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December 22, 1972

Kenneth W. STOLTE, Jr., Donald F. Amick, Plaintiffs,
Melvin R. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, Defendants

Aubrey E. Robinson, Jr., District Judge.

The opinion of the court was delivered by: ROBINSON, JR.


Aubrey E. Robinson, Jr., District Judge.

 This action, initiated as a habeas corpus petition, seeks review of the constitutionality of plaintiffs' convictions of certain offenses by general military court-martial. The case is now before the Court on cross motions for summary judgment.

 Plaintiffs are two former members of the United States Army, draftees, who were stationed in February, 1968, at Fort Ord, California. *fn1" That installation served, inter alia, as a basic training center for new troops. On or about the evening of February 21, 1968, plaintiffs distributed at Fort Ord about one hundred and fifty copies of a leaflet they had previously prepared expressing their disapproval of the war in Vietnam. *fn2" Plaintiffs were subsequently charged and convicted of violating Articles 134 *fn3" and 81 *fn4" of the Uniform Code of Military Justice *fn5" in that they publicly uttered a statement disloyal to the United States with design to promote disloyalty and disaffection among the troops and the civilian populace, and further that they had conspired to utter that statement. The disloyal statement in question is the leaflet described above.

 Plaintiffs were sentenced to dishonorable discharges, forfeiture of all pay and allowances, and confinement at hard labor for three years. *fn6" The convictions were affirmed by the Army Board of Review. *fn7" Petition for grant of review by the Court of Military Appeals was denied, *fn8" as was application to the Board for Correction of Military Records. *fn9"

 Plaintiffs here challenge the constitutional validity of their convictions on two interrelated but distinct grounds: alleged vagueness in violation of the due process clause of the Fifth Amendment, and alleged overbreadth infringing on plaintiffs' rights of free speech and expression protected by the First Amendment. These contentions will be considered separately. They were raised and rejected before the military tribunals. Specifically, plaintiffs seek (1) a declaratory judgment that their court martial convictions are invalid as violative of the First and Fifth Amendments; (2) restoration of all back-pay and benefits of which they were deprived by virtue of the convictions; and (3) appropriate correction of their military records. The constitutional issues will be considered here only in regard to the Article 134 convictions for uttering disloyal statements. The Article 81 convictions for conspiracy to violate Article 134 were general counts obviously dependent here on the validity of the Article 134 convictions.


 It is well settled that federal civilian courts have jurisdiction to review by writ of habeas corpus the validity of a court-martial conviction. Burns v. Wilson, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953). *fn10" There is no contention here that this Court lacks jurisdiction in the present case. Although plaintiffs were not actually in custody at the time this action was instituted, they were then subject to conditions of parole. Further, their dishonorable discharges resulted from the convictions here in issue. It is settled in this circuit that even absent a habeas corpus petition court-martial proceedings are subject to review by way of declaratory judgment or other form of civil action provided that the scope of review is confined to that comparable to habeas corpus scrutiny. Kauffman v. Secretary of Air Force, 135 U.S. App. D.C. 1, 415 F.2d 991 (1969). *fn11" Kauffman further held that the standard of review to be applied was that "military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule." *fn12" It is in this light that plaintiffs' military convictions must be examined for their conformity to prevailing constitutional standards.


 It should be noted at the outset that plaintiffs are not here challenging Article 134 as unconstitutionally vague on its face. *fn13" They attack the facial vagueness of the "specifications" *fn14" enunciated in the charges against them. *fn15"

 The constitutional standard for vagueness is clear and well established. A criminal law must "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L. Ed. 989 (1954). The due process clause of the Fifth Amendment is offended by anything less than such fair notice. The Supreme Court has repeatedly indicated that the purposes of its constitutional holdings on this point are two-fold: to assure adequate notice to the potential violator that the contemplated conduct is proscribed and to minimize the possibility of arbitrary and discriminatory enforcement of the law. *fn16" While the need for "ascertainable standards of guilt" *fn17" is even greater in a context involving First Amendment rights, that aspect of the case will be deferred until the later discussion of overbreadth and the First Amendment.

