Open Houses Revisited: An Alternative Approach

• Author: by Major J. Bryan Echois
• Pages: 08

1. INTRODUCTION

   Do open houses at military mstallations open the door to any and all groups wishing to promulgate their messages? For some time. this question has troubled military commanders and their attorney ad-visors when they haw attempted to exclude politically oriented goups from participation in open house activities. Despite a number of cases involving these claims1 and a number af articles suggesting resolutions to the problem,' there remains much confusion today over whether commanders may constxutionally exclude certain categonea of speech from open house activmes.

   The uncertainty within the military and the mconsment resolu-tion of the cases by federal courts stems from the current Supreme Court approach to questions of governmental suppressmn of speech activities where the context of the speech serves as the basis for different treatment As has been noted elsewhere, the categorical forum approach used by the Court IS more conclusoly than analytical and provides little predictability for those seeking guidance.3

   Part I1 of this article discusses the Supreme Court's current approach to these contextual cases of express^ regulation and the

   inconsistent results in military open house cases resulting from Its application. The article then reviews some of the problems posed for military commanders bg the current approach Part 111 dPscriber an alternatwe analytical approach 10 these first amendment cases suggested by Professors Daniel Farber and John Saaak and then coni ments on the advantages of their method mer the present analytical framework that the Court uses Part IU applies this different ap proach to the question of mhtar? open houses. addressing iome of the more common OhJeCtlOnS to nnhtary efforrs TO exclude political speech ar open houses

   11. THE PUBLIC FORUM APPROACH

   Over the years. rhe Supreme Court has developed a fairly cohei ent approach Io two types of free speech cases. \%'hen government har attempted to restrict an entire category of speech such as abscem ty, the Court has relied mainly on a defminonal approach. If the suhJect speech Is included In One of 4eYeral categories Of UnprotKted speech. then the regulation 1s permissible If on the other hand. the speech does not fall m10 the narrowly defined categories of unprotected speech. the speech 1s absolutely protected despite potential offense to a majority of the local cammunit?

   The Court has also been successful m devising an analytical scheme for time. place. and manner restrictmns on speech. In these cases the Court balances the governments interest agamt the interests of the proponent of the express~re activitl and upholds reasonable nondiscriminatory regulatmns.6 In general time. place. and manner restrictions must be content-neutral. narrowl) tailored to seiw a significant government Interest. and must leave open ample alternative channels of communication

   Since the 1970's. however the Supreme Court has faced a groamg number of cases that have not fallen readily into either of the above categories Instead. these cases have nnolved restrictions on certain tgpes of speech as they relate to certain contexts These cases do not involve traddionallg unprotected speech, and hecause the regula-

   19901 OPEN HOUSES

   tmns are not concent neutral,b the regulations would fail under a craditmnal time, place, and manner approach.

   In 1983 the Court clarified its approach to these cases by delineating the different kmdr of forums in which speech O C C U ~ S . ~

   According to the Court, there are three rgpes of forums: traditional public forums. designated public forums, and nan-public forums. TIaditional public faruns are those that have been "by long tradi~ tion or by government fiat devoted to assembly and debate," such as streets and parksLa In these "quintessent~al public forums." content-based regulation must necessanl) be related to a compellmg state interest and must be drawn narrowly to achieve that end!'

   The second categon 1s "property which the State has opened for use by the public as a place for expressive actint?," or a designated public forum.12 Although not required to rreaie a forum in the first place. or to retain Lts open character, once the state chooses to do so it is bound by the same restrictions present in the traditional public

   For example. aithough a school LS normally a non~public forum, If the school was used for a palirical meeting. then the usewould result m designating that place 8s a public forum!? Tne. place, and manner restrictions applied in either the public or designated publlc forums must comply aith the abov-stated requirements's

   Th? final category 1s the non-public forum. which may be reserv-ed by the state "for Its intended purposes. communicative or other^ wise. as long as rhe regulation on speech IS reasonable and not an

   .

   effort to suppress expression mere15 because public officials oppose rhe speaker's iieii"18 Sotre that a non-public forum allous the gmernment to exercise home content-based dainmmatmn hetween expressive activnies. allmring some but restricting othera

