Warren E. Burger: We will hear arguments next in 72-1713, Secretary of the Navy against Avrech. Mr. Solicitor General you may proceed whenever you’re ready.
Robert H. Bork: Mr. Chief Justice and may it please the Court. This case turns on the constitutionality of Article 134 of the Uniform Code of Military Justice. That article punishes among other things, all disorders and neglects of the prejudice of good order and discipline in the Armed Forces. In all conduct of a nature to bring this credit upon the Armed Forces. The article entered our military jurisprudence that was enacted by the Congress in 1775 and has been reenacted repeatedly since then by Congress. The first reenactment occurring in 1806, apparently the man who wrote the constitution had no doubt of its compatibility with this article. It’s been in effect as an organic part of our military law now for just under 200 years and in our history millions and tons of millions of service man and woman have served under this Article. It is a settled -- a piece of our jurisprudence, I suppose as there is at stake, in the issue of the constitutionality of this Article, of course are several fundamental values of our society. Appellee here urges the values of fair warning in due process and free speech. I will attempt to show that Article 134 is fully compatible with those values and does not threaten. But must also be recognized, however, is that the judicial destruction of Article 134 would jeopardize two other important values in our society. The first of course is the effect of those American Armed Forces upon which the safety of the nation rests. The second, however, is a value which I think is not sufficiently recognized. And that is the importance of Article 134 in confining the role of the military in our national political processes and decisions. Should speech of the sort involved in this case and in Captain Levy’s case which we argue next, come to be permitted in the military? There would be real danger that our military would become so unreliable as to frustrate civilian policy to be unable to carry out civilian policy. But worst than that, it seems to me that there might be a danger of a politicized military establishment with all the dangers that prospect poses for the principle of civilian control of the military. This speech in these cases in opposition to warnings and if its permissible for a PFC and a captain to make these publications or attempt these publications and make these speeches under these circumstances, then I do not see why it will not be permissible equally for general officers and admirals to address their troops about their political views and about their disagreement with the President of United States and about their disagreement with warnings. We are not dealing with small issues in this case. The appellee Mark Avrech brought this action in the District Court for the District of Columbia to expunge his court-martial conviction which was under Article 80 which punishes attempts, and the attempt was to violate Article 134 of the Uniform Code of Military Justice. The District Court dismissed his suit but the Court of Appeals reversed holding that Article 134 as unconstitutionally vague. The conduct underlying this court-martial conviction occurred at the Marble Mountain Air Facility in Da Nang in Vietnam where PFC Avrech was on active of duty with the Marine Corps in a combat zone. While on night duty, in the group supply officers at his base, Avrech typed of a stencil of a statement entitled “The Truth” and marked volume 1, number 1. This statement is set out in full at pages 4 and 5 of the Government’s brief. And he intended to circulate it. He said only to eight or 10 of his friends in the Marine Corps. The statement is the denunciation of the United States military rule in Vietnam and it contained such sentences as these. “Why should we go out and fight there in the South Vietnamese? Why should we go out and fight with their battles while they sit home and complain about communist aggression? What are we cannon fodder or human beings?” Going on, “The United States has no business over here. Are your opinions worth risking a court-martial? We must strive for peace and if not peace then a complete U.S. withdrawal. We have been sitting ducks for too long.” The statement is more extensive than that and that is in tone and in substance a denunciation as I say in United States warnings. I think that there is no doubt that had PFC Avrech succeeded in publishing that statement, the document would tend to create disaffection among the troops and it would certainly create lowered morale among troops in a combat zone.
Warren E. Burger: Well I suppose it might reasonably said that it would stimulate some debate on the subject when you have one group of soldiers one way and -- or marines on one side and another group on another side?
Robert H. Bork: It certainly would stimulate debate. I think that is certainly fair Mr. Chief Justice. In addition to that apparently although he was not charged but the record in the case the summary of the record in the case, the original record of transcript has been destroyed, indicates that PFC Avrech constantly stimulated debate about -- among his fellows, about the wrongness of the United States warnings.
Warren E. Burger: We’ll resume there at 1 o’clock. [Noon Recess] Mr. Solicitor General, you may proceed.
Robert H. Bork: Mr. Chief Justice, and may it please the Court. We were discussing at the lunch break the facts of this case having typed out on a stencil his denunciation of the warnings in United States for circulation to the troops and it was entitled Volume 1 Part 1 because PFC Avrech testified that he had intended to publish other such statements as his thinking developed along this lines. Having typed up this first statement, Avrech attempted to gain access to the supply office mimeograph machine in order to run the statement off. And in the process he showed in to a corporal who controlled the machine, the corporal took the statement and gave it to a superior and as a result, Avrech was tried before a special court-martial on charges of violating Articles 134 and 80. The court martial acquitted him on the Article 134 charge but convicted him under Article 80 which as I say punishes attempts to commit offenses. And here the specification, the charge under Article 80 charged an attempt to commit an offense under Article 134 namely an attempt to publish to members of the Armed Forces with design to promote disloyalty and disaffection among the troops, the statement disloyal to United States. This charge required a finding of specific intent and was modeled on a standard form, contained in the manual for court-martial. Upon conviction, Avrech was reduced in rank from private first class to private, sentenced to forfeiture of three months’ pay, and sentenced to one month hard labor and confinement. The commanding officer suspended the confinement in all of the respects to the regular review process the conviction and the sentence were affirmed. So that he received a rather mild sentence but did not put any bad conduct discharge in his record and did not confine him in any way. The appellee challenged this conviction under one Fifth Amendment doctrine void for vagueness and two aspects of First Amendment doctrine overbreadth and the claim that the statement he attempted to issue was protected speech. I think none of these contentions can withstand examination. I would like to examine the vagueness point first. I think it’s essential to realize that there is no doubt that a parallel statute applied to the civilian population would be unconstitutionally vague. Nobody would know in a free and permissive society what was conceivably meant by something like disorders and neglects to the prejudice of social order. The difference of course is that a civilian society is basically a free society; it is not and furthermore it has no single mission unlike the military. The military society is an ordered society, it has a mission, it has a structure. And for that reason, one knows what tends to detract from that mission, what tends to break down discipline and good order. Now counsel for the appellee argued this case as if it did involve a statute applied to the civilian population. And they refused I think to face the only issue, the real issue which is the military context in which this article exists. Indeed in which this article has been -- which this article has been an organic part for 200 years. And that is what makes all the difference in this case. That context and the limiting constructions given by the United States Court of Military Appeals, give Article 134 the definiteness it requires.
