Earl Warren: Number 73, Retail Clerks International Association, Local Unions, Number 128 and 633, Petitioners, versus Lion Dry Goods, Incorporated, et al. Mr. Lippman.
S.g. Lippman: Mr. Chief Justice and may it please the Court. This is a labor case and it arises on a writ of certiorari to the Sixth Circuit Court of Appeals. We believe it presents a question of far reaching importance, involving the interpretation of Section 301 of the Labor Management Relations Act which provides suits for violation of contracts between an employer and a labor union representing employees and commerce, maybe brought in any District Court without any other jurisdictional regard. The precise question presented to this Court is whether a Federal District Court, in this instance sitting in Toledo, Ohio, may refuse to exercise jurisdiction under Section 301 to enforce arbitration awards, rendered pursuant to a strike settlement agreement between the employer and the union which represented some of the employees of the particular employer. The District Court found that they have no jurisdiction, the Court of Appeals sustained in what virtually amounted to a per curiam summary decision. The District Court's position was that 301 is to be given a very limited and narrow application and is only applicable where you have two factors, one, a collective bargaining agreement, which it did not define and two, where the union involved has been accorded exclusive bargaining rights, presumably under the National Labor Relations Act. This interpretation, of course, is a very narrow one and excludes from the jurisdiction of the District Courts, the wide variety of contracts between labor unions and employers and we think stultifies and frustrates the basic congressional policy, which was to open the federal courts, overcome the procedural difficulties in state courts for the enforcement of contracts so that we could have a regime perhaps of peaceful settlement as a substitute to a regime of industrial warfare. Now then, the basic facts are these, if it may please the Court. The local unions involved here were the joined collective bargaining agent, bargaining with a group of employers on a multiple employer basis. It enjoyed that status for a period of roughly 20 years, during which the period of course it negotiated numerous collective bargaining contracts. In November of 1947, the parties were in negotiations for a successor agreement, an impasse developed. The union elected to go on strike, and struck one of the employers involved here. It was a long and bitter strike which lasted for approximately 13 months. During the period of the strike, considerable litigations ensued. In December of 1958, the Toledo Mediation Committee, headed by Monsignor Ryan, intervened, and through his good offices, succeeded in bringing the strike to an end. However, as a condition of bringing the strike to a termination, the union was requested -- the union withdrew its claim as the exclusive bargaining agent even though there were hundreds of employees on strike, and stated it would not renew its request for -- as the bargaining agent unless and until it was certified. It agreed to cease all picketing activities, dismiss all litigation, execute mutual releases, releasing all parties from any and all liabilities arising out of strike. The employers, on their part, agreed to reinstate all of the strikers without discrimination to their former stations and stores, agreed that they would not discriminate against them and that they would not be discharged except for just cause. Also agrees that notwithstanding the union's disclaimer that it would not request bargaining -- exclusive bargaining rights that the union would or it's representatives would be permitted to access to the stores within reasonable hours for the purpose of communicating with employees. It was also appended to this strike settlement agreement, the complete panoply of wages, hours and working conditions actually representing the terms of the expired contract which the union sought to approve, but was unable to obtain its objective in addition to certain adjustments which the employer had unilaterally made during the course of the strike.
John M. Harlan II: How would this mediate that the private parties (Inaudible)?
S.g. Lippman: I do not believe that it has any statutory basis. It is a private organization which publi -- which serves in the public interest. It is a very well-known agency and I believe it's called the Toledo Labor Management Committee.
Earl Warren: It wasn't just an -- it wasn't just an ad hoc committee?
S.g. Lippman: No, sir. It is a continuing body and has existed for many years and a great deal has been written about the operations of this committee.
Potter Stewart: It has a long history in --
S.g. Lippman: It has a very long history.
Potter Stewart: -- dating back to the 1930s isn't it?
S.g. Lippman: Yes, sir, a very long history. However, within two or three months following the -- I might also point out one very important point. The strike settlement agreement provided that any disagreement respecting the interpretation or application of the agreement would be subject to grievances and would also be subject to final and binding arbitration by the Labor Management Committee. Within several months, several matters were submitted to the Labor Management Committee. Some of them were returned to the parties for negotiations, others were decided in favor of the employer, but two particular grievances were decided in favor of the union. One, that two particular striking employees should be reinstated to their precise former stations in the store and that two, the union which had been denied access to the employee cafeteria, for the purpose of communicating with the employees, should be granted that -- that prerogative because that was one of the provisions in the agreement. The employers refused to comply, petitioned the Labor Management Committee for reconsideration. The Committee, reaffirmed that's holding, pointing out that its decisions were final and binding and that they were correct, nevertheless, the employer still refused to comply. The union to that point has the alternative or perhaps resorting to economics -- to economic action, continuing the strikes and the activities involved for filing action for specific performance of the arbitration of warrants. The union had already been on strike for a long period so a great deal suffering is involved. The union decided to file an action under Section 301 for a specific performance of the arbitration of warrants. The record is here on stipulation which consist of the pleadings plus a stipulation of facts. So, we have a rather short record here. The lower court, as I indicated earlier, and the lower Court opinion is really the one which must be reviewed because the Court of Appeals' opinion is a virtual endorsement of the reasoning of the lower court and doesn't set forth any other rationale, they indicated that the lower court held that this was not a -- that 301 is limited to a collective bargaining agreement. A strike settlement agreement, without examining or explaining the terms and conditions, they said -- the lower court said, it's not a collective bargaining agreement. As to why it was not a collective bargaining agreement was not made clear because surely it was executed and negotiated on behalf of numerous employees. And then it further discussed the proposition and made a specific finding of fact that the union have disclaimed its right to be the bargaining -- the exclusive bargaining agent. And this was also a condition to the exercise of lower court to jurisdiction under Section 301. Studying the opinion, it's apparent to me that if there is any rationale to the lower court's opinion, it is found in the effort to say because Section 301 provides that suits for violation of contracts between an employer and a labor organization, representing employees in an industry affecting commerce, that the phrase representing employees presupposes a collective bargaining agreement, and from there, they have attempted to move a step further and therefore, when you're talking about representing employees, you're talking about an -- a representative which is the exclusive bargaining agent because we're talking about the National Labor Relations Act and its amendments.
Potter Stewart: I suppose that Judge Kloeb had in mind when he said at page 46, whether there is justification for taking the time of a court because of these differences between the parties has opened the grave question. Isn't that sought influence to the decision in this case? And then he refers to the causes of action as tenuous indeed based on grievances that are not waiting, isn't it?
S.g. Lippman: Well, of course, it is a very astonishing holding when all we have -- when a union after 13 months of strike has the soul fruit of the strike as disagreement and its enforcement and then for a court to say that it is taking up too much of the court's time to seek to enforce an agreement obtaining the reinstatement of employees to their former stations, giving the union access to the store which is the only effective means through which we could continue to make a communication, well, I -- frankly, I'm in rather astonishment because in effect, he was not only saying that in his judgment, these grievances were not important. Perhaps, they were not to him but I can assure in this honorable bench, they were of great importance to the union because as a result of their position, the agreement was unenforceable and was a scrap of paper. And the dispute and the disruptions continued and that, of course, may have influenced his judgment but if so it is very unfortunate because he laid down at -- on a basis of that a -- a doctrine of far reaching importance. I was, to continue my discussion, Mr. Justice Stewart. I pointed out the -- what appears to be the rationale of the court. I think it is plain that the court in that rationale was in serious error because the phrase which he relies upon is in no way a limitation on the jurisdiction of the court, but is the basis under which Congress regulates labor relations. It is the interstate aspect under which Congress could take hold of the dispute, under which Congress could enact 301. It of course says representing employees in an industry affecting commerce as defined in this chapter and so, it obviously was no way any jurisdiction of limitation. If I might, perhaps, speak a little harsh, I might say if one were to take that very same interpretation and go to Section 301 (b) which is the following section which sets of the procedural aspects -- some -- in some procedural aspects under 301, there it provides that a labor union shall be responsible for the acts of their agents and it uses the same precise language, representing employees in an industry affecting commerce. If the Court were to -- if the Court's interpretation would've -- were to prevail, that would mean that labor unions would not be responsible for the acts of their agents except in a situation involving a collective bargaining agreement and where the union is acknowledged and certified bargaining representative. That, of course, would be a plainly and absurd result because Congress has set up in Section 303, actions for damages where unions are -- have engaged in secondary boycotts, where unions have engaged in other kinds of labor union activities which are made to basis of damaged actions. But the court, in no way, saw -- came to grips with this particular problem I might point out.