 Having recognized the standard generally applicable in evaluating alleged statutory vagueness it is necessary to examine whether that same statutory standard is applicable to military law or whether conditions peculiar to military life require a different rule. The Court of Military Appeals has aided in this task by its acceptance of general Supreme Court standards on vagueness without indicating any need for a departure from those standards in the name of military necessity. United States v. Howe, 17 U.S.C.M.A. 165, 168-69 (1967). *fn18" The Government here concedes that the proper standard is one which would not "leave them bereft of fair notice as to how to conform themselves or their behavior to the demands of post life." *fn19" The Court likewise has been unable to discern a rationale which would properly dispense with the necessity of fair notice of proscribed conduct, although a determination as to what constitutes fair notice in a given context should be subject to consideration of all the circumstances, including military necessity.

 The Court of Military Appeals has held that Article 134 of the UCMJ is not void for vagueness on its face. United States v. Frantz; 2 U.S.C.M.A. 161 (1953). There the Court held that Article 134


must be judged, . . . not in vacuo, but in the context in which the years have placed it. . . . That the clauses under scrutiny have acquired the core of a settled and understandable content of meaning is clear from the no less than forty-seven different offenses cognizable thereunder explicitly included in the Table of Maximum Punishments of the Manual [for Courts-Martial, 1951]. . . . Accordingly, we conclude that the Article establishes a standard 'well enough known to enable those within . . . [its] reach to correctly apply them.' *fn20"

 The specification here under attack is one of the cited offenses cognizable under Article 134. This is apparently one of very few cases which have launched frontal attacks on a specification, as distinguished from an attack on the general article under which the charges are lodged. *fn21" The Court believes this approach to be well-founded, however, for each of the now more than seventy separate specifications under Article 134 is in effect a separate offense and each specification, as well as the general article, must on its own terms pass constitutional muster. Frantz involved a specification (possession of a false pass) with none of the inherent ambiguity of the "disloyal statement" specification. While military usage, regulations and case law may be sufficient to provide fair notice of proscribed conduct with regard to certain specifications, those sources must be examined with regard to each specification to be certain that "the clauses under scrutiny have acquired the core of a settled and understandable content of meaning" and therefore do in fact provide fair notice of the proscribed conduct.

 With fair notice as the threshold requirement, the Supreme Court has repeatedly struck down statutes where no definition or standards were enunciated to clarify the scope of inherently ambiguous language. *fn22" This Court is of the opinion that the word "disloyal" is inherently ambiguous and ill-suited to proscriptive use, especially where First Amendment rights are involved. It is not a word of easily defined meaning and common understanding such that no further standard is necessary. "Measures which purport to define disloyalty must allow [knowledge of] what is and is not disloyal." Baggett v. Bullitt, 377 U.S. 360, 380, 84 S. Ct. 1316, 1327, 12 L. Ed. 2d 377 (1964). Just as "conduct that annoys some people does not annoy others," *fn23" so also that which is disloyalty to some may seem to others the highest form of patriotism. The proscription is "not fenced in by the text of the statute or by the subject matter so as to give notice of conduct to be avoided." *fn24" This Court is unable to perceive any "ascertainable standard or guideline superimposed on the regulation in the context of the military environment" *fn25" and has been offered no authorities, indeed nothing at all, from which even the outlines of such an "ascertainable standard" might be drawn. The "military environment" alone certainly cannot be invoked as a catch phrase to bypass the standards of fair notice so often set forth by the Supreme Court as constitutionally required.

