Prohibition on Military Unionization: A Constirutional Appiaisal

• Author: Deanne C. Siemer, .I Stephen Hut, Jr., L Gurden E. Drake
• Pages: 01

On October 6. 19i7 the Secretary of Defense issued a eomprehen-eive directive prohibiting participation by military personnel in cer-cain iabor union organizations or in activities associated with such organizations.' The directive reaches speech in the prohibitions on recruiting, solicitation, and collective bargaining, and also speech-related conduct such as membership, picketing. posting handbills. and distributing leaflets. This article describes. m Part I. the gen-eral constitutional constraints relevant to any effort to regulate apeech and speech-related activity by military personnel. It then analyzes, in Part 11, the case law specifically applicable to the principal prohibitions in the directive-prahibitions against: first,

mGenersl Counral. Department of Defen-e. i B. 1962 George Rashmeton Uni-'erst): LL B 1968 Harvard Lar School. Member of the Bar? of the Dirtiict of Cohmhia, NPI York Maryland, the TrvEf Telrltory of the Pacific Iilandi, the Unlfed Stares Supreme Court. the United Ststei Court8 of Sppeae for the Sec and Faurrh and Dlitiicf oi Coiumbm Cn'euifi. and the United State. D~-tner Court lor the D m m t of Columbia**Attorney. W11me1. Cutler & Pickerme. Rlaihington D.C .?,E, 1986. Umier-81th af Penn~ylranls. J.D. 1572. Hsrrard L s s School ilemher of the Bar3 of the Dimict af Columbia the United States Suureme Court. the United States Courts of Appeals for the Fifrh and District of Columbia CiicuDistrict Court far the Dirlricf ai Columbia The authorant h) the Offlee of the General Counael. Department of Defense. to ~ S E ~ S L in the

preparation of the directire diacussed in thii article.

United Btafei Court of hhnrar) Appeals.

The authors rirh to aeknoaledge the mporianf contriburmn of warren LSimpson. J1 atlorney Rsuls & Henderron Philadelphia. Pa A B 1965 Dartmouth College. d D 1972. Cornel1 Vmrerrity Department of Defense Direc-tlse Sa 1364 1 vas prepared by the Office of the General Counsel uith the advice and asilrfsnre of other lees1 officer rithin the Deoarrmenr of Defense

~ ~ ~ ~ ofnefenrr A B , i m

LL.B , 1968. Unlrerslly of Yn'glnla 3lember of :he Bali of Neu York and the

-*-staff~rtamey.office dGenerai coVnrei.

MILIT.ARY LAW REVIEW [VOL. i8

negotiation arid collectire bargaining: second strikes and other '01-lectire lob-related actions. third. sdmtatwn and ad~ocacs w

against attack on constitutional grounds

1. GESERXL COSSTITUTIOK.AL C'ONSTRAISTS Efforts to prevent unionization activities in the militar> mu analyzed primarilj uncle* the first amendment irhich pro\ "Congress shall make 110 lar~

   . . . abridging the freedom of i

   . . . or the right of the people peaceablr to asaemhle. and to petition the Government far a redress of grievances." In addition to the el-pressly stated right? of speech. asrembli- and petitLon, the protection of the first amendment has been extended to the eorallar~ "right of association" for the advancement of beliefs ani1 idem pet-taming to polmcal. economic. ieligious and cultural matteis * This eorollarj right is based on the recognition that the guarantee. of free speech and the right to petition for a ietlres3 ofoften ma! be hollon. in the absence of irrength gained tsociatm wrh orher?. Restrictions on unionization aetiimilitary alx mwt be consirtent aith the principle [ha.mated pereons or groups should be treated similarlylaw a principle e\plicitl? applied to the states in the equal pmtee~ tion clause of the fourteenth amendment aithe federal goremment in the due procamendment Each of these geneial constitthe .-tsndarde by which they are applied are

   A COLSTRAIVT.9 O\ REGLZATIOY OF MILIT4RE 1 \IO\IZATIO\ IllPOSED BY THh FIRST

   A 1fE \ D ME \ T

   Analyzing the lmge bod! of Ian rle\eloperl under the first amendment and a~ulrinethat body of Ian to wwticuldi. i.eeulaton

   provisions prohibiting unionization of the military im olves three braad questions: first, whether the first amendment applies in the milltar? context aith more limited scope or force than 111 the civilian what substantitw standards will be used to deter-utionahty of the prohibition: and tiwd, what fur-al limitation^ are impoaed by the first amendment overbreadth doctrine. These questions are e\aminerl beloa