Potter Stewart: Before you --
S.g. Lippman: Yes sir.
Potter Stewart: -- I'm still a little troubled by the court's reasoning -- the rationale of the court's decision and it strikes me and I'm now referring to page 47 of the record right at the end of the last full paragraph on that page that what the court may have been saying is that this contract wasn't -- it says, it wasn't entered into for the benefit of -- of these plaintiffs and that therefore, there might be some question of standing of whether these were proper parties?
S.g. Lippman: He did not in anyway rationalized that because it is plain that that was not in issue. In that respect, it is plain that the agreements under which arbitration occurs, the statements of understanding occurred between the employers and the union --
Potter Stewart: Of course part of the -- part of the agreement, part of the deal was that these plaintiffs, that is the labor union locals, should get out of the picture until or unless they were certified, isn't that correct?
S.g. Lippman: That is not -- that is not true because the -- because the plaintiffs, the unions were there negotiating this agreement on behalf of their employees. The union obtained the right to send representatives into the store for the purpose of communicating with employees --
Potter Stewart: And that's one of the grievances here, is it not?
S.g. Lippman: Yes. That's one of various grievances. In addition to that is that it's quite clear that when -- that the union has a vital concern with the enforceability of the contract as a whole, the sole fruit of the strike. It's also clear that the union --
Potter Stewart: Didn't they agree that they would no longer purport or seek to represent employees --
S.g. Lippman: It did not --
Potter Stewart: -- until they were certified by the NLRB?
S.g. Lippman: It did not quite say to represent employees if they will not seek to be recognized as the exclusive bargaining agent.
Potter Stewart: I see.
S.g. Lippman: But the right to represent employees --
Potter Stewart: I see.
S.g. Lippman: -- is a basic right as Mr. -- as just -- as Judge Hand pointed out in the Dowd versus Retail Clerks case. Even in face of a certified bargaining union, a rival union may still be chosen by certain employees to represent it in the handling of grievances and in the situation which is in no way inconsistent with the certified bargaining status of the rival union and surely in the situation of that type of the kind considered by Judge Hand in Dowd versus Retail Stores were fruit in our brief.
Felix Frankfurter: But no -- no arrangement can be made with such an outside body that's different from arrangements made with reference to other employees?
S.g. Lippman: Which -- which in anyway contradicts the basic agreement, that's correct sir.
John M. Harlan II: (Inaudible)
S.g. Lippman: Oh surely -- oh surely, I mean if plaintiffs have as much, they were -- it was much for the benefit of plaintiff as any collective bargaining agreement as any kind of arrangement --
John M. Harlan II: (Inaudible)
S.g. Lippman: Precisely.
John M. Harlan II: (Inaudible)
S.g. Lippman: Precisely sir.
John M. Harlan II: (Inaudible)
S.g. Lippman: Precisely sir. Yes sir, quite precisely.
John M. Harlan II: (Inaudible)
S.g. Lippman: Yes sir. Let me tell you about that sir. As this Court has pointed in Lincoln Mills, both the majority of the dissenting opinion agreed on this point that the legislative history of 301 is -- is cloudy and confusing, but there's one aspect which is quite clear. The Senate bill which sought to enact a provision similar to 301 did have reference to collective bargaining agreements.
John M. Harlan II: (Inaudible)
S.g. Lippman: In terms and such language, but without the finding just what is meant by collective bargaining? The House bill has no such reference. In conference, it was agreed to delete the reference to collective bargaining and present 301 as it's now written is the House version of 301, making absolutely no reference to any collective bargaining or exclusive bargaining status.
John M. Harlan II: (Inaudible)
S.g. Lippman: Correct sir. The phrase, I think, originated with the (Inaudible) was grabbed in their monumental study, I think they used that term for the first time and it deferred generally even -- it referred generally to agreements between unions without regard to whether they have exclusive bargaining status. The Court, of course, is cognizant particularly Justice Douglas because he reviewed the situation in one of his opinions that prior to the Wagner Act, it was quite common for unions to enter into contracts only on behalf of their members, only in behalf of certain groups would --
John M. Harlan II: (Inaudible)
S.g. Lippman: And those were the steel industry agreements that was with the original automobile industry agreements and that Congress was quite cognizant of that situation. And it was precisely the kind of situation which this Court reviewed in the consolidated Edison case where it recognized that public policy would be -- would be enhanced by the enforcing of an agreement with the members only contract there. And of course, this is one of the difficulties with the lower court's opinion because by the lower court's standards, you could not enforce -- you could not enforce such agreements. By the lower court's standards, you could not enforce for example an agreement which is entered into under Section 8 (f) of the Amendment to the Taft-Hartley Law. Under 8 (f), as the Court may well know, building trade unions have the privilege of entering into contracts with contractors prior to the hiring of any employee even though they have -- even though the majority status has in no respect been established. By the Court's standards, of course, there could be no such enforcement so that lower courts would have no jurisdiction to in any respect to consider these matters. A consent agreement for an election in which a union perhaps is picketing and claiming it's entitle to be recognized, the employer says are okay, I'll enter into agreement with you for an election to determine whether or not you are entitled to represent the employees. The union has no status. Surely, that is within the public policy to resolve a question of that sort. If the employer reneged on his agreement under those circumstances, this lower court will hold that it could not enforce such agreements. Or if the union was to be -- to engage in organizing activities and there should be something to discharge and the union threat this Court a strike and the employer says, “I think this was a just discharge and the union says okay” submit it to arbitration and the answer to a stipulation to be submitted to arbitration, the employer reneges. Shouldn't that be the kind of an agreement which is enforceable? But actually, our precise -- the precise facts of our case is really much narrower because what we have here is not really the enforcement of the agreement as a whole. What we have here precisely is merely the enforcement of certain arbitration awards rendered in favor of the unions and the employees involved. Arbitration awards in which the employer participated in the proceedings and as Justice Brennan pointed out, I believe, it was in the Steelworkers case, this in itself, although the arguments aside is a contract to accept and provide by the arbitration award. And this, of course, is the narrower question but the court below in no respect considered this issue or to the -- or to the Court in any respect below, considered the extent to which the strike settlement agreement in fact was a collective bargaining agreement. In the general term that they used, collective bargaining is not a phrase of art, it covers a broad situation. It seems to me, if the Court please, that the situation is precisely similar to the one which the Court faced in the Ryan case. In the Ryan case, as the Court well knows, a criminal proceeding was involved in the Section 302. Ryan was accused of, and found guilty, I believe, of misconduct in connection with the operation of his office. And it was argued that 302 have no application to Ryan because it only had application to the exclusive bargaining representative that the word -- the word “representative” meant exclusive bargaining representative. This Court pointed out in its decision the extent to which the entire policy of the law would be frustrated if such an interpretational granted and this is not the policy of the Act. So, it seems to me in this respect, the situation is quite similar to Ryan. It seems to me that the vice of the lower court's decision is found in its attempting to relate Section 301 to the unfair labor practices proceed -- sections and the representation sections of the Labor Act. Obviously, when Congress spoke about 301, it was not talking about unfair labor practices. It was talking about enforcement of contracts. Indeed, the legislative history demonstrates that an effort was made to hold a violation of a contract to be an unfair labor practice and this was rejected. It is, of course, clear that the labor board has no jurisdiction nor does it attempt in anyway to deal with the enforcement of contracts. This has left in the spirit of Lincoln Mills to the federal courts for the fashioning of a body of common law to be taken from our National Labor Policy and it is in no way related to 301. Congress knew very well how the state concepts of majority representation where that was to be a prerequisite if Congress desired to do so because in Section 8 (a) (3) of the Labor Act dealing with making of union shops, it is specifically provided that the union must be the exclusive bargaining representative before it can enter into a union shop agreement. In Section 8 (a) (5), dealing with the problems of collective bargaining before you can compel an employer to bargain with you, it is you being the union, the union must be the majority representative but those are other concepts entirely. Those are not the concepts of Section 301 and I submit that the court erred, it doesn't spell it out, but the only way I can rationalize it is that the court was relating 301 to unfair labor practices and yet there was a completely different policy involved. I suppose the situation could be dramatized if this were to rise in the steel industry or --
Earl Warren: We'll recess now. Mr. --


Warren E. Burger: Take a brief recess. We will hear arguments next in 74-848. Mr. Kairys who is in the building, I believe he is not in the courtroom, Oh! He is, you are. Then we will proceed with your case next and the Solicitor General. It will not be necessary to take recess then. You may just maintain you seats gentlemen and we will take Mr. -- we will take 74-848 Greer against Spock next. Mr. Solicitor General you may proceed whenever you are ready.