 Assuming arguendo that the military has a valid interest in proscribing some speech, it should be able to draft the proscription in terms substantially more informative, than the blunderbuss approach employed in the disloyal statement specification. While the fine lines of constitutional law involved may have to await judicial clarification, this Court believes that the Constitution requires that the military define with greater precision the types of speech to be proscribed under Article 134 in the interest of good order and discipline. *fn26"

 The Government's argument that "no reasonable man could have been left guessing beforehand as to the position of that close but vivid boundary between 'rhetoric and disloyalty to the United States'" *fn27" cites United States v. Harvey, 19 U.S.C.M.A. 539, 544 (1970). Yet Harvey also stands for the proposition that "disagreement with, or objection to, a policy of the Government is not necessarily indicative of disloyalty to the United States." *fn28" This Court is left guessing even after the fact whether the statement is rhetoric or disloyalty, for nowhere has the Court been able to discover what is indicative of disloyalty to the United States. The Government contends that the leaflet was a "call to arms" in resistance to national military objectives and a disavowal of allegiance to this country in its pursuit of military policy abroad. Yet plaintiffs were not charged with disobeying orders or counseling others to do so. They were charged with uttering disloyal statements and it must be shown that plaintiffs had fair notice that their statements could be considered disloyal to the United States. The leaflet obviously sought support in expressing opposition to the war in Vietnam, but the Government has yet to demonstrate that this is the equivalent of disloyalty. Even if the specific words here involved, however, were clearly "disloyal", plaintiffs would still be able to successfully attack the specification as vague on its face. *fn29" Arguments directed to the specific contents of this leaflet, then, do not answer the challenge of vagueness on the face of the specification.

 The second vice of vagueness in that it allows for arbitrary enforcement is equally present here. Unfettered discretion to define and punish "disloyalty" on an ad hoc basis is conferred upon military authorities. This Court fails to see how military officials could adequately determine what is a disloyal statement and make that determination within constitutionally permissible limits and still be subject to effective judicial scrutiny. "Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.'" *fn30"

 Accordingly, this Court finds the "disloyal statement" specification under Article 134 of the Uniform Code of Military Justice to be unconstitutionally vague. *fn31"


 Plaintiffs contend that the disloyal statement specification is unconstitutionally overbroad, both on its face and as applied to them. A law is overbroad "if in its reach it prohibits constitutionally protected conduct." *fn32" Plaintiffs contend that the reach of the specification abridges freedom of speech and expression protected by the First Amendment.

 A threshold question must be the extent to which the First Amendment applies to members of the military service. The Court of Military Appeals has long recognized that the amendment does apply to military personnel *fn33" but has also indicated that military free speech is not as broad as that accorded civilians, being subject in the military to special limitations in the interests of good order and discipline. *fn34" This Court accepts the standard set forth by the Court of Military Appeals and will proceed to examine the issue of overbreadth on the presumption that speech "palpably prejudicial to good order and discipline" *fn35" may validly be proscribed consistent with the First Amendment.

 The disloyal statement specification challenged here *fn36" has three basic elements: (1) a public utterance, which is (2) disloyal to the United States, and uttered with (3) design to promote disloyalty and disaffection among the troops and the civilian populace. *fn37" In construing these elements the Court of Military Appeals has held that (1) the alleged disloyalty must be to the United States as a sovereign political entity *fn38" and that (2) the utterance must have a palpable and direct effect on good order and discipline. *fn39" It is not necessary that the utterance be successful in provoking disloyalty, *fn40" and "a declaration of personal belief" can be found to have the requisite intent and effect. *fn41" It is in this light that the Court will proceed to examine the challenge for overbreadth. *fn42"

