits only “selective access for 

individual speakers,” then it creates a nonpublic forum, Ark. 

Educ. Television Comm’n, 523 U.S. at 679-80; for example, 

the Combined Federal Campaign charity drive was deemed a 

nonpublic public forum because the Government had 

“limit[ed] participation in the [Campaign] to ‘appropriate’ 

voluntary agencies [i.e., not including ‘legal defense and 

political advocacy organizations,’] and ... require[d] agencies 

seeking admission to obtain permission from federal and local 

Campaign officials,” Cornelius, 473 U.S. at 790, 804. 

We must identify the relevant forum before we can 

classify it. Because Bryant seeks access only to the 

advertising section of each CEN, we treat the advertising 
10 

section – not the whole CEN, which the Government suggests 

– as the relevant forum. Id. at 801 (“In cases in which limited 

access is sought,” we “take[] a more tailored approach to 

ascertaining the perimeters of a forum”); see Lehman v. City 

of Shaker Heights, 418 U.S. 298, 300-04 (1974) (plurality) 

(advertising spaces on city buses, where plaintiff wanted to 

run political ads, were relevant fora); Perry Educ. Ass’n v. 

Perry Local Educators’ Ass’n, 460 U.S. 37, 46-47 (1983) 

(where plaintiff wanted to distribute mail to school teachers, 

school’s internal mail system was relevant forum). 

Bryant contends the advertising section of a CEN is a 

public forum by designation or a “limited public forum,” the 

regulation of which, he claims, must survive strict scrutiny. 

The Government says it is a nonpublic forum. Because the 

Government does not attempt to defend § 4.11 against strict 

scrutiny, and it is not obvious § 4.11 would survive such 

scrutiny, the question whether the advertising section of a 

CEN is a public or a nonpublic forum is potentially 

dispositive. 

The “touchstone” for determining whether the 

Government has designated a forum public is its “intent in 

establishing and maintaining” that forum. Stewart, 863 F.2d 

at 1016. As the Supreme Court has made clear, “[t]he 

government does not create a designated public forum by 

inaction or by permitting limited discourse, but only by 

intentionally opening a nontraditional public forum for public 

discourse.” Ark. Educ. Television Comm’n, 523 U.S. at 677 

(quotation marks and brackets omitted). To ascertain the 

Government’s intent, we look not only at the Government’s 

“stated purpose” but also at “objective indicia of intent,” such 

as “the nature of the property, its compatibility with 

expressive activity, and the consistent policy and practice of 

the government.” Stewart, 863 F.2d at 1016-17; see also Ark. 

Educ. Television Comm’n, 523 U.S. at 677. 
11 

We conclude the advertising section of a CEN is a 

nonpublic forum.* This follows from the fundamental fact 

that CENs are intended solely to “facilitate accomplishment 

of the command or installation mission.” DODI 5120.4 

§ 6.2.1.1.8. To that end, a CEN functions as a “conduit” for 

the flow of information between commanders and service 

members in order “to improve internal cooperation[,] mission 

performance[, and] morale,” and to provide “assistance” to 

service members and their families. Id. § 6.2.1.1.1-3. 

Nothing in DODI 5120.4 suggests the advertising section has 

any purpose other than to further these mission-oriented aims. 

On the contrary, DODI 5120.4 provides the DoD may prevent 

the distribution of a CEN if it contains an advertisement that 

is “contrary to ... DoD or Military Service regulations, 

including [DODI 5120.4], or that may pose a danger or 

detriment to DoD personnel or their family members, or that 

interfere[s] with the command or installation missions,” or 

“present[s] a danger to loyalty, discipline, or morale of 

personnel.” Id. § E4.1.7.1-4; see also United States v. 

Albertini, 472 U.S. 675, 684-86 (1985) (“A military base ... is 

ordinarily not a public forum for First Amendment purposes 

even if it is open to the public”); Shopco Distrib. Co., Inc. v. 