Robert H. Bork: Mr. Chief Justice may it please the Court. We are here on writ of certiorari to the Court of The Appeals for the Third Circuit. That Court held that the petitioners, one of them was the Commander of Fort Dixon, New Jersey is required by the First Amendment to the constitution, to permit political campaign speeches by respondents and the distribution of literature in areas of Fort Dixon, that are open to the civilian public. A preliminary injunction was entered in this case requiring that of the Commander. This Court refused to stay by a vote of five to four, I believe and now a permanent injunction has been entered. Respondent Spock and Hobson have been denied permission to hold a political rally on the Base under Fort Dix Regulation 210-26 which I will describe in a moment and the other four respondents were barred from the Base for the unauthorized distribution of literature under Fort Dix Regulation 210-27. The content of the particular literatures is not before us, is not in the record, is not an issue. Our respondents were barred because they refused to seek prior written approval. I think it will facilitate discussion if I take up the two issues separately and I would like to begin with the issue of political speech and campaign rallies on a Military Base. The Regulation at this issue is printed in page six of our brief, it is Fort Dix Regulation 210-26, paragraph 2 (a) and it states simply that demonstrations, picketing, sit-ins, protest marches, political speeches and similar activities are prohibited and will not be conducted on the Fort Dixon Military Reservation. The only part of that Regulation which is at issue here is the part that applies to and prohibits political speech -- political speeches, not the political speech in the informal sense but a formal political speech. Respondents I think in their brief and their argument and indeed I think the Court of Appeals for the Third Circuit discussed that Regulation as if it were subject to the same analysis as the ordinance of a City Council applying to civilians within that city and I have no trouble in agreeing if that were the case, if this were on a special context, indeed the Ordinance, such an Ordinance would be unconstitutional on First Amendment. But we are dealing here with a Military Base devoted to the training of soldiers, and It is never been held I think, or It is never been suggested. I do not believe that the First Amendment converts a Military Base into a Hyde park for the convenience of those who wish to make political campaign speeches. The fact that Fort Dix has and it does have some streets and parking lots, I do not think it makes a wide open forum for a partisan political rallies and I should note here that the difference from the civilian context is marked by the fact and I think it is undoubted that the Commander of Fort Dix has the lawful power to exclude all civilians from the Base. I take that that is true from Cafeteria Workers against McElroy, I take it that is true from 18 U.S.C. 1382 and indeed I think that to be true because of I think It is conceded in this case.
William H. Rehnquist: Well, it is true in Flower too, was it not?
Robert H. Bork: It is true in Flower also. I think Flower is a different case in a variety of reasons I am going to come to. One I think; one reason, one point of difference it seems to me is that street was indistinguishable from any other civilian street indeed continued straight through from the city in the way that is not true at Fort Dix, but I think there are other reasons that the Flower does not govern in this case.
Warren E. Burger: But if I recall correctly Flowers put emphasis on the fact that this was a public street, in fact going through that Base rather than the part of the Base.
Robert H. Bork: That is true. I think that street was indistinguishable from the any other public street with shops and civilians are and so forth.
Warren E. Burger: It barely meant that the Base there was divided into two parts by a public highway that went through some major portion.
Robert H. Bork: That is true and I think the Court said that their the Military had abandoned control of that street, I think definitely in Fort Dix that is not true.
William H. Rehnquist: But civilians can certainly come on the Fort Dix without being stopped at a guard gate or anything like that.
Robert H. Bork: They can. Now the Commander I think retains the lawful power to change that at any time.
William H. Rehnquist: Well, but did not he retained that power and in Fort Sam, Houston in Flower too?
Robert H. Bork: Mr. Justice Rehnquist, if I thought that Flower had announced that they -- if they -- principle so broad as to say that if the Commander let civilians on the Base then he must let them on Base for all purposes. That is that any access means all access. Then I would without hesitation ask this Court to modify or reverse or overrule Flower. I do not think it should be read that broadly. One reason I think is that this Court thought that street had been abandoned. I do not think there is any abandonment here for reasons I will go into and secondly 10 days after Flower in the Lloyd Corporation against Tanner case, this Court discussed the fact that a shopping center which allowed civilians or shoppers or people enter freely nevertheless did not extend the full invitation for all purposes. Now, I would take it that if a shopping center is capable of limiting the scope of the invitation, so is to exclude the exercise of First Amendment Leafleting, then a fortiori a Military Base has at least the same powers.
William H. Rehnquist: Well, can you not argue just the opposite though that since the shopping center is in many respects private, it may be able to limit an invitation in a way that the government which is not private in any respect can?
Robert H. Bork: If Your Honor, you are referring to the state action difference, I think there may be that difference. On the other hand in Logan Valley Plaza, state action was seen and in that section of Lloyd Corporation against Tanner which discusses the ability of a shopping center to extend an invitation which is limited in the scope, they are not dealing with the state action problem. So that I think that aspect of that opinion is fully applicable here. But in any event, I take it as a premise that It is un-denied that the Commander of this Base could exclude all civilians. I take it also as a premise that some deference is due to the judgment of the Military Commander, indeed that deference is expressed in 18 U.S.C. 1382 is to what activities harm the function of the Military. The fact that there are open spaces here and streets, I think in no way conforms this case to cases involving the civilian context as Hague against CIO speaks of the streets in time and memorial being used as places for discussion and exchange of political ideas and it is that tradition that use that makes them a public forum and some sense. In Lehman against Shaker Heights, this Court quoted the words of Lord Dunedin who said and I think it is perfectly applicable here, the truth is that open spaces and public places differ very much in their character. And before you can say whether a certain thing can be done on a certain place, you have to know the history of the particular place. The history of Military Bases in this country has been uniform. Campaign speeches have not been given on them. That has been something that has never been allowed. So far as I know Dr. Spock is the first candidate for a national public office or indeed for any public office who has attempted to give a political speech on a Base.
Byron R. White: What about a – say a charter against a city or some initiative or referendum matter, a speech in support or an opposition to --
Robert H. Bork: You mean as opposed to a candidate, an issue speech? Mr. Justice White the Regulation at Fort Dix I take it would cover that because it would be a political speech, I take it -- I am not sure that they mean partisan political speech by that, and it might be an issue political speech as well. But that of course is not what is before us in this particular case.
Byron R. White: But I think you are positing -- but you are justifying the Regulation on the grounds that particular kinds of speech just do not fit in the Military?
Robert H. Bork: Yes, yes I am and I would have thought that that was clear from the tradition of this country in that the law was clear to that effect and indeed it seems to me there are only really two arguments advanced by the Court of Appeals and by the respondents against it.
Byron R. White: But you would I suppose, that you -- but you are saying the Regulation forbids all political speech, which is not sovereign?
Robert H. Bork: That is true.
Byron R. White: And you would not be here I suppose if it just to prohibit at some kinds of political speech?
Robert H. Bork: If it were discriminatory you mean Mr. Justice White I should have, no I would not be here. This is a non-discriminatory Regulation designed for very good purposes.
William H. Rehnquist: You would love that case be argued by the General Counsel of the Army?
Robert H. Bork: I would author -- I might at the outside authorize the filing of a brief Mr. Justice Rehnquist, but the Court of Appeals' argument rest upon two prepositions both of which I think that it demonstrably falls. The first is and I quote, “if the reservation is open to all the rest of the public, there is no basis for holding that it maybe closed selectively to political candidates or to distributors of unapproved literature.” Now, since it conceded that the Base Commander could seal a Base to all civilians that argument merely asserts that if the Commander allows any access by civilians he is constitutionally required to allow all access.
Potter Stewart: Well, would not you concede that if he does in certain areas of the Base allow access to the public, he has to allow access to every member, the public who is not misbehaving or showing something?
