1 The Honorable Ri chard W. Goldberg,Judge of t he United St ates Court of I nterna tio nal Trade,sittin g by de signa tion. 1 07-2171-c v Suss man v Crawfo rd UNITED STATE S COURT OF APPEALS FOR THE S ECOND CIRCUI T August T erm, 2006 (Argued: M

ay 23, 2007 Dec ided: May 25,

2007) Docket No. 0 7-2171-cv M ICHAEL H. S USSMAN , B ENNET W EISS , M AURY K

NIGH T AND D EMOCRATIC A LLIANCE OF O RANGE C OUNTY , Plaintiffs-Appellants ,

-v.- B RI AN A. C RAWFORD , G ARRI SON C OMMANDER AND U NIT ED S TATES M ILITARY A CADEMY AT W EST P OINT , Defendants-Appellees

. Before: W

ALKER , C ABRANES , Circuit Judg es, and G OLDBERG 1 , Judge

. Plaintiffs m ove for a sta y of an orde r and judg ment of the District Co urt denyin g their req uest for a preliminary injunction compelling defendants to allow a political demonstration inside the gates of the United S tates Mil

itary Academy

at West Poi

nt during a graduation

ceremony at w

hich the Vice President o f the Unite d States w ill deli ver a comm encemen t address. Pl aintiffs cl aim that t he First Amendment affords them a right to protest within the gates of West Point and during graduation exercises

. Motion is denied. S TEPH EN B ERG STE IN , Bergstein & Ullrich, LLP, Chester, N

Y, for Plaintiffs-Appellants

. J EANETTE A. V

ARGAS , Assist

ant United S tates Attorney, (Michael J . Garcia, Uni

ted States Attorney, and Neil M. Co rwin and Mar a E.2 Trager, As sistant United Stat

es Attor neys, on the brief ), United States Attorney’s Office for the Southern Distric t of New Yor

k, New York, N

Y, for Defendants-Appellees. P ER C URIAM : Plaintiffs move to stay a May 18, 2007 order of the United States District Court for the Southern Distric t of New Yor

k (CharlesL. Briean

t, Judge ) denying their request for a preliminary injunction . The injun ction sou ght by plaint

iffs wou ld compel th e United Stat

es Militar y Academy at West Point

and its Gar

rison Com

mander, Colo nel Brian Cr awford (“Cr

awford”), to allow a demonstr ation by appr

oximately 1, 000 protes tors to be held ins ide the gatesof West Po int durin g a graduation ceremony at which the Vice President of the United States will deliver a c ommencement address. Although plaintiffs have been granted permission to conduct their protest immediately outside the gates of West Point, they claim that the First Amendment affords them a right to protest within the gates, in an area known as the Cantonment. As explained bel ow, the First Amendment affords plaintiff s no such right, and their mot ion is therefore denied. I. Background We recount b elow the relevant factsas presen ted by the Di strict Co urt in its May 18, 2007 order: Plaintiffs are a political organization and three individuals who oppose the policies of President George W. Bush, including but not limited to the ongoing military conflict in Iraq. Defendant Crawford is the Garrison Commander at the West Point Military Reservation (“the Reservation” or “West Poin

t”), where A

rmy offi cers have be en trained s ince 1802. Cr

awford is the offici al authoriz ed to receive written requests from persons desiring to protest or engage in demonstrations on the Reservatio n, pursuant to Section 1-2g of United Stat

es Militar y Academy Regulat

ion 27-2, wh

ich was adopted on M

ay 5, 2004.3

As contemplated by Regulat ion 27-2, plaintiffs

submitt ed a written

request dated April 1 6, 2007 and signe d by plai ntiff Micha el H. Sussma n (“Sussman ”), to stag e a protest march wit hin the W est Point Cant

onment on M

ay 26, 2007, t

he date of Wes t Point’s

graduation

ceremony. T

he stated purpose o f the march

is to demo nstrate a

gainst th e continued

“American in

vasion of Iraq.” On that dat

e, Vice President Richar

d B. Cheney is

scheduled t

o addressthe graduat

ing cadets. Plaintiffs contend the Vice President will use the commencement address as a forum from which to deliver a political speech in support of the ongoing military conflict in Iraq. Beginning in May 2004, plaintiffs have annually sponsored and conducted a march of approximat