 Even where concededly important government interests are involved "it has become axiomatic that '[precision] of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438 [83 S. Ct. 328, 340, 9 L. Ed. 2d 405] (1963) . . ." U.S. v. Robel, 389 U.S. 258, 265, 88 S. Ct. 419, 424, 19 L. Ed. 2d 508 (1967). It is not necessary to "balance" the substantial competing interests involved where a decision can be reached on the scope of the means chosen by the Government to achieve an admittedly legitimate goal. *fn43" Here the goal is military order and discipline. The disloyal statement specification concededly reaches some speech which would clearly be to the prejudice of military order and validly subject to prohibition. But the specification may also reach many statements not validly subject to military proscription, and therein lies its fatal flaw of overbreadth. The overbreadth lies, as does the vagueness, in the ambiguity of the word disloyal. The soldier is put at his peril that a statement, especially a controversial or political statement, may be taken by some, including a jury, to be disloyal and thus designed to encourage disloyal thoughts or "disaffection." "When one must guess what conduct or utterance may lose him his position, one necessarily will 'steer far wider of the unlawful zone . . .' . . . For '[the] threat of sanctions may deter . . . almost as potently as the actual application of sanctions.' . . . The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform . . . what is being proscribed." Keyishian v. Board of Regents, 385 U.S. 589, 604, 87 S. Ct. 675, 684, 17 L. Ed. 2d 629 (1967) (citations omitted).

 Military personnel retain their basic rights and freedoms as American citizens, subject only to those limitations necessary in the interests of good order and discipline, the unique components of their specialized environment. They retain their political freedoms, their right to hold their own views on all political matters. It is not inconceivable, indeed it is probable, that United States military policies, both foreign and domestic, will often become political issues. The Vietnam war has unfortunately been one of the great political issues of our time. Yet is one of the highest values of our society that all citizens are able to examine all issues, come to their own conclusions, and freely discuss and express their views. It is not suggested that soldiers can hold political discussions on the drill field or elsewhere while on duty, but in their off-duty hours, in barracks "bull sessions", and even in leaflets, *fn44" they can express their views on political issues, so long as they do not directly prejudice good order and discipline. While soldiers can be compelled to obey orders, they can not be compelled to an ideological orthodoxy prescribed by their superior officers.

 Military discipline is a unique phenomenon. This Court recognizes the military interest in the morale and motivation of the troops. It is further recognized that the military is a specialized organization, one whose efficiency may at times be vital to the national interest. The problem is to reconcile this interest with the First Amendment rights of the participants.

 Accepting the view of the Court of Military Appeals, as this Court has, that the First Amendment freedom of speech applies to the military only to the extent that the speech does not directly prejudice good order and discipline, that limited standard of freedom must be vigorously guarded as a precious constitutional right. Strictly speaking, every statement critical of a military program or policy can have an effect on attitudes and morale, which can arguably affect in turn order and discipline. Yet the argument simply cannot be accepted consistent with even a limited First Amendment freedom that military authorities can, therefore, punish all statements deemed to adversely affect "motivation" or "morale" in a general sense. For this would render meaningless even that limited freedom of speech recognized by the military as a soldier's constitutional right. Indeed, Article 134 by its terms requires prejudice to good order and discipline, not simply to a generalized "morale" of service. Order and discipline are essentially terms referring to conduct, while morale refers to thoughts and attitudes. Conduct and motivation are obviously interrelated, but the distinction is present and it must be preserved. Article 134 would be too broad, and the First Amendment too narrow, if all words and deeds of a soldier were subject to punishment on the grounds that they adversely affected the intangible morale of the service.

 The classic statement of the opposite view was expressed by Judge Latimer in United States v. Voorhees, 4 U.S.C.M.A. 509, 533 (1954):


No man willingly lays down his life for a national cause which he is led to believe is unsound or unjust. Yet implicit in military life is the concept that he who so serves must be prepared to do so. If morale and discipline are destroyed, our forces cannot be trained adequately, and the nation must necessarily fail in battle.