   Once it defined these three types of forums. the Court's approach has been to consider the particular resmction that the governmenr imposed in a case. to determine which of the types of forums IS in-voked, and then to measure the restriction against the applicable standard for chat farum Use of this system has led the Court to uphold a ban on placing unstamped mailable material m mailboxes." a refusal to sell bus advemsmg to polmcal candidates?s a denial of use of a schools internal mail ststem for a union rivaling the deslmated bargaining repreaentative.le and a ban on posting leaflets on utility poles.2n B) cmtmt. public forum analy515 has led the Court to strike down the ability of a city theater to refuse to permit the performance of the musraI and the ability of the federal government to exclude expressive activity on the sidew-alk m front of the Supreme Court Itself.22

   The use of these categories haa been criticized b? many aa adding little to rhe analys~sand prrdictabiliry of such first amendment que>-tions.21 Whether a forum IS public. temporarily public. or non-puhl~ is perhaps clear at the extremes, but the Court ha5 been unclear COPcerning the criteria for determming the type of forum mol\ed Ongmally, the Court used a historm1 test for determining the statub of a site 24 In the 1970 5 hweier some members of the Court ap peared to adopt a compatibility test ' ?/ Thua. even w e s not rredi-

   MILITARi LAW REI 1EQ [I-"]

   19901 OPEN HOUSES

   tionaiiy held to be public forums could not restrict speech that was compatible with that forum's use In other cases. the Court seemed to place emphasis on governmental efforts to maintain the closed nature of a forum in determmmg the nature of the forum.z6 Thus, there IS confusion over what cntena to use m detenmng into which category a forum fall^.^'

   After determining the appropriate category of the applicable site, there has been a tendency to ~ a o r e all other considerations m deter-mimg whether the restriction IS constitutional If a forum is deemed to be public, v~rtually all speech LS protected. If a forum is deemed to be nan-public, virtually all restrictions are upheld. In both eases, the ovemmplification inherent in the public forum approach results in a failure to expiore both the legitimate interests of government and the free speech interests of the public m a gwen case.zB

   For the military commander seeking to decide what groups may participate man open house or for a staff judge advocate providing advice to the commander. the public forum analysis has been completely unhelpful. It must be noted that military bases have been viewed as the quintessential non-public forum.zs The authority of military commanders to exclude the public from areas under their control has been limited only by a requirement that the commander not be arbitrary and capncious.30 The Supreme Court clearly has recognized a distinction between federal military reservations and traditional public forums such 8s municipal streets and parks. In only one case, Flower e. United States.SLinvolving a public street run-ning down the middle of an Army mtallatmn, has the Supreme Court

   'VCi Cornellusr NAACPLeSalDefen3e and Educmiond Fund 473 L S i68119851 (lack of government intent to open up to ride range of expreisl\e ~ctli-if) deter-minative of non-public forum rfafurj

   9 do not mean to suggest that the C o w has uniformly adopted any of these approaches at Bnrpomt m time Indeed II isfhe facffhafmdirldual Iusficesappmach the 4uestion of the statu8 of the forum iifh such diverlent crifena that contributes to the confusion

   'bSee Farber and lloaak nie Misleodzng ,Valure gfhbiic Fo~rndnalys~s Con

   foll and Conies an F , ~ ~ A " ~ ~ d ~ ~ ~ ~ A ~ ~ 70 Va L Rev 1219, 1221(1984)

   Y Spack. 124 U S 828. 836 (1976) In reaching this C O O C ~ U Q ~ O ~

   8s well that

   B non-public forum categonratlon aauld result from a compatibility analwr "And

   if IS c~niequenrly rhe business of B military ln~tsllsfion to l18in soldren not to pmride a public forum' Id

   '"CafefenaU'orkerri McElm, 367 US 886 (19611 Foaracommanders barmenffmm his or her in~tallatlon to be valid the arbitmry and capncious standard requires onl) that the reason be rational and nmdiscriminatory As rhe coun said ' [a penon) could not be kept out because she w&! a Democrat OT Methodlit Id at 806

   "407 I S 197 (1972)

   "%ree~

   the Coun

   seemed to 'el? on the hratorlcal feir for forum analys~ One ma, a~gue

   determined that part of a military mstallaaon 1s public. and that has based on a determination that the mh1ai-y had ' abandoned any nght to exclude rivilian vehicular and pedestrian traffic from the aVenue:'32

   Yet when the military opens the mstallatmn to the public during an open house. the question of public forum 1s raised once again. If as some argue. the open house activity creates a temporary public forum. then content-based restrictions may be justified on$ bg using...