   I . Application of the first amendment tn the military cantert

   The threshold question is whether the first amendment protects the freedoms of speech and association for those in the milltar).' Until quite recentl?., even some commentators who advocated an expansive vim of the protection provided by the first amendment iveie inclined to include the military in those "alien sectors" of soei-et? that "fall outside the area in which. . . freedom of expression must be maintained."s In Parker c. Lenye hawever, the Supreme Court held that while "military society has been a society apart from civilian society." and while " 'the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of diaciphne and duty.' '' n nevertheless "the members of the military are not excluded from the protection granted bb the First Amendment."ourt extended the protection? of the first amend-personnel. it also held that the unique character of ion justifies a narrower application of those protections than is afforded in a civilian context. In upholding Articles 133 and 134 of the Uniform Code of hlilitary Justice Lo against arguments that the? were unconstitutionally vague and overbroad, ihe Court cautioned pointedly that:

   In Hsmpton v Mon Sun Wong. 426 U S 88 (19761 houerer rhe Court suggested

   xithout elaboration. that the proteetimi afforded by the txo amendments "are

   -Id ai 744

   .Id [quoting Burns I Wilson. 264 U.S.

   137 140 119531)#Id a1 768 See (L!,L. Darh F Canmarding General 207 F Supp 549 (D

   19691 affd ~rrew 429 F 2d 427 I4th Clr 1970). CCII denied a01 E S 961 ilPill

   , O l O

   U S C S S 933 93l 11970)

   9 C

   political candidate; raiaed a'first amendment chnlle&e to military yegulations limiting political campaigning and the distribution of lit-erature on the Port Dii: .Ililitary Re?ei.ration." The primal.) issue in Grer, T Y ~ ? ahether ciiilians could have unfettered dccesr to Fort DI\: in order to ewrcise theii first arnenriment rights because the military reseriatioii, normall> open to civilian v1i1tot-.~~had be- come B "public forum." la As 111 Po~,krr /'. Lci'y. the Court iewlred

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   the issue by relying, in part, on the special needs of the rnditarl-mission Writing for the majority. Justice Stewart observed

   One of the "cry puipoies fay ihieh the ConiIitutiar \>a8 ordained and eomblirhed ,bas to 'probide for the C O T P ~ U ~ defence " and this Court mer the pars has on ~ounf:esi aeeailanr reeagnlzed the speed eonititutioral function a i :he m~hfary

   ~n our nafmal Ihfe. B funelm both expiieir and mdlipensable In ihwt. It 1; "the primary business of armie~ and naiie? to fight UT be ready IO fqht nbrs should the oeeas~on arise " .And ~f IS conaequentli rho bumess of B mll itallatinn like Fort Dir to tram ioldlers. not to pmxleiarvm

   tian hap been 'the hiitorieally un ,PI of [~fsl command'"g affieer SUmmanly to eielvde the ares of his /om.mand " The notion that federa. m ation?. like muniriprl

   assembly and communicanon of thoughts bi pmafe e~uzens 13 thus hwfanrall) and ronstitutmallg false 2:

   Since there was no claim that the Fort Dir authorities had ahan-doned their power to exclude the Court held that the challenged regulations were constitutionally valid.

   Broadly interpreted, Gicc, arguably .upport? the pop0that m11irai.y authorities could ban dl1 on-base unionization a m simply b) evrciaing theu traditional powers 0) et militations. There are. howe\er. limits on the reach of GI.

   on a military bare. Second. and more fundamentally. ear^

   enie Court cases are at oddr xith the mechanical approach

   amendment right? to piison in-ei School Dzsfiicf.20 the Court ould not punish the aeanng of

   associational conduct, but the protection afforded by the Consritution vill turn on the kind of e\pres;ion or iiisocihtion at idsue and the effect on the military midiion: and second. ohile the public

   "abandonment") ma) permit banning from of the kind of speechmaking and leaflettmg by ue in G,eei.. the doctrine may not p~ecluile all w t and ~ 1 1 not apply to the npht of diiaci-

   ple, the Couit affmdeil ce

   ation

   2. Substantive standards for applzeation of the first amendment

   The extent to which first amendment protections are limited inthe mihtaq contest depends upon the substantive qtandards that the courts apply to determine when the government lawfuliy ma? prohibit or reerrict expreasiw or associational conduct. Although the Supreme Court has never really formulated a general and cahe-aive made of first amendment analysis. it has followed primarily two related Under one approach the Court balances the importance of the government's interest in limiting speech os association against the individual's interest in the restricted speech or association. Under another appioaeh, the Court looks in a more narrovly focused way to see whether there is a clear and present danger to a government interest and if such a danger ia not present, the individual's interest taker precedence. The basis far these judgments-general principles for choosing between these two approaches and far applying each--are set out below

   protection

   a Bolanetng iiidii,ldvni and goDern,neni i,,terestsUnder this anal>tieai approach, the muwill be frequent instances in which a statute or other gorernment action will in some nav burden eipretaiie or aaaociationai conduct. and that "[nleither right . . . is absolute." 23 The question whether the law 011gorernment action is constitutional. therefore, will turn on two determinations: first, a neighing of the respective interests of the individual and the government; and aeeand, a review of the government's aiternatires to see If an?- other approach could achieve the same result through less restrictive means.

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