William O. Douglas: What did the Court of Appeals say about that argument of yours?
Robert H. Bork: The Court of Appeals thought that the military context did not give it sufficient definiteness Mr. Justice Douglas but I think I can demonstrate that it does. One, it seems to me extremely telling point in this case is that counsel for the appellee argued this case by a series of hypothetic. Although this Article has been used for 200 years, they do not cite a single case of injustice done by the military under this Article. They do not cite a single case in which a convicted serviceman could not -- in which a convicted serviceman could have entertained any doubt that what he did was prejudicial to good order and discipline and that what he did was wrong and illegal so far as a military society was concerned. Whatever superficial plausibility appellee's challenge has is gained only by ignoring the meaning given by military function in context by ignoring the actual operation of the military system and arguing instead from wholly imaginary cases. The Court of Military Appeals has repeatedly said at this Article that it reaches only misconduct and disorders which are directly and probably prejudicial to good order and discipline so that the construction placed upon by the Court of Military Appeals and followed by the Courts-Martial is that the tendency to injure good order and discipline must be direct and it must be obvious or reasonable manner. In addition to that of course, the Manual for Courts-Martial which is in the appendix to our brief discuses at page 7 (a) this Article and the specific charge of disloyal speech. Now, knowledge of what conduct directly --
Thurgood Marshall: Solicitor, the average enlisted men is not familiar with the manual at all, isn’t it?
Robert H. Bork: Mr. Justice Marshall, I think that’s quite true. The average enlisted man is not although more enlisted men than one might think are. Particularly enlisted man who recognize themselves as coming into -- brush possibly with this --
Thurgood Marshall: And I wonder how many Manuals of Courts-Martial they have in Vietnam altogether?
Robert H. Bork: I do not know that. I do know though Mr. Justice Marshall that the Articles of War -- the Articles of --
Thurgood Marshall: I am just wondering if you need that.
Robert H. Bork: Pardon me?
Thurgood Marshall: I am just wondering if you need that.
Robert H. Bork: Well I don’t need it but I think I would like to use it if I may.[Laughter Attempt] The Articles are explained to the troops as part of their basic training. The manual is available and I would suggest that the manual is really as available to an enlisted man in the Marine Corps as -- is a criminal code of Illinois say to the man who really gets under pressure.
Thurgood Marshall: The Manual isn't explained to him.
Robert H. Bork: The manual is explained and the articles are explained.
Thurgood Marshall: Although he doesn’t read the manual himself.
Robert H. Bork: That’s correct. But aside from history and tradition, it seems to me that the most important and obvious facts about this case is that the military does comprise a specialized community, it has a well understood and a specialized function which is something a civilian community does not have. And the need for order and discipline in that specialized community is known throughout our culture and it is obvious to everyone. It is also obvious what kinds of behavior tend to break that down. Now, at this point I would like to say that the military use of this kind of penal statute is by no means unique in our law. This is not confined to military law of any means. Court’s frequently apply standards of this sort when they are given content by an understood function and although on the face of the words they may seem vague when they are in context they are not vague. And I think this is true in a variety of areas and I would like to mention a few. In the first place and most obviously the Sherman Act is vague, criminal proscriptions against things like combinations in restraint of trade were upheld in Nash against United States largely because the Justice Holmes said because of the antecedent common law among other things. The antecedent common law was really not a great deal of help, but in the -- he explained further in International Harvester against Kentucky that criminal law is not unconstitutional merely because it throws upon men the risk of rightly estimating a matter of degree. And here the matter of degree is what is an undue restraint of trade. Between the obviously illegal and the plainly lawful there’s a gradual approach and that the complexity of life makes it impossible to draw a line in advance without an artificial simplification that would be unjust. The conditions are as permanent as anything human and conditions there of course were the conditions of trade and economics. Here the conditions are permission and understood function of the military. And the great body of precedents on the civil side coupled with familiar practice make it comparatively easy for common sense to keep to what's safe. That passage, I think would only superficial alterations could have been written in defense of Article 134 and Article 134 if I may say so is if anything clear than the Sherman Act was before that we received construction.
Potter Stewart: Mr. Solicitor General you said earlier that your brother is not appointed to any case where I don’t know just how you put it. I think where there has been --
Robert H. Bork: [Voice Overlap] Mr. Justice.
Potter Stewart: Or I think you said whether there wasn’t fair notice more or less, but I am looking at these examples in the appendix, the appellee’s brief, at least some of them seem to me to be arguably while they are all of course conduct falling below what we like to think of as ideal. Some of them have really nothing to do with the good order and discipline of the Armed Forces, do they? I mean can a telephone services from a telephone company with intent to defraud for example or negligent failure to maintain sufficient bank funds?
Robert H. Bork: May I speak to those --
Potter Stewart: Or even mistreatment of your members of your family for instance or refusing to testify at a corners in quest?