Robert H. Bork: I think he has to allow access to every --
Potter Stewart: He has to allow access to Doctor Spock?
Robert H. Bork: Allow access to Doctor -- Doctor Spock has complete access to the Base at any Base Mr. Justice Stewart. I am talking about Doctor Spock for the purpose of making a political campaign speech.
Potter Stewart: Yes, that is the way he is put it was not I believe (Voice Overlap)
Robert H. Bork: Access for all purposes perhaps should be there. If you allow access for any purposes the Court seems to be saying he must allow access for all (Voice Overlap)
Potter Stewart: That is a different purpose?
Robert H. Bork: Now, that proposition I think if it were true it would force every Commander to choose between sealing his Base tight or allowing it to become Hyde park, a forum for political discussion and indeed if that proposition were true, I take at this Court would face much the same choice because this Court has limited access, political banners and campaign speeches may not be made in this building or on this premises, although access is allowed to the public. So I take it that if that proposition were generally true, this Court would put in the same choice of excluding the public or allowing political speech at least when it did not interfere with a particular session of the Court. Any of those choices be quite wrong and it be quite wrong I think for reasons that parallel the reasons of forcing such a choice upon the Military would be quite wrong. And as I have mentioned also the Court of Appeals' proposition that access for any purposes, access were all purposes, seems to me also to be contradicted by the later opinion in Lloyd Corporation against Tanner. It is a simple non sequitur and I think there must be some other policy reason one would have to search for. Now, the only other argument worth mentioning made by the Court of Appeals is that a wide range of newspapers and magazines are permitted on the Base and the troops are allowed to listen to radio and television without restrictions or after the hours and the Court notes that sometimes minor party candidates do not get as much as media coverage and they do not have much money to buy media coverage as more popular or better known candidates do, and therefore, must make do with face to face campaigning. Now, the Court concludes from that, that the minor party candidate is harmed because he needs to get on the Base, the face to face campaigning all over the rest of the nation to engage in, whereas major party candidates are reported in the New York Times or any of the magazines or on television. And the Court concludes this remarkable analysis by referring to the Fort Dix policy therefore has “a feigned neutrality that serves no discernable Military purpose” and I would like to raise several objections to that although there are more than several that could be made. In the first place, I would like to raise the objection or like to point out that the statement that there is no discernable Military policy is simply wrong. In fact there is a crucial Military policy and that policy is the traditional safeguard in this nation of the separation of the Military establishment from our political processes. It is not a question of will these people passing out leaflets or making speeches interfere with the training exercise, of course that can be prevented and it is not a question of will political opinions reach the soldiers, they reach in all kinds of ways. Soldiers are citizens and they get opinions through the media from each other from civilians outside in a variety ways.
Thurgood Marshall: Lest to have a problem, a little problem which is one point. You could mail these leaflets and that is okay.
Robert H. Bork: That is true. Well, if the leaflets --
Thurgood Marshall: If they were mailed there is no restriction against that, if they were mailed it each soldier on the Base?
Robert H. Bork: There is no restriction on the sense that the mail is not covered.
Thurgood Marshall: Right?
Robert H. Bork: But I think Mr. Justice Marshall --
Thurgood Marshall: But he cannot -- but you can hand them out. Now --
Robert H. Bork: Well, you can hand them out if you get prior approval and prior approval the Regulation says will be granted.
Thurgood Marshall: But you do not get prior approval of the mailing?
Robert H. Bork: Well no, but it seems to me not a good objection to this policy to say that the Military has not expanded the policy to cover censorship of the mails. The Military has been quite reasonable about these policies and it has not attempted to censor or cut things out. It has tried to impose minimal Regulations.
Thurgood Marshall: If they do, I imagine that would be litigated in it too?
Robert H. Bork: I imagine it might be Mr. Justice Marshall. But I think the -- I think the fact that they have not tried to censor the mails is not a reason to object to their attempt to make sure that leaflets are not distributed which pose a clear danger as they say to discipline, morale and --
Byron R. White: Do you think that the Base forbids soldier stationed there from attending political meetings off the Base?
Robert H. Bork: No, they do not Mr. Justice White.
Byron R. White: And well could they?
Robert H. Bork: Could they? I do not believe so. They do have a Regulation that says if they attend political -- partisan political meetings off-Base they should not, they must not attended in uniform which is -- which points out the clear symbolic line that the Military is trying to draw between Military activity and political activity.
Byron R. White: So, is not the – is not the – it is the way -- their worry is how the Military would look to the public rather than any danger to the soldier?
Robert H. Bork: No, I think it is -- I think not -- I think the American soldier.
Byron R. White: Well, they do not let him go off to the Base and attend any political meeting he wants to attend?
Robert H. Bork: That is quite true Mr. Justice White and this is not an attempt to prevent him from hearing any ideas.
Byron R. White: And they listen the the radio all he wants to and read all the magazines and --
Robert H. Bork: I might say that the fact that the Military allows all of these things and it is so wide open, it seems to me not an argument against that narrow --
Byron R. White: What is then -- what is the reason then for the Regulation.
Robert H. Bork: Well, I think it is simply this; it is always been understood that there is this separation between the Military and the political process. It is understood that you are also a citizen, but when you come on the Base, at that point you leave organized partisan political activity behind you. It is not part of your Military life and I think that is largely a symbolic difference, but it is a crucial symbolic difference. It separates in the minds of the soldiers. He knows when he is in his unit; he is not a political animal. He may have his opinion, but right now he is being a Military Commander. That has been a tradition to the American politics and American Military life, throughout most of the history of this republic and I think it is a crucial tradition. It is crucial for two reasons, it is crucial for two -- in two aspects.
Byron R. White: But they said while they are sitting there on the Base and they are free to listen to political speeches on the radio or on television and sit around in their uniforms and read the magazines, read speeches?
Robert H. Bork: That is true. I think we are dealing and we must in this area with differences of the degree which in some point becomes so large that they become differences in kind and it seems to me that the soldier listening to a radio, reading a speech, talking in the barracks, going to a rally also.
Speaker: (Inaudible)
Robert H. Bork: Well, let me (Inaudible). The first three examples is reached as in individual and that is quite a different thing from rallying soldiers on a Base where they perceive themselves as soldiers and subjecting them to political exhortation. That I think encourages a blurring of the distinction between the Military and the civilian and regular political process and that is the distinction I think we would be in very bad shape if we blurred. Of course it requires drawing lines. The Military here has drawn the line as far back as they can and allowed as much as they can which I think ought not to be turned against them. I think it is commendable if they have drawn the line and the Regulation as narrowly as they have. If we want to blur this distinction so that troops are subjected to political speeches on Base gathering crowds on Base, we then begin to teach them that political ideas properly mixed with Military enclaves, Military functions. That seems to be a very bad idea. It may affect ultimately their performance of their Military duties. It may affect their attitude towards their superiors or towards their juniors. There will be times in this country again I am sure of enormous unrest and great descent of civil disobedience. One thing we ought to preserve is the idea that the Military does not take part in that as Military, so that we do not get Military disobedience in the name of political ideas. The other thing about that that one ought to mention, we live in quiet times now. But if political speeches and campaign rallies can be held on the Base by civilians I do not see how troops can be kept from holding their own political rallies and campaign speeches on the Base. There may be times and conditions in this country in which they will be a Military view point or at least you encourage the formation of a Military view point, if you allow that kind of thing. And I think that would be very bad for American politics if there were a Military political view point. What this Regulation has designed to implement narrowly and carefully is a tradition that prevents a politicized Military and a tradition that prevents militarized politics and that is what I think is at stake here and I think the fact that so many other sources of information are open to the troops is not a reason to question this policy. Now, the statement that this is a feigned neutrality, I think -- I mean, I hope I have shown that there is a discernable, indeed a crucial Military policy that is served by these Regulations, but I should like to address --
Potter Stewart: You have been addressing your self up to now primarily to Regulation 210-26 2A, have not you?
Robert H. Bork: I have been Mr. Justice Stewart but I got drawn -- I got drawn into the --
Potter Stewart: I know you did.
Robert H. Bork: To the leafleting as well.