ely 1,000 protestor s entirel y outside t

he West Poi

nt Reservat

ion, near t he Thayer G ate, followed by

a rally at Veteran’s Mem orial Park in the Village

of Highland

Falls, New Y

ork, lessthan one mile fr

om the Thay

er Gate. Th ese activit

ies requir ed no permi

t from de fendants

. West Point

is a federa

l military i nstallation which isthe locatio n of an academic institu tion that educates mi

litary cadet s over a fo ur-year co urse to b ecome offi cers and f uture leaders in the

United States Arm y. The We st Point Re servation consists of a pproximat ely 16,0 00 acres, primarily on the we st shore of the Hudson River. A smaller portion of the Reservation, referred to as the Cantonment, contains t he campu s of the Aca demy, the supporting faciliti es, cade t residenc e, acad emic hal ls, administrative offices, the workplace of military and civilian personnel, as well as a football field whe re the commenc ement exerci ses and th e Vice Presi dent’s s peech are sch eduled to t ake place. Thi s area is accessible only by three gates—Thayer Gate, Stony Lonesome Gate, and Washington Gate—w hich are part of a security perimeter that is manned by security personnel at all times. Members of the public are not allowed to enter the Cantonment without permission, but must state a legitimate purpose, present photograp hic identif

ication which

is subjec ted to a comp uter search, and allow an inspectio n of their vehicle. According to testimony presented before the District Court, if their demonstration were4

permitted, plaintiffs would assemble at Veterans’ Memorial Park at 8:30 AM on May 26, 2007, with approximat

ely 1,000 oth er partici

pants. T he protes tors plan

to proceed

through T

hayer Gate af

ter individually presenting identification to the security guards. The protestors would then proceed around a large field located in the West Point Cantonment and exit back through Thayer Gate and off the Cantonment and, eventually, the Reservation. Plaintiffs estimate that they would be wi thin the gates for one hour while commencement ceremonies are going forward. They claimed before the District Courtthat they would “provide security through designated marshals trained in crowd control and nonviolent dem onstrat

ion tactics .” They claim ed also that the demons tration wo uld be orderly and woul d not disrupt the graduation ceremonies. The location of the planned demonstration would place the protest ors appr oximately t

hree quart ers of a mi

le east of t

he graduati on itself

. By a letter dated May 14, 2007, Garrison Commander Crawford denied plaintiffs’ request to carry out t he planned dem onstrat

ion, stat ing: West Point

has never p ermitted

protest s or demo nstrations of any t ype inside t

he gates of the ins tallation. As a militar y installat ion, West P oint exist s to fulf ill a specif ic military mission. Permitting protests or demonstrations ins ide the gates of the installation is inconsistent with the military mission and can detract from the good order, discipline, security, morale, or loyalty of the Soldiers who are assigned to or work at the inst allation. * * * * It is my spec ific missio n on May 26 , 2007 to e nsure that g raduatio n events, including the arrival and departure of the [Vice President] and his party, as well as the family memb ers and fr

iends of g raduating Cad ets, are acco mplished i n an orderl

y manner. I have determi

ned that th ere is no s afe way for u p to 1,000 p eople to ass emble in any area on the military reservation on May 26, 2007 to protest the appearance of the Vice President of the United States at the graduation ceremony that morning without compromising the safety of our residents, our graduation visitors, and the protestors themselve s. On May 15, 2007, plaintiffs initiated the instant action in the United States District Court for the Southern Distr

ict of New Yo rk. Plaint

iffs’ com plaint allege d that Crawf

ord’s response t

o their request to h old the pl anned de monstration during co mmenceme nt exerci ses violat ed the First Amendment;

plaintiff s sought a preliminar

y injunctio n compellin

g defendant s to allow t

heir planne d5

demonstration on the West Point Cantonment to go forward. On May 18, 2007, the District Co urt entere d an order a nd judgme nt denyin g plainti ffs’ request for a preliminary injunction. The District Court concluded, in particular, that a preliminary injunction