Commanding Gen., 885 F.2d 167, 172 & n.6 (4th Cir. 1989) 

(collecting decisions holding “military bases fall into the nonpublic forum category”). 

 *

 The Government contends the decision in Bryant v. Secretary 

of the Army collaterally estops Bryant from denying that a CEN is a 

nonpublic forum. In response, Bryant says that decision addressed 

only whether the letters-to-the-editor feature of a CEN is a public 

forum, which is not at issue here. See United States v. Stauffer 

Chem. Co., 464 U.S. 165, 170-71 (1984) (“the doctrine of collateral 

estoppel can apply to preclude relitigation of both issues of law and 

issues of fact if those issues were conclusively determined in a 

prior action”). We do not decide whether Bryant is so precluded 

because we think it clear the relevant forum here is nonpublic. 
12 

Bryant argues that the DoD has in practice “opened” the 

advertising sections by running “political” ads. He likens this 

case to Stewart, in which we held the display of “large 

banners” and the distribution of “political literature” “clearly 

suggest[ed] that [RFK Stadium] ha[d] a practice – if not a 

policy – of allowing various types of first amendment activity 

to take place.” 863 F.2d at 1019; see also Lebron v. Wash. 

Metro. Area Transit Auth., 749 F.2d 893, 896 & n.6 (D.C. 

Cir. 1984) (WMATA “converted its subway stations into 

public fora by accepting ... political advertising”). 

The Government responds that Bryant has “failed to 

produce a single advertisement in any CEN that is political, 

partisan, or even vaguely comparable to his rejected 

material.” Just so. Bryant offers up as “political” only the 

Dole and the FBI ads, neither of which has any political 

content or otherwise indicates the Government intended to 

open the forum for general expressive use. These two 

advertisements are, therefore, insufficient to show the DoD 

has anything approaching a “consistent policy and practice,” 

Stewart, 863 F.2d at 1017 (emphasis omitted), of permitting 

expressive advertisements in general, political advertisements 

in particular, or any advertisements like Bryant’s; indeed, its 

policy and practice have consistently been to exclude such 

advertisements. See Lehman, 418 U.S. at 300-01, 304 

(plurality) (city did not designate advertising spaces on buses 

public fora when it permitted various types of advertisements 

but did not permit “any political or public issue advertising”); 

Greer v. Spock, 424 U.S. 828, 831, 838-39 & n.10 (1976) 

(Army did not “convert Fort Dix into a public forum [by 

hosting] a civilian lecture on drug abuse, a religious service 

by a visiting preacher ... or a rock musical concert” but no 

“[s]peeches and demonstrations of a partisan political 

nature”); see also Shopco, 885 F.2d at 172-73 (Marine Corps 

did not designate Camp Lejeune’s residential area a public 
13 

forum by permitting delivery of pizza, laundry, and a civilian 

publication).

In sum, there is no evidence that, as the Government puts 

it, the DoD intended to establish or maintain the advertising 

section of a CEN “with the goal of fostering communication 

or assembly by the public.” The advertising section is, 

therefore, a nonpublic forum. Consequently, the restriction 

upon speech in § 4.11 need only be reasonable in light of the 

purpose of the forum and viewpoint-neutral. It is clearly 

both. 

The Government argues, and we agree, § 4.11 is 

reasonable on its face and as applied to Bryant’s ads. The 

restrictions in § 4.11 upon the content of advertising are 

reasonably designed to ensure that advertising furthers (or at 

least does not hinder) the mission of a military command or 

installation, which is obviously a legitimate goal. See

Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (“The 

military need not encourage debate or tolerate protest to the 

extent that such tolerance is required of the civilian state by 

the First Amendment; to accomplish its mission the military 

must foster instinctive obedience, unity, commitment, and 

esprit de corps”). The “political” content barred by § 4.11 – 

discussion of campaigns, candidates, parties, issues, and DoD 

policies – may disrupt the mission by undermining the 

camaraderie of service members, their clear understanding of 

and commitment to their mission, or even “the American 

constitutional tradition of a politically neutral military 

establishment under civilian control.” Greer, 424 U.S. at 839. 