Potter Stewart: I know you did but it was your purpose to separate the two and --
Robert H. Bork: At the out set that was the -- it was my purpose and I have been addressing this, although I think the Leafleting Regulation is close to it. But I wanted to say one of the thing about the statement that this is a feigned neutrality. It is a real neutrality and if there is a disadvantage in getting media, proportional media coverage by these candidates financially disadvantaged candidates have no greater First Amendment rights than other candidates. The constitution does not require the Commander at Fort Dix to make his troops available as compensation for a candidate’s inability to buy ads or to attract the New York Times or the attention of NBC. If indeed that were the constitution which the Third Circuit appears to think it is, I would suppose that it would be true that the Commander could close his Base to all civilians except minor party candidates because he would be required to use his Base as a reservoir to compensate disadvantaged candidates. Now, there are more objections to it but I trust or I have shown at least that the policy is real and that the neutrality is not feigned but real. Now, the Leafleting Regulation is really here on its face in effect because we have no example of the leaflets. They have not -- not in evidence because they were not submitted for approval, but I should say that the way this operates is the leaflets are or any matter would be passed out as presented to the Base Commander, he is directed by the Regulations that he is to allow distribution unless he makes a finding, unless he makes finding supported by evidence that he can state, there would be a clear danger to morale and discipline on his Base.
Speaker: Did he in fact that instant inquiry has done that? He has made those findings?
Robert H. Bork: I believe so. It would -- I believe so but I -- if I am wrong I will correct my self later. If he makes such a finding, he must forward it by telephonic communication to a higher echelon indeed to Army Headquarters so that if they can decide and impose a uniformed national policy on this. So that we do not have Base Commanders doing aberrational things and he is specifically instructed to whether he likes the literature and has nothing to do with it. He is specifically instructed that it does not matter for literature is critical of U.S. policies or officials and it does not matter even if it is unfairly critical. All he may judge is whether it poses a clear danger to the discipline and good order and morale of the troops.
Warren E. Burger: Mr. Solicitor General, may be it takes a sound of order back to the historical aspect, but is there some history that during the Civil War Commanders who favored Lincoln gave special treatment to campaigners who came on the Bases and out into army camps even in the field at the time they were setting up arrangements for the balloting of soldiers?
Robert H. Bork: Indeed there -- indeed there have been violations of this tradition throughout our history and I think those were examples of it Mr. Chief Justice. However, to say that a tradition has been violated, I do not think means that it is not important, not crucial and not worth trying to preserve. Indeed Congress, in a number of statues I think, cited at page 26 of our -- well, it is not 26, but cited in our brief has attempted to -- page 36 of our brief, we list some statutes in which Congress has tried to shore up this tradition and it maybe precisely because of knowledge that in the past some violations and breaches in that tradition have occurred. I was -- my attention was called just yesterday to a letter by the President Lincoln to General Hooker when he appoint him in his command in which he said I am appointing you, there is some things about you I like and some things about you I do not like, he said, but you do keep -- he was a very straight forward President and he said, but you do keep your Military duties and politics separate and that I like. So I think that this has been a tradition and a safeguard that we have tried to insist upon, that has been violated from time to time, but I think that is only all the more reason to try to insist upon it now and continue to insist upon it. I should like to reserve the remainder of my time.
Warren E. Burger: Very well Mr. Solicitor General. Mr. Kairys.
David Kairys: Mr. Chief Justice Burger may it please the Court. I would like to start with a few facts about the Base, particularly regarding the questions that were asked by the Court of Solicitor General. First of all, I do not note anyway in which the Solicitor General actually distinguishes this Base or these areas that First Amendment Rights were granted in this case from either the areas at Fort Sam Houston involved in the Flower or from the usual kinds of civilian streets. They say that it is distinguishable and I still do not see the specific way that they distinguish it. Regarding the question of Mr. Chief Justice Burger Burger, there are also highways, state roads and county roads that go completely across the Base and the one involving several the respondents here in the Wrightstown road exit which is pictured in appendix, volume 2 at page E2 is certainly indistinguishable from the city. You cannot even figure out on that picture where Base starts and where the city ends. It seems to me I have never seen Fort Sam Houston, but it seems to me that that is a picture of what this Court seem to describe in that case.
Warren E. Burger: You mean, it is because it looks like a company town of an older case, it is a company town?
David Kairys: No, I am saying that the Base is -- the road goes right through the city and right through the Base exactly as in Flower and it seems to me that it is indistinguishable from a city street.
Warren E. Burger: Well, it would not satisfy you though if your client were permitted to make a speech out in the streets subject to all traffic hazards of the whole town?
David Kairys: No. I am referring to the sidewalk on that street.
William H. Rehnquist: On E2 Mr. Kairys, which side is the Base well in -- which side is this Wrightstown?
David Kairys: The photographer is on the Base and the Wrightstown is in beyond -- do you see the railroad crossing, the crossed white fence at the top of a post where the railroad comes, right next to that there is two small mounds, this is in the testimony regarding this picture, there is two small mounds on either side of the street that indicate that you are entering the Base.
William H. Rehnquist: So the near left side is the Base?
David Kairys: The home, the street where that railroad crossing is, beyond that railroad crossing is Wrightstown, New Jersey in the background of the picture towards the photographer closer to the picture is the Base from then and then --
Speaker: (Inaudible) Where is the Cleaner and Laundry on (Voice Overlap)?
David Kairys: That is in Wrightstown.
Speaker: And what about the one on the left side also a Cleaner and Laundry, there are two Cleaners and Laundry?
David Kairys: The two Cleaners are in Wrightstown, they are just before the entrance to the Base. It is a really matter as the Court of Appeals said of about five feet from the commercial district of Wrightstown to the beginning of the Base.
Speaker: And that Barge just beyond the Cleaner and Laundry, that is also Wrightstown?
David Kairys: That is all Wrightstown, yes sir. The two civilians on the Base, on this side, the photographer side of the railroad crossing are respondents Ginaven and Misch actually handing leaflets to two soldiers just prior to their arrest. This was taken actually just prior to their actual arrest.
Harry A. Blackmun: I suppose Mr. Kairys there is one distinction between Flowers in this case, that one was not plenary argument. It was a summary disposal, was it not?
David Kairys: Oh! Yes, procedurally, yes. Are you referring some distinction between the particular area the Base involved there and the one here?
Harry A. Blackmun: No, you just said there was not any difference between Flower case and this one and you are already saying that (Voice Overlap) that distinction --
David Kairys: Yes sir, I was limiting myself, I am sorry, I should have been clear. I was limiting myself to the description of the actual areas involved that they are the same and I do not think it is fair to say that the Base was abandoned in any kind of sense of abandoning control was the Solicitor General says in Flower. It is evident from the fact that Flower was arrested, their twice by Military authorities that indeed the Military exercised control over that area.
Harry A. Blackmun: That automobile that is turning right I need to – is that – is the highway at that point --
David Kairys: That is a civilian vehicle --
Harry A. Blackmun: Is that in the Base or is that a State Highway?
David Kairys: That is on the Base, but it is a state road that goes right through the Base.
Harry A. Blackmun: Well, that is my question.
David Kairys: Yes sir.
Harry A. Blackmun: In other words there are State roads that go through the Base which are not under the control of the Military that was (Voice Overlap).
David Kairys: Absolutely, the State retained easements over those roads when the land was ceded to the Military.
Harry A. Blackmun: As I remember it, that has been open to the Base many times. There are countless streets like that, are it not?
David Kairys: There are. The Colonel also and the Provost Marshal testified that there were ten such an entrances similar to this that are wholly open to the public merely marked that you are entering the Base. As a matter of fact on exhibit E4, that is taken on New Jersey Route 68 which is another State road that goes entirely cross the Base and it marks the Base as it does at the other one and there is a sign on the gate there that says “Visitors Welcome”.
Thurgood Marshall: Whose jurisdiction of the roads on the traffic violations?
David Kairys: They are patrolled by the Military.
Thurgood Marshall: So the Military has at least the mentality?
David Kairys: No.
Byron R. White: What if you wanted to have -- uphold a parade on one of those State streets -- State roads? Whom do you the ask (Inaudible)?
David Kairys: Within the Base? You are referring to the --
Byron R. White: Along the State – it is a State Highway though – State 58 where it goes through the Base?
David Kairys: You would have to ask the Military authorities.
Byron R. White: Is that the -- why is that?
David Kairys: The only thing that state has is an easement across the Base.
Byron R. White: Well, what if it wants to use that easement for a parade?