was not war

ranted becau se (1) def

endants’ d ecision to

deny permis sion for

the planned p rotest w

as grounded i

n legitimat

e security concerns w

hich were “reasonable” and “entitled to judicial d eference”; and (2) defendants’ “content neutral regulation,” which “provides for permitting demonstrations outside of the Gates [of the Cantonment] but not inside,” did not violate the First Amendment in the circumst ances pres ented. Plaintiffs timely appealed the District Court’s judgment. On appeal, they raise substantially the same arguments as they raised before the District Court—namely, that (1) the “blanket prohibition” against speech within the West Point Cantonment violates the First Amendment’s guarantee of freedom of speech; and (2) the record does not support the District Court’s finding that legitimate security concerns outweigh plaintiffs’ First Amendment rights to free speech. II. Discussion A. Standar

d of Review “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted un

less the m ovant, by a clear sho wing , carries t he burden o f persuas

ion.” Mazurek v

. Armstrong

, 520 U.S. 968, 972 (1997) (em phasis in or iginal) . Any par ty seekin g a preli minary in junction “must demonstr ate that it w

ill suff er irrepar able harm in

the absence o f the requ ested relief.” Latino Officers Ass’n v. S afir , 170 F.3d 16 7, 171 (2d Cir . 1999). “[W]hen, as here, the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be granted on

ly if the mo

ving party m eets the mo re rigoro us likelih ood-of- success s tandard.” Wright v. Giuliani , 230 F.3d 54 3, 547 (2d Cir . 2000) (in ternal quo tation mar

ks omitt ed); see also Beal v. Stern , 1846

F.3d 117, 122-23 (2d Cir. 1999). That is, plaintiffs “must establish a clear or substantial likelihood of

success o n the merit s.” Tunick v. Safir , 209 F.3d 67 , 70 (2d Cir. 2000).

B. Analysis We conclude th at plaintif

fs have not

met their burden of

showing a “clear or sub stantial likelihood ” that they wi

ll succeed on

the merit s of their

First Am endment clai

m. Id. We reach this conclusio n for two r

easons. First, plaintiffs misunderstand the scope of the First Amendment’s pr otections as applied to individuals seeking to engage in political protests within the confines of a military installation. Plaintiffs do not contend that the West Point Cantonment, the venue where they seek to carry out their protest, is a “publ ic forum,” or even a “designa ted publi c forum,” i n which a heighte ned leve l of First Amendment p rotection s would apply. See, e.g. , Perry Edu c. Ass’n v . Perry Local Educator

s’ Ass’n , 460 U.S. 37, 46 (1983

); Make the Road by Walking, Inc. v. Turner , 378 F.3d 133, 142 (2d Cir. 2004). Rather, plaintiffsconceded both before the District Court and before this Court that the West Point campus is a “nonpublic forum” in which restrictions on speech are permissible “as long as [they are] reasonable and not an effort to suppr ess expression m erely becaus e public off icials oppo se the spe aker’s view .” Perry , 460 U.S. at 46. I ndeed, the Su preme Cour

t has spec ifically held

that milit ary bases ar

e not publi c forums

. Greer v. Spock , 424 U.S. 828 , 839 (1976) ; see also United State

s v. Alber tini , 472 U.S. 675 , 684-86 (1 985) (military base “is ordinarily not a public forum for First Amendment purposes even if it is open to the public”). The Supreme Court in Greer held that political candidates for national office had “no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix,” a military base. Greer