Robert H. Bork: I think that list of the appendix Mr. Justice Stewart requires use for the great deal of caution. If you will look at those cases and I am sorry to say that I seem to have mislaid my analysis of them, a number of them for example are cases in which it was held that the behavior cited there was not a violation of Article 134. Those are merely cases when somebody was charged. And in addition to that, for example the --
Potter Stewart: You could argue that both ways and merely I would, as to the validity of this.
Robert H. Bork: Well, I think not Mr. Justice Stewart because if one look at civilian jurisprudence and look at the number of cases in which people have been charged of murder and how many of them were acquitted, one would not say.
Potter Stewart: Well but we know what murder is. It does involve killing another human being.
Robert H. Bork: Well, one of my examples here is man slaughter which is I suppose a negligent killing under the circumstances quite vague criminal proscription. But I wish to say about this for example not only are some of these examples in the appendix held not to be violations of Article 134. In addition, some of them are not described fully enough. For example, cheating at bingo, that was a gentleman who was calling out wrong numbers to rig the game with serviceman and then splitting the proceeds.
Potter Stewart: Well, I assume to some like that, that’s why I didn’t ask you about that.
Robert H. Bork: [Laughter Attempt] Jumping off a ship which sounds a little bit carefree, as a matter of fact was a man who made a large wages and he would do a back flip off an aircraft carrier in motion and cause the Navy to just send a story about the rescue. These are cases when you look at the four case, I don’t think there is any case here in which it is not -- in which a member is convicted, in which it is not clear that it should have known so that the conduct was to the prejudice of good order and discipline or that it was served as discrediting in the eyes of the civilian population in which he was dealing.
Potter Stewart: Of course, any deviation from ideal conduct by a man in uniform tends to bring discredit upon the uniform that he wears and the military organization, to which he belongs, isn’t that correct?
Robert H. Bork: It is certainly is correct, Your Honor but any deviation from ideal conduct is not charged under this Article. It has to be a serious direct obvious impact upon, prejudicial impact upon good order and discipline. Anyone who has lived among troops knows that if deviations from ideal conduct were prosecuted, we would have nothing to Courts-Martial. It is not the way this Article is used and I think some attention has to be given the way this Article is used and the way it is controlled by the Court of Military Appeals, and indeed by the reviewing legal steps that go over everyone of this convictions. But I have mentioned the vagueness of the Sherman Act which was saved by its context and by our knowledge of economics, the criminal offense of man slaughter, we rely upon the common understanding of man as to what is dangerously negligent behavior in a vast multiplicity of examples that would be beyond the skill of a legislative craftsman to reach. Now if I turn to examples involving speech, I might mention that courts often permit indefinite wording if context gives the wording meaning and a parallel example it seems to me is Grayned against City of Rockford. And this Court there upheld a conviction under anti-noise ordinance that published the willful making of noise or diversion that took disturbs or tends to disturb the peace or good order of schools. Interpreting it to apply to actual or imminent interference with peace or good order and relying upon the school of context as giving meaning to disturbance as impact on the normal activities of the school. The context there gave fair notice and I think the context of the military gives fair notice to a statute, to an article which is written very much like the anti-noise ordinance was in Grayned against City of Rockford. I might also suggest that courts regularly apply penalties for contempt of court. That would seem to be a fairly vague standard and it does inhibit speech quite directly but it is made sufficiently definite by the common understanding of the function of a courtroom. The function of the legal system and what that function requires in the way of good order and discipline by the part of attorneys who take argument in the courtroom. And finally, I would like to cite as very close to this case the clear and present danger test. That is a test that is read into criminal statutes on speech about over-throw of the government or violence, the advocacy of violence. And hence it becomes a warning, the clear and present danger test is a warning that must be intelligible to those the law threatens. And in Dennis against United States, this Court explained those words as follows. It said that Chief Judge Learned Hand writing for the majority below interpreted the phrase as follows. “In each case, courts must ask whether the gravity of the evil discounted by its improbability justify such invasion of free speech as is necessary to avoid the danger.” Then this Court said, “We adopt this statement of the rule as articulated by Chief Judge Hand, is as succinct and inclusive as any other we might device at this time.” It takes into consideration those factors which we deem relevant and relates their significances, more we cannot expect from words. It seems to me that Article 134 is certainly no vaguer than that standard. I agree that more we cannot expect from words, I think more we cannot expect from words in the context to which 134 is applied. I think it does an equally good job of relating the factors and their significances. And there is one other parallel I’d like to draw that between Article 134 and Hatch Act. This Court was upheld the Hatch Act last term in the Civil Service Commission against National Association of Letter Carriers. And at this point, I’m discussing not so much vagueness as overbreadth and the legitimate interest of government. This Court held in the civilian context that the legitimate interest of government in good government and in a fair political process was enough to uphold the Hatch Act’s restrictions upon government employee’s political activities against First Amendment claims. So here I think the legitimate interest in an effective military and in a military that does not dictate civilian policy either by becoming ineffective so that it cannot carry outlaws, or by becoming so politicized that it refuses to carry out the policy made by civilians, justifies Article 134 has very limited inhibitions on speech just as the Hatch Act was justified for parallel reasons. In this case, I think it’s obvious that the publication average would have published, would have tended to spread disaffection among troops in the combat zone and that cannot be tolerated by any effective military organization. There may have been armies that tolerated that kind of behavior but they were armies on the verge of dissolution and not armies that win wars. And aside from the tendency to disaffect others, statements such as these even if they convince no one of a deleterious effect upon morale because they signaled to others that at least one man in the unit is not to be relied upon. It is already disaffected and it maybe an unreliable and dangerous or difficult situation which I think is surely a factor, the military entitled to take into account. It is apparent, I think that the Article as applied in this case was not unduly vague nor does it violate Avrech’s First Amendment rights since those rights must vary according to the time, place and circumstance. And speech of this sort in a combat zone can hardly be protected. It might be different in other military circumstances. It might be different if you were in the states in civilian uniform talking to man off base. In a combat zone it cannot be protected speech I would not think.