David Kairys: Well I know if it is ever happened, but the Military proclaims its control over those roads entirely and it does close them, for instance if there is a demonstration or other activity at McGuire Air Force Base which is down the road, the Military will entirely close New Jersey Route 68.
Byron R. White: (Voice Overlap) the state has that is subject to Military requirements?
David Kairys: That is correct.
Speaker: Mr. Kairys --(Inaudible) wants to if the Military said that—(Voice Overlap)
David Kairys: Then the States seems to exceed to that.
Speaker: Mr. Kairys, who maintains the roads?
David Kairys: As I understand the Military does.
Speaker: Do the State Police have any jurisdiction on any of these roads or streets?
David Kairys: I do not believe so. I think the jurisdiction ends right at the beginning of the Base on any of the roads.
Speaker: So they are maintained and policed by the Military?
David Kairys: That is correct. They are definitely patrolled by the Military in any traffic violations or process by the Military.
Speaker: Are there any state courts within Fort Dix?
David Kairys: Courts?
Speaker: Courts, yes.
David Kairys: No sir.
Speaker: No civil judicial body sits within Fort Dix’s boundaries?
David Kairys: That is correct.
Thurgood Marshall: So the only state thing is they have State signs and that is all?
David Kairys: You mean numbers on the road?
Thurgood Marshall: That is all the State has.
David Kairys: That is correct and the State has ceded all other authority over to the Military regarding this roads. And the Military --
Byron R. White: Do you know whether the highway right away is a -- is beyond parking lines or the sides walk on part of the right a way or not?
David Kairys: I do not know. But the Military exercises effective control over the sidewalks --
Byron R. White: I understand that but just like a -- but it could be or in some cities the part of the curb areas (Inaudible)
David Kairys: It is possible. I do not know.
Speaker: If you get a traffic ticket what could you – do you report to if you get it --
David Kairys: If you get it from the Military.
Speaker: A Military tribunal?
David Kairys: Yes, I believe they will take you to a magistrate if it is anything serious. Yes. In any violations of law they report to the U.S. Attorney in that area.
Warren E. Burger: I am not sure I got your response clear on the parade matter that Justice White was inquiring about. If Doctor Spock wanted to run a parade down there with torch lights and the usual political parade, is it your view that the Military Commander could not refuse such a parade permit?
David Kairys: Well, it seems to me that, first of all parades were not included or no demonstrations in this particular case, but they are protected forms of speech. It seems to me that that would have to undergo the same kind of analysis that we have urged the court to take in this case and that is that we have to look at the Government interest involved under the test that this Court has prescribed over and over again and see if that is an important or substantial interest to see if it is unrelated to suppression of speech and if the restrictions of speech are no greater than our essential to further into that interest and if not then the First Amendment Rights should be allowed, I believe. I think that is what the Solicitor General fails to do in this case at all is to subject this Base to that kind of analysis, rather than go through the analysis and point to some specific Military interest, any kind of concrete interest. What the government has done essentially is to create a kind of false dichotomy that has a little bit emotional appeal, they say it is a question of a Military Base rather than street sidewalks and parks. Well, these are streets, sidewalks and parks and they are open to the public. People can go on there for reason they please or for no reason at all. There is no limit on that.
Warren E. Burger: You agree that the Commander of the Base could exclude them all for all purposes?
David Kairys: I do, certainly. But I think implicit in the difference, say between a decision in Hague v. CIO and the decision in Davis v. Massachusetts is that power to exclude all does not necessarily include the lesser power to exclude some or to exclude based on content. I mean, that is essentially, it seems to me what the Solicitor General is saying is that we go back to Davis v. Massachusetts where the only question is property rights and if you have -- since you have the right to totally exclude someone from your property, you also have the lesser right to partially exclude, to selectively exclude or to exclude certain purposes. It seems to me that was overruled in Hague and since then once something is open to the public, people are allowed to come on and talk for any reason. The Provost Marshal testify that the sight of a civilian talking to a few soldiers in front of the PX or in front of the cafeteria were so common and that it would not even be noticed. There is no question of them going up and checking and asking what that person is saying at all?
Byron R. White: What about coming on the Base for the purpose of making a speech that attacks Military policy and is aimed at urging soldiers not to fight in a particular battle or particular war?
David Kairys: Well, you termed that whether that could be punished afterward?
Byron R. White: No, I am talking about whether that is the kind of a speech that Commander could exclude from the Base?
David Kairys: I think -- well, I do not think under the guise of that danger he could exclude all speeches and that is really the question?
Byron R. White: What I asked you, I asked you whether he could exclude that one?
David Kairys: Yes.
Byron R. White: And -- well that the United States' position is that you ought to also be able to exclude political speech generally because political speech is inconsistent, that kind of political activity is inconsistent with the Military posture?
David Kairys: But they offered no evidence or argument about these particular speakers. The content of what they are going to say at the Fort --
Byron R. White: I know -- they say -- but they just say political speech generally?
David Kairys: Well, the then that gets -- it gets to the neutrality point which I think is a separate point. I think what they are saying is that the only kind of favoritism that makes any difference to the Solicitor General is favoritism as to who speaks person to person, that one form of speech. They want to eliminate favoritism as to one form of speech. It seems to me that that is not really the relevant concern. When you have partisan --
Byron R. White: (Inaudible)
David Kairys: Excuse me.
Byron R. White: That is neutral -- that neutral as to people?
David Kairys: As to that one form of speech, they are neutral. They are wrong when they say Doctor Spock is the first one that gave a political speech, the first one was Former Vice President Agnew who gave a speech in -- at Quonset Naval Base in Rhode Island. Permission to give that speech was granted three days after they had made an argument, the Military had made an argument based on neutrality, the exact icon that they make here in which they opposed in Court, they made this argument opposing also Doctor Spock in the same respondents in this case who sought access to that same Base.
Potter Stewart: He -- the speaker in the case you gave was the incumbent Vice President, was not he?
David Kairys: That is correct and he gave a political speech --
Potter Stewart: And one remembers a great many occasions when an incumbent President spoke only and almost only at Military Bases for the last year so of his incumbency.
David Kairys: Yes.
Potter Stewart: He is Commander in Chief and I suppose he could change any Regulations that might be made at Fort Dix or anywhere else, could not he?
David Kairys: That is correct. I think this sort of neutrality that obviously does not really mean much to the Department of Defense. It is three days after they argued in Court, they could grant permission for a political candidate to make a political speech. It obviously does not mean anything to them.
William H. Rehnquist: Well, that -- but those are two different arguments. One is to say that the position really has not been maintained at all and it is just kind of a screen that the Defense Department really does not follow this position of neutrality, but it is quite another thing to say that the position even if maintained is not a legitimate or compelling Government interest which would justify what the Army tried to do here?
David Kairys: We are saying both. I am saying even if putting aside what they did at Quonset Naval Base, that they are trying to maintain a kind of neutrality around one form of speech. They are saying that as to face to face speech, we are going to be totally neutral. Of course it is a pretty expensive brand of neutrality because it means that the only candidates who can get information to the voters and there is 22,000 voters at Fort Dix, the only candidates who could do that are the ones who can afford to hire the mass media to get their message across.
Thurgood Marshall: Can you help me with one point -- this is not the General Army Regulation, this is a Regulation of Fort Dix you are talking about, is it not?
David Kairys: That is correct.
Thurgood Marshall: So where does Quonset come in to this?
David Kairys: I was just responding to the statement made by the Solicitor General that Doctor Spock was the first candidate ever to do a campaign speech on a Base, that is all.
Thurgood Marshall: What does that have to do with this case?
David Kairys: It is just factually, it was not correct that Former Vice President Agnew had been the first one.
Thurgood Marshall: It is an unimportant fact and it was not correct.
David Kairys: Okay.
Speaker: Mr. Kairys.
David Kairys: Yes!
Speaker: Did I understand you to say that the Base properly could exclude a speaker who advocated pure pacifism, no fighting, no wars?
David Kairys: Well, certainly if it gets to the point of urging insubordination, failure to follow orders, yes. I think that would also -- that could involve protected speech and the circumstances of any such case, all of the circumstances would have to be included in the same analysis.
Speaker: Suppose you had candidate for President who was running on a platform of peace under any and all circumstances, never fight, never resist, total pacifism, but he was a candidate for President, how would you analyze that?