, 424 U.S. at 838. The Court further held that regulations barring candidates from conducting

political act

ivity on th e premises

of the bas e did not violate the Fir st Amendm ent. Id. The Court noted, in particular, that “the notion that federal military reservations, like municipal streets and2 We reject p lai nti ffs’ argument t hat the rel evant Unit ed Stat es Mili tary Academy Regulat ions authori ze the G arriso n C om m and er to per m it dem onst ratio ns w ithin th e W est P oint C anto nm ent. T hose regu lation s pro vide , in pertine nt part: In appr opria te cas es, the Garri son Commander . . . may give expr ess wri tten permiss ion fo r demonstrat

ions or act

ivi ty on t he West Point

Mili tary Res ervati on propert y outside the gates adjacent to the installation bo rders , only if the pr oced ures b elow are follow ed.”U .S.M.A . Reg 2 7-2(f) (em phasis ad ded ). The subse que nt section s of the re gulation , on wh ich plaintiffs re ly to sugg est that ad ditional au thority ex ists to auth ori ze pr otes ts wit hin the campus g ates , cl earl y fal l unde r t he pur

view o f t he “pr ocedure s bel ow” and t heref ore do not su ppo rt plain tiffs’ arg um ent. 7 parks, have traditionally served as a place for free public assembly and communication of thoughts by private cit izens is . . . histor

ically and cons titutionally false.” Id. We conclude that the holding of Greer is fully ap plicable wher e, as here, plaintiffs

challenge what they describe a s a “blank et policy ” of prohibi ting all protests wit hin the co nfines of the West Point Cant

onment. See id. at 839 (noting that the policy prohibiting political activity on military property was “a considered [military] policy, objectively and evenha ndedly applied, of keeping military activities . . . wholly free of entanglement with partisan political campa igns of any kind”). Plaintiffs admit that no other groups have been granted permission to demonstrate at this year’s graduation, and do not dis pute that n o such gro ups have ever been granted permission to demonstrate at any past graduation. Defendants’ policy of excluding protestors is therefore content-neutral and does not implicate t

he type of di scriminat

ory censor ship that

the Firs t Amendment

seeks to p revent. See id. at 838-39 (no ting that “ there is n o claim that the militar

y authorit ies discr iminated in

any way [when implementi

ng the polic

y],” and fur

ther noti ng that “no c andidate of

any political

stripe h ad ever been permitted to campaign there”). 2 Plaintiffs’ argument that the planned address of the Vice President affords them a right to express their poli

tical opinio ns within

the confin es of the Wes t Point Cantonment is without merit. Although t

he Vice President is a p olitical fi gure, he isalso an incu

mbent off icial in the U nited Stat

es Government, second in rank only to the Commander-in-Chief. As such, his mere presence on campus8

to address me mbers of the U nited Sta tes milita ry on their graduati on day do es not conv ert the We st Point campus into a public forum; nor does it serve as an open invitation for 1,000 or more outsiders to engage in freewheeling and potentiall y distract ing (if not disrupt ive) acts o f political

express ion. Cf. id. n.10 (“The fact that . . . speakers and entertainers had sometimes been invited to appear at [a military base] did n ot of its elf serve t o convert [

the base] i nto a public

forum or to confer upon polit

ical candida tes a . . . ri ght to cond uct their c ampaign s there. . . . [Nor did i t] leave authoriti es powerle ss thereafter to prevent any civilian from entering [the base] to speak on any subject whatever.”). Accordingly, plaintiffs have not shown a clear or substantial likelihood of success on the merits of their First Amendme nt claims. Second, we deem

plaintiff s’ argumen

ts in favo r of a prel

iminary inj unction to

be without

merit for another, independent reason—namely, the District Court properly concluded that legitimate security concerns were implicated by the potential admission of 1,000 protestors to a military installa tion during a visit by the Vice President o f the Unite d States. W e believ e that def endants’ concerns in this regard are grounded in the real possibility that, despite plaintiffs’ assurances of a peaceful and orderly protest, the protest and surrounding activities could prove unpredictable, and perhaps unmanageable. At the very least, permitting the planned protest would likely require defendants

to deploy add

itional se curity per sonnel and resourc es which may o r may not be available. We therefore conclude that a preliminary injunction is inappropriate in light of defendants’ security concerns, which in the c

ircumst ances pres ented are ent

irely “reas onable.” Perry , 460 U.S. at 4 6.

* * * * Accordingly, plaintiffs’ motion for a stay of the May 18, 2007 order and judgment of the District Co urt is DENIED

.