Culver v. Seeretarv of the Air Force: Demonstrations, the Military, and the First Amendment

• Author: by Gerald P. McAlinn
• Pages: 03

The Culver ease dates fiwn the Vietnam e ~ a . Captain

'er, an Air Force judge adcoeate, pa-uar demonstration in London. St-martral foi~nd hint guiity oftdating an Atr Force regulation prohibiting such actmities TecantaallN upheld by the Couif of Appeals foi the Distrlct of Columbm c!i.euit.

Mr. .McAl~nw anaiyzes th.e decision, its nnteeedents, and its zmplieetians for the futuie. He discusses the reg-ulation zchieh uas the sitbjeet of the ense. The coarts. he beiiaws, could easily harre reached a dzfferent resuit in applying tile standard of dear danger to loyaity. disci. pline, or maraie. .MY McAiinn concludes, moreot'ei, that the case repressxts a departimfrorn precedent tn the f m t amendment aria.

1. INTRODUCTION

   Despite the literal language of the first amendment,' the Vnited States Supreme Court has never2 interpreted the freedom of speech

   *The ~ p ~ n i o n ~ and eonelu~ion~expressed in this ~ r t i e l e m e those of the Buthop and

   do not neeemaiily represent the view of The Judge Advocate General's Sehaol. the Department of the Army. or any ather governmental agency*%A,. 1915, Tem~le Universili. J D.. 1919 Univerrirv of Pennivlrania LauSehaal. Recipient a? a Franklin E. Gowen Travelling Fellowship und& which Mr. McAllm will be pursuing a graduate degree In infernatma1 law at T'nnity College. Csmbndne Unlveralw Ennland. durins the nendemie year 1979.80 Member of

   . -

   Phi Befa'K~ppn.>The fimf amendment exprsaely %fate%that. ''Congress shall make no law . .

   ahridging the freedam of speechlCamment. Cnrled Stot*s Y Krln~r Threat8 and the First Bmendmrnf, 125 U.Pa L. Rei 919 (1917).

   Justice Rrennan, urifmg for the Court ~n Rolh. renewed the amendment'a history and concluded, 'it 18 apparent that the uncandiriannl phrasing of the First

   '' U.S. Conar. amend. I.

   proriaion as an ab~olute.~

   This has led the Court. by necessity, into the difficult task of defining the extent of the first amendment's reach and the degree of protection to be accorded the speech In

   question. Perhaps in no single area 1s the analysis more complex and the decision mare significant than in the context of the military.4

   Much of the difficulty stems from the peculiar nature of the military. Considerations such as troop morale and discipline. national security, political neutrality, and its "primary business to flght or be ready to fight wars should the occasion arise'll set the military apart from civilian society.i In Cu!cir L. Seeretuiy of the 412 Force,' the United States. Court of Appeals for the District of Co- Amendment w s not intended to protect erery utterance " Roih ,. United Stales

   3 s

   U.S 416, 483 11917) ooerriiled on other gm'tnda See Cohen > California, 403 U S. 15, 19 11971). Frohwerk % United States. 249 U S 204. 206 (19191

   For support of the absalutiit postflan. see Cahn. Mi Jxa!me Black and Firs1 Ammdmml ".4bsolulee" A Public lnirrsiru 37 N Y U L Re\, 549 (19621 dThe use of the term absolitr IS slightly misleading In incr. no abaolvfmf adioeatea that all eommunieatimP am protected from infringement all Ihe time Rather, the absolutist looks at the speech in question and decides whether It IP

   protected YI unprotected Having decided that the speech falls outside rhe ambit of the firat amendment. he or Ihe eaniiders that if meTifs no constitutional atfention Street Y Yeu York. 394 U S 176 11969) IBlack. J ,dissenting). Chapllnsk? V. Xeu Hampshire. 315 C.S 563 (19421

   On the other hand. a nanabrolutist 07 balancer ueigha the mid interest in free speech againsf the social value to he achieved by the ahlidgemenf For a balancer the es~enfial inwiry is not rhefher the weech IS mateered or unmofeeted hut rather whether ihe-mfrmgemenf 18 ju&d by the-social Interest; to be served Konigiberg v State Bar of California. 366 U S 36 11961). Barenhlatf ! United States. 360 U.S 109 (1919). See Emerson Tovard B General Theory of the Fir61

   3UUnited States LI re1 Tath V. Qunrles. 350 U S 11. 11 (1950)

   Parker, Levy. 411 U.S 133, 743 (19741, where the Court stated fhst "the military 13, by necessity, a ipeeialiied society separate from eiwlian society "

   '559 F.2d 622 (D.C Cir 1977)

   lumbia Circuit was confronted with the task of reconciling first amendment protections and aspirations with the realities af military life. In holding that an Air Force regulation prohibiting all demonstrations on foreign soil by American servicemembers did not violate the first amendment, the Culner court exalted military necessity to the exclusion of a careful analysis of competing values. The deferential test fashioned by the court required no individualized showing of necessity by the military, thus going beyond Supreme Court precedents in the first amendment military arm8

   The appellant, Captain Culver, an attorney* assigned to the Judge Advacate General's Carps of the United States Air Force and stationed at the Royal Air Force (RAF) Base in Lakenheath, Suffolk, England, was tried before a general court-martial in July of 1971. He was charged and convicted of conduct unbecoming an Officer and a gentleman under Article 1331° of the Uniform Code of Military Justice (UCMJ) and af violating a lawful regulation under Article 92, UCMJ." The Articie 133 charges stemmed from a series af incidents beginning on May 24, 1971, when it was alleged that Captain Culrer solicited military personnel to attend a demonstrat i d 2 expressly prohibited by Air Force Regulation (AFR) 36-16, para. 3e (3)(b).13 Further, Culver was said to have violated Article

   'Greer 5'. Spoek. 424 0.S.