Bryant’s advertisements posed just such a danger. The 

exclusion in § 4.11 of political advertising, and of Bryant’s 

advertisements in particular, is therefore reasonable. See id. 

at 831 & n.2, 839-40 (upholding regulations barring 

“[d]emonstrations, ... political speeches and similar activities” 

on military base and authorizing commander to exclude 
14 

“publication [that] presents a clear danger to the loyalty, 

discipline, or morale of troops at [the] installation”); cf. 

Lehman, 418 U.S. at 299-300, 304 (plurality) (transit system’s 

ban on “political advertising” held reasonable because 

political advertisements could subject riders to “blare of 

political propaganda” and create “lurking doubts about 

favoritism”). 

Bryant asserts § 4.11, “as written and applied to [his 

advertisements], discriminate[s] against [his] viewpoint.” 

Insofar as Bryant makes a claim of facial viewpoint 

discrimination, his claim is patently unfounded because, as 

the Government points out, § 4.11 by its terms does “not 

distinguish between political viewpoints.” Insofar as Bryant 

makes a claim of as-applied viewpoint discrimination, his 

claim is doubly forfeit: He never raised the claim in the 

district court, and in his opening brief on appeal he offered 

only the single, conclusory statement just quoted. SEC v. 

Loving Spirit Found., Inc., 392 F.3d 486, 491 (D.C. Cir. 

2004); N.Y. Rehab. Care Mgmt., LLC v. NLRB, 506 F.3d 

1070, 1076 (D.C. Cir. 2007) (“It is not enough merely to 

mention a possible argument in the most skeletal way, leaving 

the court to do counsel’s work”) (quotation marks omitted). 

III. Conclusion 

In sum, § 4.11 of DODI 5120.4 does not violate Bryant’s 

First Amendment rights. The regulation is clear, not vague. 

It is also reasonable in light of the purpose of the advertising 

section of a CEN and viewpoint-neutral, which, because the 

advertising section is a nonpublic forum, is all the First 

Amendment requires. The judgment of the district court is 

therefore 

Affirmed. 
KAVANAUGH, Circuit Judge, concurring: In defending 

this suit, the Government has accepted that the military 

newspapers’ advertising space is a “non-public forum” for 

First Amendment purposes, meaning that the military may not 

engage in viewpoint discrimination in accepting 

advertisements. The Government contends that the military 

has not engaged in impermissible viewpoint discrimination, 

and the Court agrees. In light of the way the Government 

argued the case, I join the Court’s fine opinion. Lest this 

precedent be misinterpreted, however, I write separately to 

point out that, as Judge Kollar-Kotelly suggested in footnote 5 

of her thorough district court opinion, there is a far easier way 

to analyze this kind of case under the Supreme Court’s 

precedents. See Bryant v. Rumsfeld, No. 04-cv-1125, slip op. 

at 12 n.5 (D.D.C. Mar. 12, 2007). 

These military-run newspapers and the advertising space 

in them are not forums for First Amendment purposes but 

instead are the Government’s own speech. See Arkansas 

Educ. Television Comm’n v. Forbes, 523 U.S. 666, 672-75 

(1998); see also Johanns v. Livestock Mktg. Ass’n, 544 U.S. 

550, 553, 559-60 (2005); United States v. Am. Library Ass’n, 

Inc., 539 U.S. 194, 203-05 (2003) (plurality opinion); Legal 

Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001); Bd. of 

Regents of Univ. of Wisconsin Sys. v. Southworth, 529 U.S. 