William O. Douglas: Doesn’t the Court of Military Appeals apply the standards that this Court has applied to civil procedures as respect to vagueness?
Robert H. Bork: I think it does Mr. Justice Douglas but it recognizes that each of these standards has a slightly different application depending upon the context and the circumstances in which it must be applied.
William O. Douglas: That would be true in the civilian branch along too.
Robert H. Bork: That is true.
Potter Stewart: And the Court of Military Appeals has explicitly upheld the validity of Article 134, has it not?
Robert H. Bork: They have indeed.
Potter Stewart: How recently?
Robert H. Bork: The Frantz, I think it is upheld at Mr. Justice Stewart within the last year or two. It’s in the -- I can get the citation for you.
Potter Stewart: In any event quite recently.
Robert H. Bork: Quite recently.
William O. Douglas: Is that the Frantz case?
Robert H. Bork: I believe it was the Frantz case.
William O. Douglas: Well I have it here and I will give to Justice Stewart.
Speaker: I take that any major argument is that that because the Article has been construed so often and has been held to -- it includes so many things that the very least it should not be invalidated on its face.
Robert H. Bork: Well, I think that is an argument that I make and I say it should not be invalidated on its face again for two other reasons. Not just because it has been construed so often. One is because this Article has its primary impingement upon conduct which is not speech.
Speaker: And you say it should be declared invalid on its face in connection with any crime that should be tested before vagueness has applied.
Robert H. Bork: That is correct. I think as I say for one thing in the military so many aspects of human conduct are necessarily regulated that are left completely unregulated in civilian life. It would be I think impossible to write a specific and definite code that covered all of the things that might prejudice good order and discipline from speech to non-speech. That being the case to strike down a statute like this on its face I think makes no particular sense. You would have to strike down whatever replaced it on its face because one would always be left with the need of some form of general article.
Byron R. White: Wherever it’s been construed and applied in the conviction upheld to that extent meaning has been given to these --
Robert H. Bork: That is correct.
Byron R. White: -- the Article and any identical crime. Any person committing an identical crime would know in advance.
Robert H. Bork: That is correct Mr. Justice White but I would like to say that there are in addition areas in which it has not yet been applied which is still valid.
Byron R. White: Like this one.
Potter Stewart: Why would you always be left for the need of some general article? I understand from reading these briefs over the weekend but I don’t have in mind, I think it was a former high ranking military officer in the legal department who has written an article or given a speech saying to the effect that we don’t, the military doesn’t need this.
Robert H. Bork: He did give that speech Mr. Justice Stewart. I understand that I am informed that in the heated debate which fall on this publication of that article that he be candid slightly.
Potter Stewart: Was he prosecuted under 134?[Laughter]
Robert H. Bork: That had not occurred to me.
Potter Stewart: But in all seriousness, why do you say then there is -- the military needs this?
Robert H. Bork: They need it --
Potter Stewart: I mean we don’t need it as in civilian society.
Robert H. Bork: That’s because civilian society --
Potter Stewart: As you say it’s diverse and permissive and free and the military is an authoritarian organization with a specific mission. I understand this but why does that lead to the conclusion that you need to catch all thing like this. What’s wrong with spelling out what you don’t want soldiers and sailors to do?
Robert H. Bork: Well, let me say this Mr. Justice Stewart. Addressing merely the speech area, I think that there are numbers of ways in which servicemen can find prejudice discipline in non-speech ways are limitless but let’s adjust just the speech area which is only a minor part of this article. One ranges from the serviceman speaking or discussing with two friends off base over a drink in somebody’s living room out of uniform. The aims of a war in a discursive fashion all the way to the wide variety of circumstances to the serviceman in a combat zone perhaps in actions denouncing what they are doing and urging others to pull out of the action. There are so many gradations and variations and alterations in circumstances between there that I cannot imagine that one could draft specific articles that did not look like the code, the Internal Revenue Code and even then we know that the internal revenue code has its areas of vagueness.
Thurgood Marshall: But Mr. Solicitor on this one way we’d be urging him not to fight wouldn’t it be violating conduct in the presence of the enemy?
Robert H. Bork: Or it would.
Thurgood Marshall: Such as specific one.
Robert H. Bork: It certainly would Mr. Justice Marshall.
Thurgood Marshall: And on all of those you mentioned specific ones that could be covered by specific article.
Robert H. Bork: Well, I think they are too many. I think there are too many variations and circumstances --
Thurgood Marshall: Well, in this particular case if the commanding officer had said, “Private, do not distribute that” and he distributed it, he would be charged with what? Disobeying an order.
Robert H. Bork: Article 90 that is quite true.
Thurgood Marshall: So he wouldn’t have to go to this indefinite one here.
Robert H. Bork: No that’s quite correct but this man --
Thurgood Marshall: In the first place he goes said don’t use that mimeograph machine that would be the end of it.
Robert H. Bork: Well, I hardly think it’s practical Mr. Justice Marshall for the commanding officer to go about catching people. Investigating people to see what they were likely to publish and then issuing an order not to do so.
Thurgood Marshall: I understood that this was given to the commanding officer. This piece of paper.
Robert H. Bork: That is correct.
Thurgood Marshall: At that stage the commanding officer could have said one or two things. This can’t be mimeograph, it can’t be distributed or he could order them not to distribute it and that would be the end of it.
Robert H. Bork: That is correct.
Thurgood Marshall: But instead of that, you bring him in on this charge.