 The difficulty with this approach is that it proves too much. This rationale would support restriction of all dissent on war aims, even by civilians and elected officials. Yet clearly the First Amendment forbids that. To justify restrictions on military personnel that do not apply to civilians, it would be necessary to show a peculiar harm to morale and discipline specially resulting from the fact that anti-war views were expressed by a soldier rather than a civilian. While this might be possible in some contexts, the Court is of the view that no such special harm has been or could be shown in the present case. The events here in question took place on a major military installation in the United States. Plaintiffs were assigned to a hospital and a band, respectively. There was easy access and communication to the civilian world, where anti-war dissent was common and increasingly vehement at the times involved herein. Further, this approach presumes that the mere hearing of anti-war sentiments will undermine morale. It is a disservice to our military personnel to presume that they would be so easily swayed rather than allowing for the possibility that they might readily reject the folly of the views expressed and become strengthened in the view that the military course is just. Judge Latimer's view must also be appraised in light of a realistic analysis of the military role in modern warfare. In theory all must be prepared to fight and die, if necessary. But in fact large percentages of our forces perform service and support functions where the attitude of the enlisted man toward a war is of marginal importance. Further, it must be remembered that any direct disobedience to orders, refusal of duty, or interference with military operations can be properly punished under other valid provisions of the UCMJ. It is for these reasons that the Court finds it necessary to distinguish a possible effect on morale from a demonstrable effect on discipline.

 Conceding a legitimate military interest in proscribing some speech, that proscription must be narrowly drawn. ". . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." N.A.A.C.P. v. Button, 371 U.S. 415, 432-433, 83 S. Ct. 328, 338, 9 L. Ed. 2d 405 (1963). Where there is a clear danger of disorder or direct prejudice to military discipline, speech, even on political or controversial issues, can be proscribed under Article 134. The proscription must be specific and informative enough to avoid any chilling effect on speech not justifiably proscribed and also to avoid the vice of vagueness. The direct infringement of free speech thus recognized is consistent with the limited scope of First Amendment rights in the military, as discussed above, and is not unlike the infringement impliedly recognized in Tinker v. Des Moines School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), as permissible and essential to preserve the unique character of a specialized environment. It is the prejudice to order or discipline, however, rather that any characterization of "disloyalty" that justifies the restriction on free speech. A soldier certainly does not have the right to dispute the war aims of the United States when ordered to take a certain hill in the midst of combat. Here the prejudice to military discipline is clear. What is necessary is for the proscriptions to be narrowly and specifically drawn to reach such situations without chilling or curtailing the freedoms of all military personnel, as citizens, to express controversial and even militarily unpopular sentiments. *fn45"

  The "design" to promote disloyalty required by the disloyal statement specification does not aid at all in narrowing the overbreadth found there. Most statements are intended to promote some thoughts on the part of the listener, and such design or intent is implicit in most forms of human communication. If the communication itself is deemed to be disloyal, it easily follows that it was intended to promote disloyal thoughts among the listeners. Thus, the finding of the requisite intent can be, and has been, *fn46" established simply by virtue of the fact that the statement found to be disloyal was communicated to other military personnel. The intent element of the specification is thus deprived of any independent vitality and made to turn upon the finding of whether the initial statement was disloyal.

 Recognizing that the unique environment of the military necessitates good order and discipline, the requirement that any "disloyal" statement directly prejudice that good order to be punishable might go far toward redeeming the overbreadth of the proscription if it were strictly interpreted and applied, as e.g. by a "clear and present danger" standard. *fn47" "Undifferentiated fear or apprehension" however, ". . . is not enough to overcome the right to freedom of expression." Tinker v. Des Moines School District, 393 U.S. 503, 508, 89 S. Ct. 733, 737, 21 L. Ed. 2d 731 (1969). Yet, as interpreted and applied by Court of Military Appeals, this requirement for direct prejudice to good order has been allowed only a very limited scope. As long as the evidence does not "foreclose all possibility of successful promotion of disloyalty and disaffection," it is "sufficient to support a finding of reasonably direct prejudice to good order and discipline." United States v. Gray, 20 U.S.C.M.A. 63, 68 (1970). *fn48" Such application of the requirement that prejudice to good order be direct and palpable is tantamount to a per se approach justifying a finding of prejudice to good order upon a finding that a statement was disloyal and therefore encouraged disloyalty or disaffection. Having already found those terms unconstitutionally vague and overbroad, it is clear that the direct prejudice requirement now made to turn upon them must likewise fail to redeem the overbreadth.