   828 (1976): Parker Y. Levy, 417 U.S.

   1976). Reportedly Culver Betfled ~n England after leaving the Air Force. and, 08 of 1977, had became a barriater. 5 !&I. L. Rep. 1009 (1977).

   "559 F.2d at 823 10 C S.C.

   5 988 (1976).

   This statute provide8 ~n be el want part,

   "Any commissioned officer who is coni,icfed of eonduer unbecoming an officer and P gentleman shall be pmished as a eourt.mnmn1 may direct "

   *aThe regulation provides ~n pmt. "Members of the All Force are prahlblfed from participating in demm8trafiond when . (b) in B fmeign country."

   788 (19741.

   'Culver I. Secretary of the Ail Force, 889 F Supp 881, 88s 1D.D.C.

   92 by his own attendance ai a demonstration in London on May 31, 1971 in contravention of AFR 36-15."

   Upon exhausting all avenues of military revien ,Is Captain Culver Bled wit in the United Srates Districr Court for the Dirrrict of Co-1umbia,l6 reeking collateral seviewl' of his conviction ivhieh had re-sulted in a sentence of a $1,000 fine and a reprimand.'B After the district court granted the motion of the appellee. the Secretary of

   "Id at 623 The court reeounf~ in canirderable detail the eienti of l a y 31 1971

   Proiecufion feitimoni relealed fhar fire chartered buses armed at Speaker's Corner 81 Hyde Park, London, discharginp milltar) personnel in enilran elothe8. :\total ai approrimaiely 200 w i l m and military personnel uere present with the military members They were issued uhife arm bands depicting a helmet and up-raised clenched fnt

   Aiter SIX unidentified men read ifstemems to the media. the group received their petitions and proceeded to the embasby in small groups, appraxrmately 10 to 26 y8rda apart Each group entered and prerented their perifmi sf the embassy, walked back t o Hyde Park. and uere taken by their buses to a rack concert Captain Culier WE identified and photographed sf both the p8rk and the embariy ~earingan armband. Id at 626-17

   w w . Hi; $1,000 h e

   and reiilmand did not reach fhi lejlei of severity nec&ary LO entitle him to automatic reiiew. This. and The Judge Adroeate Generara refusal to grant a discretionary appeal. led Judge Lerenthal to conelude that "Since nppellanf'n conbfitutional claims %ere rhus not reiiewed by any appellate court. either milnary or enilian. 1 feel free to approach them almost as though I *ere B

   member of the Court of M~llfarr Aoaeal~ undertakins direct review." Id at 631 . ..

   (Lerenrhal. J concurring)

   Cuher'! eaurr marlla1 took place m 1971. It IS inreresting to ~peevlafe that the care might have follaued a diiferent path if the Court of Militark Appeals had issued Ita MiPha I deeiiion before then. MePhail Y . United Stafea. 1 M J 451 (1975).

   "Culver v Secretary of the Air Faree 3P9 F Supp 331 1D.D

   3. 1976).

   >'The Knifed States C~nilifufion empowerr Congress 'Iflo make Rules for the Government and Regulation af the land and nai,al Forces." U 5. Conat. art. I, 8 8, cI 14 In this regard. article 76. K C M J , 10 U 3 C 5 816 (19751. makes military reriew of court martial proceeding6 "final and mndu%ive'' and "bindinp upon all courts . . airhe United Ststez."

   '#569 F 1d 613

   the Air Force. for summary judgment,18 Culver took an appeal to the District of Columbia Circuit Court of Appeal8 to challenge the dismissal of his suit.

   11. THE CULVER COURT'S RATIONALE

   Renewing his previously unsucceasful attack an the regulation,20 Captain Culver initially argued that the regulation. specifically the word "demonstration" therein, vas unconstitutionally vague, over. braad and capable of reaching many clearly protected activities. Since one of the functions of the regulation is to preserre harmoni-ous relations with the host nation,21 Culver contended that the eeope of AFR 35-11 should be narrowed to include only those demonstrations adversely affecting the relationship. Finally, Culver asserted that his behavior \+-as not. in fact, part of a demonstration.22

   >*The dmtricf court. in a Memorandum and Order by Judge Pratt, relied on the definition ai a demonatration glien in United Staten v Bradley. 418 F.2d 688, 690 14th Or. 19691. that.

   If there i( m y feature common to all the listed BC~J.

   ~f LJ that the expres-m n they embody IP not merely offered to the pubbe. but overtly displayed and proclaimed. They are "demonmafive" aefimfies. Such acts BQ

   picketing. ait indl protest marches. apeeches and acts ordinarily BQ- rooated with demonstrations, like pmading. singing and display of plscards. all. as appellants aptly put It, "Inevitably...