Robert H. Bork: But that would be --
Thurgood Marshall: And that’s why it seems to me that the availability of this is if you don’t want to go to the other ones, well you always get this one. Well doesn’t it look to you like the one where if you can’t get to anything else, I got you on this one.[Laughter]
Robert H. Bork: No. No sir, Mr. Justice Marshall, it does not look to me like that. It looks to me like unnecessarily general statement because it is impossible in any length sort of a tax code which would not give notice to anybody in the enlisted level to convey all of the instances in which the military may object to behavior being obviously prejudicial to good order and discipline. The argument you will make that the commander could have issued a direct order is quite true but that would be an argument that says you may never punish for any attempt to do anything because when the attempt is discovered, the commanding officer may always issue an order not to do it. And then if it’s done, he may be punished for direct disobedience of a lawful order of a superior commissioned officer. But so long as the attempt article -- Article 80 has any validity and I don’t think it is questioned for this that is valid then an attempt maybe punished although the commander could have overlooked it and just issued an order.
Warren E. Burger: Mr. Bowman.
Dorian Bowman: Mr. Chief Justice, and may it please the Court. The central question which this Court must face is the validity of Article 134 and in the course of my argument I will indicate why it is necessary to reach that issue without regard to the specific conduct involved. Now at the very outset, the government argues that balance against the important -- admittedly important --
Speaker: Excuse me, Mr. Bowman you said we should reach it. How do you read what Justice Clark did in the Court of Appeals? Did he invalidate it on it?
Dorian Bowman: Yes he invalidated the first two clauses, Your Honor.
Speaker: I mean facially.
Dorian Bowman: Yes. I am sorry, facially. The government argues that balance against the admittedly valid, admittedly important values of fair warning and due process, one should balance the value of preventing politicizing the Armed Forces. I want to make clear that whether or not the Court upholds Article 134 has absolutely nothing to do with civilian control of the army. If there is particular conduct that the army is concerned about then it should punish it under clearly existing and well defined statute or pass a new statute. You cannot uphold an otherwise invalid statute just because you don’t like certain behavior.
Speaker: Excuse me Mr. Bowman, I wonder if I may interrupt you before you get fully launched on your argument on the merits. It struck me there might be a question here about the jurisdiction.
Dorian Bowman: Well --
Speaker: This isn’t a habeas corpus?
Dorian Bowman: No, it’s not.
Speaker: This was -- and wasn’t a case for back pay in the Court of Claims?
Dorian Bowman: No, if you are raising the collateral attack point Your Honor, this Court has long ago as Smith v. Whitney, Dynes v. Hoover, Swaim v. United States Raquel v. United States were all collateral attack cases. They were not habeas cases. Smith v. Whitney, Dynes v. Hoover were brought in the District Court, District of Columbia whose jurisdiction was the same as the District Court here when it was brought. Furthermore, in this Court’s case of Gusik v. Schneider in footnote 3 although it was a habeas case, the Court explicitly recognized in footnote 3 that collateral attacks could be brought by methods other than habeas and Mr. Justice Frankfurter in Burns v. Wilson concurring also recognized the fact that collateral attacks could be broad. I might say that the Government -- this issue has not been -- has not been briefed here, it wasn’t raised by the Government but I think what I have just said, this is sufficient answer to this Court has held that.
Potter Stewart: Collateral attack but I mean that could be --
Dorian Bowman: I am sorry, it was collateral attack to set aside a court-martial conviction on the same grounds. Dynes v. Hoover of course --
Potter Stewart: This was an action for declaratory judgment, isn’t it?
Dorian Bowman: Here? Yes.
Potter Stewart: This case. Filed in the District Court --
Dorian Bowman: It was filed in District Court, District of Columbia under -- well, we had jurisdiction under 11-521. Also and which did not I might add at that time require a $10,000.00 jurisdictional amount. We also filed under 1331 and alleged $10,000.00 was a controversy and that was never controverted and the question was never raised by the Government. Now the suggestion that that to this Court that in deciding --
William H. Rehnquist: Mr. Bowman.
Dorian Bowman: Yes.
William H. Rehnquist: Do those cases you cite certainly Dynes against Hoover and (Inaudible), there was no declaratory judgment statute and he did not uphold the brief?
Dorian Bowman: No.
William H. Rehnquist: They didn’t uphold the bringing of it by a declaratory judgment.
Dorian Bowman: No but they upheld -- the method of attempting to declare the court-martial conviction invalid, I admit that the form –
Speaker: What form in those cases?
Dorian Bowman: Smith v. Whitney was a writ of prohibition I believe brought in the District Court. Dynes V. Hoover was a -- I’m trying to remember was a collateral -- was a collateral -- I frankly don’t know.
Speaker: Generally speaking as we both know the military system of justice is quite unrelated to the civilian courts and generally the only place where there is an intersection of their jurisdiction is on writ of habeas corpus attacking the very jurisdiction of the military court, isn’t that correct? I mean other cases like the murdering wives cases and those --
Dorian Bowman: Yes well in -- but in Burns v. Wilson it was not attacking the jurisdiction of the court Your Honor nor was in Gusik v. Schneider and this Court in those cases did not state and certainly didn’t hold that habeas corpus was the only method by which one could bring a collateral attack against a court-martial jurisdiction. Our case goes to the very-- I mean obviously as the statute itself under which the court was operating.
William H. Rehnquist: Why didn’t your client bring a habeas?
Dorian Bowman: Excuse me, because our client -- he was sentenced to three months in prison as which the sentence was suspended. So he couldn’t have possibly brought habeas and --
Potter Stewart: There’s no custody here.
Dorian Bowman: Excuse me.
Potter Stewart: There was no custody.