David Kairys: I would apply myself a clear and present danger standard to statements like that by a civilian, certainly by a civilian candidate for President and if there were no clear and present danger of unlawful activities or of violence or something like that then I would say it is protected.
Warren E. Burger: Suppose, let me pursue hypothetical that Justice White was giving you, suppose we had some city in the country that had problems such as we had in Little Rock about 20 years ago and a 101st Airborne Division was ordered to stand ready to fly out to that city and see that Federal Law was enforced and so a Senator from that state asks the Base Commander for permission to come on the Base and explain to the soldiers why they should not have any part of it or to explain anything that he wants to explain. Do you think the Commander has got to allow that Senator to come on the Base?
David Kairys: If he gets to the point of urging disobedience of orders then I think it is no longer protected.
Warren E. Burger: Well, let us say that the Senator simply says he wants to come on the Base and discuss the problem. You do not know what he is going to say after the gets there?
David Kairys: Well, I think -- I think soldiers like other citizens should have all First Amendments Rights that they can that are not inconsistent with their status as soldier. This Court has said that as to prisoners and that if there is a political controversy going on in the country or in a particular area about an issue that people should be able to talk to them and if they should be able receive that information --
Warren E. Burger: Well then -- now you are receding from your suggestion that if this source seeds of disobedience that it could be precluded?
David Kairys: I am saying if you urge insubordination, I could see situations where if you urge violation of orders that that could -- that that is no longer protected.
Warren E. Burger: What do you do? Stop the Senator in the middle of his speech?
David Kairys: Yes, that is -- I thought -- there is tradition in the history, if they mean anything is that that is what you do that you do not impose a prior restrain on speech.
Warren E. Burger: Well, it is not a prior restrain, if you stop him in the middle, prior restrain to the second half (Voice Overlap).
David Kairys: I thought you meant by the middle (Voice Overlap) he was already doing it.
Warren E. Burger: Yes, already doing it.
David Kairys: Well, at the point he already does it then you stop him.
Warren E. Burger: I see. You do not think that is prior restraint?
David Kairys: No, if he is already committed a crime, no.
Speaker: Mr. Kairys, I think you said earlier that the Commander could close a Base to all citizens?
David Kairys: Yes.
Speaker: Well, suppose he were -- let us say commencing October the first 1976 through November the 7th, 1976, the Base shall we closed to all citizens?
David Kairys: Well, effectively banning the time when any candidate could come out, well I think it --
Speaker: I think at Presidential Elections --
David Kairys: I would subject that to the same analysis if there is no substantial --
Speaker: Now this is -- this is a bar to any civilians for any purpose coming (Voice Overlap)
David Kairys: I understand. Well, if there is no substantial concrete Military interest in this unrelated to suppression of freedom of expression which and I think this would have a presumption that is related to some -- to me it would, that is related to suppression of expression and if there is no such interest then it would not be valid. I would subject it to the repeated analysis that this Court has handed down. I think it is important in considering all the claims of the Military in this case that they have not really pointed to any specific interest and it is pretty evident from one quote, a very brief quote from their brief that I just like to read, this is at page 39. We do not in anyway deprecate the value of freedom of speech by observing that certain candidates might express fuse that could undermine the morale, obedience and discipline of members of the Military and there is an awful lot of mights and coulds and the whole thing is framed as an observation.
William H. Rehnquist: What about the argument that I understood the Solicitor General to make yet, you can agree with it or disagree with it, but I thought that was the Government’s position that on Base Military personnel in uniform are to be divorced from active political participation?
David Kairys: The question of whether they could come to one of these rallies which first of all are held on off duty times, the rally in this case was held on a Saturday, an off-duty time, the question of whether they can come in uniform or not which I would probably agree with them on is a separate question.
William H. Rehnquist: Well, then you agree that there is -- that that is a legitimate principle I take it, if you are just arguing about whether it is applicable here?
David Kairys: I wholly agree with neutrality of the Military as a principle. I think that is extremely important, but I do not think they are neutral when they allow one branch, one group of candidates, the major party candidates to have this total barrage of access with one form of speech, the mass media and then deny something which I believe that all civilians are entitled to on the Base since it is opened and there is no contravening Military interest. They denied the right to face to face speech.
William H. Rehnquist: But their are answer to that is that it is one thing for an individual perhaps in fatigues, perhaps in uniform to go into the PX, buy a copy of Newsweek or Time and go back to his bunk or back to the day room and read what it has to say and quite another thing to get an assemblage of two or three thousand people in the parking lot and have a political address?
David Kairys: Well, first of all Colonel Olsen indicated that he saw no problem with people talking about the campaign. It happened all the time. And further -- I mean they stand around and they do talk about the campaign, groups of soldiers. They also allow events that have 5,000 civilians. They allow a rock concert out on a ball field with 5,000 people --
William H. Rehnquist: But that would have nothing to do with the divorce between Military in uniform and political?
David Kairys: That is correct, but it certainly indicates that you cannot say as the Court of Appeals says you cannot really find per se the possibility of disruption and then I think that is a separated issue, but the neutrality issue it seems to me is a feigned neutrality as the Court of Appeals said. They are maintaining a neutrality as to one form of speech when the real question in terms of neutrality is overall neutrality. I mean how can they seriously say that the Military is being neutral at Fort Dix when this ad at page E3 of appendix 2, this ad urging the re-election of President Nixon at the time of the hearing in this case was in Army Times, the most predominant newspaper on the Base.
William H. Rehnquist: Their argument I take it is that their neutrality requires that the type of active political rally not be held on the Military Base and that nobody of any party can hold that kind. They usually -- it is not --
David Kairys: That is not neutrality.
William H. Rehnquist: Well, it is a form of neutrality. You are saying that because your man does not have access to the other materials that come on in quite a different way, it is not neutrality but it is really, but it is just not neutrality that is not completely fair to your man?
David Kairys: No, irregardless of whether they could afford it or not, it is simply is not neutrality. Neutrality to me should refer to all forms of speech. If you are going to let one group candidates get exposure, to me exposure is the issue. If one group can get exposure on the Base by one form, then you are no longer neutral. Neutrality is out of the question and the question becomes, is it appropriate or is there any reason why should not allow other candidates to use this other form.
William H. Rehnquist: Well, but the Court has always treated differently rallies and parades which are subject to fairly rigorous time, place restriction?
David Kairys: That is right.
William H. Rehnquist: Certainly the State could impose the same kind of restrictions on selling magazines on a newsstand?
David Kairys: No, I am not asking that. I am saying that if civilians generally have the right to exercise First Amendment Rights on the Base which I believe they do because the Base is open and because there is no specific concrete Military interest that competes with it. These are open areas, street, sidewalks and parks. There is no nearby Courthouse, there is no nearby Jail or anything like that. That once civilians generally have the right to exercise that right and once you allow other parties, the majority parties to come on in some form to get exposure, there is no reason not to allow these candidates to exercise that face to face right. And no reason based in neutrality or disruption or anything else. I think if I can get back just to the -- briefly to the --
Byron R. White: All you really want to do is reach the soldiers I take it and --
David Kairys: That is correct.
Byron R. White: -- by coming on the Base at least you really are saying we want to come in and appeal the soldiers as soldiers?
David Kairys: They do.
Byron R. White: Yes and that is one thing that the other candidates that have access to the media are not doing?
David Kairys: Well, if you read --
Byron R. White: And they are making the general appeal?
David Kairys: Well, if you read President Nixon’s ad I think it is pretty well pitched towards soldiers. If you read this ad, page E3, appendix 2.
Byron R. White: Are you talking about the press then?
David Kairys: That is co -- well, I am saying that they use --
Byron R. White: You are talking about the press and I suppose that your candidate can buy an ad in the papers that are distributed on the post. You cannot say that -- that -- you cannot say you cannot afford that?
Thurgood Marshall: (Voice Overlap) in this case, you can mail it?
Byron R. White: You are talking about the poor candidate is not being able use the media the --
David Kairys: They cannot buy an ad in Army Times. That is censors (Voice Overlap).
Byron R. White: They could buy it in newspapers though?
David Kairys: Yes, they can buy an in the newspaper.
Thurgood Marshall: And you can mail this leaflet?
Byron R. White: Yes. You can mail all the leaflets.
Thurgood Marshall: You can mail all the leaflets?
David Kairys: Well, that is an ex -- there is 22,000 soldiers.