217, 234-35 (2000); Nat’l Endowment for the Arts v. Finley, 

524 U.S. 569, 587-88 (1998); Rosenberger v. Rector & 

Visitors of Univ. of Virginia, 515 U.S. 819, 833 (1995); Rust 

v. Sullivan, 500 U.S. 173, 196 (1991). As the case law makes 

clear, “government speech” can include not only the words of 

government officials but also “compilation of the speech of 

third parties” by government entities such as libraries, 

broadcasters, newspapers, museums, schools, and the like. 

People for the Ethical Treatment of Animals, Inc. v. Gittens, 

414 F.3d 23, 28 (D.C. Cir. 2005) (internal quotation marks 
2 

omitted). For example, “[w]hen a public broadcaster 

exercises editorial discretion in the selection and presentation 

of its programming, it engages in speech activity.” Arkansas 

Educ. Television Comm’n, 523 U.S. at 674. 

When government speech is involved, forum analysis 

does not apply and the Government may favor or espouse a 

particular viewpoint. As we have said: “The government 

may produce films and publications. It may run museums, 

libraries, television and radio stations, primary and secondary 

schools, and universities. In all such activities, the 

government engages in the type of viewpoint discrimination 

that would be unconstitutional if it were acting as a regulator 

of private speech.” Gittens, 414 F.3d at 29. The Supreme 

Court made the same point in the context of public 

broadcasters: “Much like a university selecting a 

commencement speaker, a public institution selecting 

speakers for a lecture series, or a public school prescribing its 

curriculum, a broadcaster by its nature will facilitate the 

expression of some viewpoints instead of others. Were the 

judiciary to require, and so to define and approve, preestablished criteria for access, it would risk implicating the 

courts in judgments that should be left to the exercise of 

journalistic discretion.” Arkansas Educ. Television Comm’n, 

523 U.S. at 674. The rule established by these cases is that 

the Government “has largely unlimited power to control what 

is said in its official organs (newspapers, radio broadcasts, and 

the like) or in organs that it officially endorses, even if this 

control is exercised in a viewpoint-based way.” EUGENE 

VOLOKH, THE FIRST AMENDMENT AND RELATED STATUTES:

PROBLEMS, CASES AND POLICY ARGUMENTS 410 (3d ed. 

2008). 

Those principles readily resolve this case. The military 

newspapers constitute government speech, and the military 
3 

therefore may exercise viewpoint-based editorial control in 

running them. The military may, for example, permit 

advertisements that say “Support the Troops” but decline 

advertisements that say “Oppose the Troops.” If forum 

analysis applied, however, the military could not maintain that 

kind of sensible editorial policy. 

The conclusion that forum analysis does not apply here 

has special force because this case involves military

newspapers. The United States Military maintains these 

newspapers “to facilitate accomplishment of the command or 

installation mission.” Department of Defense Instruction 

5120.4, ¶ 6.2.1.1.8 (June 16, 1997). As the Supreme Court 

has stated, the military is “not a deliberative body. It is the 

executive arm. Its law is that of obedience. . . . Speech that is 

protected in the civil population may nonetheless undermine 

the effectiveness of response to command.” Parker v. Levy, 

417 U.S. 733, 744, 759 (1974) (internal quotation marks 

omitted). Therefore, “review of military regulations 

challenged on First Amendment grounds is far more 

deferential than constitutional review of similar laws or 

regulations designed for civilian society. The military need 

not encourage debate or tolerate protest to the extent that such 

tolerance is required of the civilian state by the First 

Amendment; to accomplish its mission the military must 

foster instinctive obedience, unity, commitment, and esprit de 

corps.” Goldman v. Weinberger, 475 U.S. 503, 507 (1986). 

In light of these precedents, the plaintiff’s suggestion that the 

Judiciary micro-manage advertising selection by military 

newspapers not only is unsupported by First Amendment 

doctrine, but also would interfere with the military’s pursuit of 

its critical mission and involve the courts in military decisions 

and assessments of morale, discipline, and unit cohesion that 

the Supreme Court has indicated are well beyond the 

competence of judges. 
4 

With that understanding, I join the Court’s opinion, which 

correctly resolves the case as it was argued to us.