Dorian Bowman: No. There was no custody and I might say that to limit it to habeas obviously would -- would in effect give the military control of who could bring suits and who could not because as in this case they could simply suspend the portion of the sentence, the person wouldn’t be in custody and you couldn’t bring suit. Now, the suggestion -- again I might say that that -- at that court should reach this issue. I don’t think it should reach it without full briefing because the issue was never raised below and hasn’t been -- hasn’t frankly been brief here. Now the suggestion to the court that in deciding -- that the government suggestion to the court in deciding the question of the validity of 134, this Court should not be misled into thinking that there is a conflict between the values which have led this Court to invalidate vague statutes and the values which are suggested by the Government. Now turning to Article 134, I think the significant thing about Article 134 is that it has always been recognized to be broad and indefinite and we have set forth in our brief all the historical evidence regarding the writers, British writers going back to the 1800s and the American military writers who have recognized that this Article was indefinite. And we have also presented testimony of congressional hearings in 1912, 1919, 1949 in which it was also recognized that the article was -- that the language of the article was indefinite and the government doesn’t --
William H. Rehnquist: Mr. Bowman, let me interrupt you once more and I will try not to do it again. If your client is out, why is there a case or controversy under the declaratory judgment?
Dorian Bowman: Because Your Honor he had a -- he received a bad conduct discharge Your Honor.
William H. Rehnquist: And is that reviewable by declaratory?
Dorian Bowman: Well he received a bad conduct discharge taking into effect two convictions because following this conviction Your Honor. He was convicted I believe for theft of a camera, Your Honor. So taking that, the military took both of them into account. It’s in the record, specifically to both into account and giving him the type of discharge which was given to him.
William H. Rehnquist: And is a declaratory judgment normal way of reviewing a bad conduct discharge?
Speaker: We are not exhausting administrative remedies anyway?
Dorian Bowman: I’ll be perfectly honest Your Honor, I really don’t know the answer to that.
Thurgood Marshall: Well if you win would that open up every bad misconduct charge to come in?
Dorian Bowman: No, I don’t think so, if we win -- well if we win on this perfectly frankly, I will go back and attempt to get to his type of discharge here.
Thurgood Marshall: I am not talking about you. I am talking about few other bad conduct discharges and few others.
Dorian Bowman: Well, I would think that --
Thurgood Marshall: Well, do you all have a course of action for declaratory judgment?
Dorian Bowman: Well, I am not prepared at this time to talk about the retroactivity of the decision Your Honor. It would only --
Speaker: Tell me about the jurisdiction, does your jury jurisdictional question.
Dorian Bowman: Well I think --
Potter Stewart: And anybody who has a bad conduct discharge walk into a federal district court and ask for declaratory judgment.
Dorian Bowman: Well, I think in terms of jurisdiction that I believe that the Court would then have to consider the type of situation which was I think in the O’Callahan situation as to whether or not the factors which were involved there should be applied to allow --
Speaker: He was deprived of the constitutional right, say he could.
Dorian Bowman: Well, he was -- first he is being deprived of constitutional right here too.
Speaker: I say if that was your case.
Dorian Bowman: I think so, again I frankly say it’s not then briefed, I am really not very familiar with the cases upon that this Court decided following O’Callahan v. Parker as to whether or not who could come in. I think that if this was the only -- I’m really not prepared to discuss that, Your Honor because frankly I am not really familiar with --
Thurgood Marshall: Well you might not be prepared but don’t we have to find out whether or not we have jurisdiction.
Dorian Bowman: Well, I think yes and I think if Your Honors decide the issue is one that merits full consideration. I think the party should be given a chance to brief it because it hasn’t been --
Thurgood Marshall: Jurisdiction is always open.
Dorian Bowman: Your Honor I realize this is the issue and I am only urging that --
Thurgood Marshall: And the two of you can give us jurisdiction by agreement.
Dorian Bowman: I fully agree with that but if the -- if this Court decides that the question of jurisdiction is really an important one in all collateral attack, I really think that it should be briefed fully and shouldn’t be done just on this record and frankly on cases that I am not absolutely and completely familiar with and that it hasn’t been raised below ever. Now the Government really doesn’t seriously challenge the historical evidence and really makes no effort to defend the language itself. And Grayned v. City of Rockford tells us that statutes such as this are vague and should be judged on their face. They are vague because they offend several important values. One, lack of fair warning. Two, lack of guidance to the enforcing authorities leaving them with uncontrolled discretion and thirdly where statutes affect to First Amendment rights, it must be narrowly drawn to save this from the vice of overbreadth. And a statute which violates anyone of these values should be struck down. Now the Government’s principle argument regarding a projecting is that the Court shouldn’t reach the statute on its face. And the Government’s position apparently is that if Avrech was aware that his conduct was prohibited by Article 134 that ends the question of vagueness. Although, we don’t concede that Avrech in effect had fair warning. The fallacy of the Government’s argument is that it completely ignores the second value which is a lack of standards to guide the enforcing authorities. This Court has consistently held that you cannot leave it to the enforcing authorities to determine what conduct falls within a statute.
Speaker: I think Mr. Bowman that as I understood the Solicitor General I am quite certain that I did, he freely acknowledged and conceded that this -- that if this very section of a criminal code, federal or state, it would be unconstitutionally vague and in that way you are rather been asked part of your argument.
Dorian Bowman: Well, I realize that I was -- I didn’t -- the way I understood I didn’t understand that he would concede that you would approach it on its face. And that was --
Speaker: I thought I heard him say that.