Thurgood Marshall: Well, what you -- you are arguing equal protection there?
David Kairys: Yes we do. The question is even if you have some alternative that I believe is not sufficiently affected, but even of you have some alternative what is the Government interest? It seems to me the burden should be there, what is the Government interest in not allowing them do the face to face speech?
Byron R. White: Well this -- you have not met the Government on its own ground yet. You talk this discrimination and non-neutrality, but you have not really faced up to whether or not there is anything of substance to the Government’s position if there is some consistency between overt political activity in uniform on a Base and being a soldier?
David Kairys: I think the uniform issue is a separate issue. If they want to prohibit any Military personnel from viewing any political event in uniform as they have done then there is a question that there could be a question. I do not think there is to whether that is valid or not, but that is a separate issue is to whether they could come on and if they stand there and they read that ad in uniform, I mean, any one can can on newspaper say, that Army Times which is sanctioned by the post and is censored by the post authorities, a proven ad like that --
Byron R. White: I suppose that -- I suppose you would -- would you say that you had a case on with respect to this Fort if adjacent to the Military property there was a stadium that was at free of charge you can hold meetings in, based on private property and any Military man was completely free to come to that if he wanted to as long as -- and he --
David Kairys: But they are not. Most of them were restricted to the Base. That is in the testimony of the Provost Marshal.
Warren E. Burger: Then you want to tap the audience, is that it?
David Kairys: Well, they are hardly captive, it is 55 square miles. I mean they can choose to come to the rally or not.
Warren E. Burger: They are not spread equally over the 55 square miles (Voice Overlap).
David Kairys: Well, this area that this rally was held was on a parking lot adjacent to it a Movie Theater. There are six different movie theaters on the Base. It was one of six Movie Theaters. It was called theater five. Now, there is certainly no aspect of a captive audience, this is an outside area, it is literally 55 square miles and no one had to attend this.
William H. Rehnquist: Well, but do not you have some of the same problems you had with the Hatch Act if you know your Colonel is going and your Major is going and they are supporting this candidate, there is a certain compulsion on you to show up to, is not it, particularly if they mention it to you?
David Kairys: I do not see that that -- no. I do not any more than there is a compulsion say to back President Nixon.
William H. Rehnquist: Well, but do not you think if the Government can ban that sort of compulsion in the Hatch Act for civil servants that can follow this procedure here?
David Kairys: Well, I do not consider going to a rally and hearing someone speak participation and even the Military’s own Regulation itself says that common sense shall apply to that Regulation. I do not consider that participation. I would just like to come back to that quote briefly if I can. Is my time up?
Warren E. Burger: No, that is your five minutes.
David Kairys: That is my five minutes, okay.
Warren E. Burger: You have about four minutes left.
David Kairys: I think the case Hinges in addition to this neutrality question on whether civilians generally have the right to exercise First Amendment rights on these portions to the Base and that again I would subject to the Court’s usual analysis and an observation that views might be expressed that could undermine, it is hardly sufficient as a Military -- as a Government interest to override interest in freedom of speech. And I think that if the Court allows that kind of observation to be held sufficient to impose a prior restraint, that is a serious problem and they have done exactly within the quote, they said they did not want to do it, they deprecated the value of freedom of speech. I just like to briefly address then the second issue concerning the prior restraint on leaflets. It seems to me that if the Court agrees that civilians do have the right to exercise First Amendment Rights on these areas because they are essentially public street, sidewalks and parks and because there is no Military interest to do otherwise, then the Carl Area Right of being free of a prior restraint as to content, it seems to me would follow and the petitioners in their brief actually concede that. So if the Court accepts that analysis it seems that there is no problem as to the second point. Thank you.
Warren E. Burger: You are welcome.
Speaker: (Inaudible)
David Kairys: Well, it defines them as in a negative way, it defines them as any area not marked restricted and they are prominently marked and then there is testimony that does define them. The barracks are restricted and so no one went near them and we accepted their definition of restrict, we never challenge anything they said in that regard and we never sought to go inside of any building.
Speaker: (Inaudible)
David Kairys: That is correct. The barracks were though.
Speaker: (Inaudible) in the residential areas?
David Kairys: The residential areas -- at least the way I consider them are where -- there is a whole row of houses, almost like a settlement where families live. The Barracks are where the troops are billeted in.
Speaker: The married soldiers perhaps live in the residential areas and the unmarried ones --
David Kairys: And probably the officers.
Speaker: Do you think the record is clear as to the areas because the injunction imposes severe risk on the --
David Kairys: That was limited as the result of a -- the order as to the specific rally limited the areas in a more defined way and it is said where leaf letters could go and where they could not and that is exactly where the rally would be and that was arrived at by negotiation between counsel. Thank you.
Warren E. Burger: Mr. Solicitor General we will let you complete your argument before we recess for lunch.
Robert H. Bork: Mr. Chief Justice Burger may I please the Court. There is just a few matters I would like to clear up. There has been repeated reference to the Army Times which appears in the second part of the exhibit, plaintiff's exhibit on E3 and the censorship by the Base or something of that sort, I think it should be made perfectly clear that the Army Times is a civilian publication; it is not published by the Army. The Army has no control over it. That ad could appear in the New York Times and come on the Base as well. As to the other points I wish to touch upon, this reference to the fact that the candidates cannot get at the soldiers because they are confined to the Base. The truth is only the trainees are confined to the Base for the first four weeks of their training which means that there are three weekends total denied to respondents in their efforts to reach these gentleman off the Base. Mr. Justice White mentioned the fact that coming on to the Base was an attempt to appeal to soldiers as soldiers and I think that is crucial, I would refer the Court to the first volume of the appendix in several places, but particularly at page 178 where Mr. Hardy testifies, the reason he wants to get back on to leaflet, it says there are troops in both Thailand and the Gulf of Tonkin which could be easily reintroduced into some act of role there. So anti-war activity among GIs is still in my opinion and in the opinion of resistance, an important aspect of our work and something we need to continue. There is no doubt that this leaf letting in this speech was aimed at these people not because they were on enclave of citizens. They could not reach, but because they were soldiers whom they wish to influence in their attitudes towards the war. Now, I suppose I should say something about Flower since it has been discussed repeatedly. The picture, E2 which we have been asked to look at is entirely different from the picture I recall seeing of a New Braunfels Avenue. You can see an obvious line where the town stops. There is an ordinary civilian community with cleaners and laundries and pizza houses and so forth there and suddenly all of that community activity stops and you are clearly on a Military Base. So it is not indistinguishable from the community. It is -- there is a clear line. Here Mr. Kairys says quite correctly that there was no abandonment in this case. Military jurisdiction over even traffic violations is complete and any case goes to U.S. Magistrate not necessary to U.S. Court.
Warren E. Burger: Mr. Solicitor General, what difference would it make if the topography and the color of the highway pavement and the quality of the sidewalks and the kinds of houses were exactly the same before you got on the Base and after you have got there? (Voice Overlap) just the difference that soldiers exclusively occupy the Base?
Robert H. Bork: I do not think it will make any difference Mr. Chief Justice because all of the policy reasons would apply and that is why I do not believe in this expanded reading regarding of the Flower case because if that is what Flower really meant then it really is a trivial point. I cannot believe that it is. It becomes a trivial point in that all the Military need to spend the additional money to put a sentry at the post and say show me your pass or get a pass. What that has to do with political campaign rallies on the Base, I do not know. I do not see the nexus between spending the money to close the Base in that sense and the First Amendment question and the separation of Military and --
Warren E. Burger: Indeed some Bases do have a sentry box there and they have a fence around them, but I take it from the arguments made that the same arguments would be advanced if there was a ten foot wall and two sentries at the gate?
Robert H. Bork: I take it so, because if the point is that the Base Commander much used his troops to compensate Doctor Spock or other minor party candidates whose inability to get a good a news rating then I think it would not matter whether there is a wall or whether the Base is open and I would point once more to Lloyd Corporation against Tanner and indeed the Grayned against the City of Rockford which said that even a public sidewalk could be denied for use for some purposes because of the interest in running schools. I think the interest here in the separation of the Military and the political is clearly of that caliber and furthermore it is not a public sidewalk, it is Military Base which by tradition in this country has been closed to this kind of activity.
Warren E. Burger: Thank you gentlemen. The case is submitted.