 In addition to challenging the disloyal statement specification as overbroad on its face, plaintiffs have also challenged its validity as applied to them. The Court agrees, but will comment only briefly in light of the holding of facial overbreadth.

 Plaintiffs here uttered a statement calling for other servicemen to join them to "voice our opposition" to the war in Vietnam. They did this in off-duty hours and there is no evidence that it interfered with their duties, or with those of any other military personnel at Fort Ord. While success in promoting "disloyalty" cannot alone be determinative of prejudice to good order, there is no evidence in this record of even a tendency toward the breakdown of order. While it was indicated that Fort Ord is a basic training center, presumably including trainees eventually bound for Vietnam duty, it is unclear what implications were to be drawn from that fact.

 As indicated earlier, mere anti-war thoughts or propaganda cannot be kept from military ears simply on the ground that the soldiers will be less highly motivated because of what they hear. Motivation is too intangible a concept to suffice to meet the directness required for a prejudice to order to override the First Amendment. To proscribe speech by servicemen there must be truly direct and palpable prejudice to good military order and discipline. None was shown here. In light of this, no lengthy determination is necessary as to whether the statement here in question was, in fact, disloyal. Suffice to say that, just as the Court of Military Appeals in Gray,49 this Court is "left with an abiding conviction that it does not constitute a declaration of disloyalty to the United States."

 The preparedness of our military forces for our national defense is of utmost importance to this Court. The Supreme Court has spoken well, however, to the clash of values involved in this case:


Yet, this concept of 'national defense' cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term 'national defense' is the notion of defending those values and ideals which set this nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile. *fn50"

 Finally, this Court is aware that military law has historically recognized a proscription on disloyal statements as prejudicial to good order and discipline. *fn51" The Court is not prepared to accept, however, an argument of constitutional validity based upon historical precedent and implied construction of the Constitution by its contemporaries. *fn52" For a long period in the development of our constitutional law there was substantial doubt that the Bill of Rights applied at all to military personnel. *fn53" Those doubts have now been resolved, however, Burns v. Wilson, 346 U.S. 137, 142, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953), *fn54" and this Court, therefore, cannot accept the argument that early practice justifies the flaunting of modern and well-defined constitutional standards.


 Plaintiffs, having duly moved this Court for summary judgment for all relief demanded in their complaint, and defendants having filed a cross motion for summary judgment; and said motions having duly come on to be heard before this Court upon briefs submitted by both parties; and this Court thereafter, on December 22, 1972, having handed down its Memorandum Opinion on said motions, it is hereby ordered, adjudged and decreed that:

 (1) Plaintiffs' motion for summary judgment is granted as hereinafter provided and defendants' motion for summary judgment is denied.

 (2) The convictions of plaintiffs pursuant to a general court-martial held at Ft. Ord, California on May 20, 1968 are declared to have been obtained in violation of plaintiffs' constitutional rights as elaborated in this Court's Memorandum Opinion and to be null and void.

 (3) Defendants, their subordinates and agents, and persons acting under their authority are directed to make appropriate corrections of plaintiffs' military records to vacate and annul the convictions and sentences pursuant to said court-martial; to make provision for restoration of plaintiffs to the rank and seniority to which they were entitled on May 20, 1968 and to which they would have been entitled thereafter while on active duty had such courts-martial not taken place; and to award plaintiffs honorable discharges.

 (4) Defendants, their subordinates and agents, and persons acting under their authority are directed to pay to plaintiffs all back pay and allowances of which they were deprived by virtue of said court-martial convictions and such payments as they are entitled to under law and appropriate military regulations.

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