Dorian Bowman: If indeed that was it, I gladly accept the concession that the Court should have reached the statute on its face. The Government argues then that if the Court reaches the statute on its face that the statute is not invalid and it sets forth several reasons both in its brief and here on oral argument as to why the statute is not invalid. They argue in the brief at least that there’s a custom in practice in the military as to what offenses are covered. Now I acknowledge of course that in Dynes v. Hoover, this Court although recognizing the apparent in the terminus of the article held that there was a custom in practice in the military as to what offenses are covered. Well I suggest to you that what this Court did, that the times have changed since Dynes v. Hoover. Dynes v. Hoover was only concerned or involved itself of the situation where there was a small professional army. Now, however the armies have obviously changed that it were up to the kind of this conviction, two to three million men and you cannot say that practical men in the Navy or Army know what is covered by this Article. Secondly, the history of the article has certainly changed since 100 years ago. The Article we have shown in our brief really covers a growing number of offenses.
Warren E. Burger: Do you suggest that he was not aware that this might be a court-martial offense?
Dorian Bowman: Yes, Your Honor. I would make that point that he was not in fact aware.
Warren E. Burger: Well, how do you square that with the precautions he took and the things the he said?
Dorian Bowman: Well the only thing that he said Your Honor is that, “Are your opinions worth risking a court-martial? ”And that we urge is really different from knowing that whether or not your conduct is covered by this statute. All he said -- I mean I think --
Warren E. Burger: Does he have to focus on which particular statute?
Dorian Bowman: No, but he has to --
Warren E. Burger: Some statute?
Dorian Bowman: Well, I think he has to know something more than that his views are going to be displeasing to the military. And even if he did have fair warning which again as I say he didn’t. That doesn’t meet the question of the vagueness of the statute because you are still left with the second vice, namely the failure to revive guidance for enforcing authorities. Moreover the Government -- if you are looking at the term disloyalty in the manual, the Government in its brief freely concedes that the term disloyalty in the manual is vague and is indefinite and you cannot tell in advance the Government states in his brief as to what type of conduct falls within the manual's definition of disloyalty. Now, the Government doesn’t say in its brief, what this custom in practice or where it may be found. And it suggests that perhaps it can be found in the manual. But it also admits that the manual is only an illustrative guide and the Court of Military Appeals has frequently held that the listing of an offense in the manual doesn’t mean it’s covered by Article 134 and it is also held that the failure to list an offense in the manual doesn’t mean that it is not covered. So the manual can possibly tell you what is custom in practice. Mr. Justice Clark below said that the manual is only a mini digest of the roving character of Article 134. Now the Government suggests --
Speaker: Well, let’s assume that the Court of Military Appeals has upheld the conviction for conduct “A” and it said that that conduct is within 134. Let’s assume that it is done so a hundred times. Now, why would be the -- why would that section that Article be vague as to someone who -- now is about to engage in the same company?
Dorian Bowman: Because -- well first I would argue of course that fair warning this Court has always held that fair warning must be given by the language of the statute itself.
Speaker: This very firmly held otherwise in upholding the validity of a statute that talked in terms of the detestable and abominable crime against nature and held that a judicial construction of it gave forth fair warning.
Dorian Bowman: Yes, that is true and --
Speaker: And it is true that we certainly took that approach last year in water carriers.
Dorian Bowman: Well I would --
Speaker: It wasn’t a criminal statute.
Dorian Bowman: No, it was not a criminal statute. It is regulatory statute and I would concede I think after I say -- the argument that fair warnings be given.
Speaker: But there are a lot of cases, say once the statute has been construed as just as though the -- I read that way.
Dorian Bowman: I would say that if there was a specific -- if the Court of Military Appeals had specifically said that the type of conduct he has engaged in is covered by Article 134 then I would have to concede that yes indeed he did that very well.
Speaker: Well, if that is so, you’d also be conceding that the enforcing authorities wouldn’t have any roving authority about that kind.
Dorian Bowman: About that particular but that is not the case here.
Speaker: Alright that may be but nevertheless to that extent statute in this case should not be declared invalid on its face. If the statute has ever been construed in the manner that we have been talking, the statute should not be declared for invalid on its face here.
Dorian Bowman: If that is the case but that is not the case here, Your Honor. I concede that if the Court of Military Appeals had said that this particular conduct in this particular circumstance is covered by the statute that is true but that is not true here.
Speaker: You must be saying under the Court of Military Appeals has never construed Article 134 definitely to include certain conduct.
Dorian Bowman: That is quite correct. It has not indeed as I say, it has stated that the failure to list an offense doesn’t mean that it cannot be covered by Article 134.
Speaker: I have said that.
Dorian Bowman: Yes but the Court --
Speaker: Right how about the once that it -- where it has to affirm convictions.
Dorian Bowman: It has affirmed conviction but it has never said what Article --
Speaker: Engaging in certain conduct.
Dorian Bowman: Yes, but it has never said that Article 134 is limited to that conduct --
Speaker: Oh no! Not limited but at least for the next fellow who does not engage in that context.
Dorian Bowman: In that particular --
Speaker: You are talking of variety of overbreadth but you are because something -- the statute still could be vague as to somebody else.
Dorian Bowman: Yes.
Speaker: Not for that particular conduct.
Dorian Bowman: That if the Court of Military Appeals has specifically said, yes Your Honor.
Speaker: Well, if it affirms a conviction for certain kinds of conduct it seems to me it has said that 134 covers it.
Dorian Bowman: Yes, Your Honor but it doesn’t done that with respect to the particular conduct that we are involved in here. Now, the Government suggests that apart from what the manual represents as a repository of custom in practice that the manual gives fair warning. Now the inadequacy of this is as I have shown with regard to custom in practice that the Court of Military Appeals has frequently held that offenses which are not covered can still be charged under 134. In addition, new offenses are added every single time you have new additions of the manual. As a matter of fact the disloyalty provision here was added in 1951 after the Uniform Code of Military Justice was enacted and you cannot say here that there was any considered legislative judgment that this particular type of conduct should be covered. Now, the Government’s principal argument I think really goes to the question of what the constitutional rules of vagueness which we have been discussing had any application to the military. And the Government must offer some justification why the rules for the military should be different and it’s not enough to say just that the military is involved. This Court has always taken the approach that the party who wishes to relax constitutional principles must have the burden of showing why those principles should not apply in a particular situation. And this Court indicated in Frontiero and Toth v. Quarles that this rule certainly applies to the military. And the highest military courts in Jacoby and Tentia (ph) and the lower federal court have taken that approach as well as the two Circuit Courts here. And there are compelling reasons I think why the constitutional standards of vagueness should apply to the military. In the first case, we have people in the military who are draftees or volunteers who live their civilian life for at least a period of two years. They give up their civilian life. They make sacrifices and there is absolutely no reason why with regard to knowledge, why they should not have the same protections with regard to statutes that civilians have. Furthermore, the uniform code of military justice is a penal statute. It’s a penal statute and it is no different from any other civilian penal statute. It imposes penalties, people can go to jail for this and there is no reason why different standard should apply. And the Government offers nothing here really than code words and slogan such as military necessity and instead of any analysis of the issue. Now I admit that it may be convenient for the military to have a vague and overbroad statute. Indeed all enforcing authorities I am sure have come and would find it convenient to have such a broad statute. To have an open-ended statute but that is precisely why this Court has struck down such statutes because you can’t give enforcing authorities wide and uncontrolled discretion. Now there are indeed with regard to Solicitor General’s argument that the military needs Article 134, I suggest to you that there at least several military man who don’t agree with that, who say that we can get by without Article 134. And Chief Judge, the Army Board of Review, General Hodson said that and the Secretary of Defense own task force on the administration of justice recommend that Article I which included by the way the Judge Advocate Generals recommended that Article 134 be abolished. And I suggest for any conduct that the military doesn’t like, they have a very simple solution and that’s to go to Congress and enact specific punitive articles. They have done this before and Uniform Code of Military Justice was adopted in 1949. There was certain conduct covered by Article 134 which was -- which were made into specific punitive articles.
Warren E. Burger: Can you suggest by way of hypothesis what specific provisions that you are referring and thought about it, what specific provision would you suggest would meet this problem?
Dorian Bowman: Well, I presume you would run -- I presume -- I think you could draw a statute. I frankly haven’t thought of the word which would prohibit all -- which prohibit the -- let’s say the publication of any statement which let’s say draws into question of governmental policy. I think you would then of course run into the First Amendment.
Warren E. Burger: You think that’s less vague than this?
Dorian Bowman: I frankly, I would be perfectly honest, Your Honor I can’t. I have not thought about a statute sufficiently to draw it up just without thinking about it.
Warren E. Burger: But you’re telling us it could readily be done. I thought that’s what you were saying.
Dorian Bowman: No, I am saying that --
Warren E. Burger: Very easy to do it.
Dorian Bowman: No. If there is a particular conduct which the army doesn’t like, they should go and enact specific articles. I am not prepared this time to draft the statute right now as what could be covered. I think that you could draft a statute; you might of course in this particular context run into First Amendment question as to whether they could validly pass a statute. With whether such I would withstand this Court scrutiny but frankly, Your Honor I am not prepared to this time draft the statute which might cover this activity.
Thurgood Marshall: Solicitor General said the fact that you’re in the army gives you a little more knowledge than you would in civilian life.
Dorian Bowman: Well, Your Honor I take issue with that. I don’t think --
Thurgood Marshall: Well do you agree that after you have been in the army about 30 days, you realize that you for various reasons you find out you don’t have the same freedom of speech you have at home?
Dorian Bowman: I think that’s true and I think --
Thurgood Marshall: It is true?
Dorian Bowman: That is certainly true Your Honor but it is certainly no indication if you look at the statute at the manual as to what you can or cannot do. Obviously when you --
Thurgood Marshall: But you do know that it is a little less.
Dorian Bowman: Yes, I agree that it is --
Thurgood Marshall: I though that was the Solicitor’s point that in that framework, the longer you were in there and you began to understand that.
Dorian Bowman: I think you begin to understand that anything you do which the commanding officer might not like, you do risk punishment under Article 134. I admit that the freedom of speech is less. That does not mean and I won’t go into it now, but that doesn’t mean that the test --
Thurgood Marshall: I am not limited to this 134 there are a lot of other ways you can learn not only 134.
Dorian Bowman: Well, that’s true but Article 134 does stand in this --
Thurgood Marshall: You ever hear about KP?
Dorian Bowman: Oh! I have heard about KP Your Honor. But as Mr. Justice Stewart I believe suggested to the Solicitor General, if the military could easily have given an order or Your Honor did and order not to do what he did. It was very simple. Now in the few moments --
Warren E. Burger: Do you think that is really an unforeseeable mechanism to wait until something is happening and then give a direct order not to do it?
Dorian Bowman: Well I think it would certainly have taken care of this problem, would probably take care of a lot of problems in the military. Yes if you --
Warren E. Burger: Do you think as a generality that would be an effective mechanism?
Dorian Bowman: No, I don’t think, I think as a practical matter, the way that cover this type of conduct is to enact specific punitive articles. In the few moments remaining, I would just like to discuss the question of overbreadth. Article 134, the Government concedes at least in its brief reaches First Amendment -- reaches First Amendment activities and the Court has struck down statutes and if Government concedes that the Court has struck down statutes on their face it would reach First Amendment activities. The Government’s point here is that since Article 134 covers conduct outside of the First Amendment as well as within the First Amendment, this Court should not consider the statute on its face. Now the Government cites no case for that proposition. Frankly, I know of no case holding that because a statute can cover all types of conduct, it should be held overbroad because it impinges on the First Amendment. This statute because it is all embraced it covers a whole variety of activity including First Amendment activities and is therefore overbroad and should be struck down. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.