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CARLSON v. SCHLESINGER

August 23, 1973

James Edward CARLSON et al., Plaintiffs,
v.
James R. SCHLESINGER et al., Defendants


Parker, District Judge.


The opinion of the court was delivered by: PARKER

PARKER, District Judge.

 This suit, brought by James Edward Carlson, Richard Randig and William C. Daniels, Jr., members of the Armed Forces of the United States, who at the time of filing were stationed in South Vietnam, challenges the constitutionality of Air Force Regulation 30-1(9) *fn1" which both grants and regulates the right of Air Force Personnel to petition the President, members of Congress and other public officials. Named as defendants are the Secretary of Defense, Secretary of the Air Force and the then Commanders of the Tan Son Nhut Air Base and Cam Ranh Bay Air Base in Vietnam. *fn2" A declaration is sought that the Air Force Regulation is in violation of the First Amendment of the Constitution and 10 U.S.C. § 1034. *fn3" Plaintiffs further request the Court to declare their arrests, stemming from incidents relating to the enforcement of this Regulation, as illegal and that their military records be expunged of any reference thereto. *fn4"

 Cross motions for summary judgment have been filed. The Court, having reviewed the record including the memoranda of points and authorities, the various affidavits and the oral argument of counsel, denies defendants' motion and grants summary judgment for the plaintiffs.

 The Factual Background

 A review of the pertinent facts is desirable.

 PLAINTIFF JAMES EDWARD CARLSON

 Plaintiff Carlson, a Navy enlisted man stationed in Saigon, went to Tan Son Nhut Air Base, and while off duty and in uniform, collected signatures on a petition to Congress calling for a cessation of American involvement in the South East Asian hostilities. This activity took place in front of the Base's main post exchange. His efforts did not result in any disturbance or incident disruptive of normal activities. Thereafter, he was arrested by Air Force Security Police for passing out "anti-war material" and jailed for several hours. He was informed that a charge, solicitation of signatures on an unauthorized anti-war petition, would be brought against him. He was later informed by Naval authorities that no charges would be brought against him and none, in fact, were instituted. Still determined to collect signatures, Carlson twice sought permission through military channels to do so. The first request, made orally to the Base Commander's assistant was rejected with the statement that he would be jailed if he persisted in his efforts. A second written request made to the Commander by a civilian lawyer, acting on Carlson's behalf, was likewise denied.

 Carlson has stated by affidavit that during his Vietnam tour of duty he was permitted to gather signatures during his off-duty hours while on Naval property.

 Carlson was subsequently honorably discharged from active military duty. Reference to the above-mentioned arrest has been maintained in a Naval Investigation Service Report, the contents of which are subject to limited disclosure to certain governmental agencies. *fn5"

 PLAINTIFF RICHARD RANDIG

 Randig, an enlisted airman, stationed at Cam Ranh Bay Air Base, while off duty, in civilian attire, and along with another serviceman, attempted to collect signatures on a similar petition at that Base. Later the two men were arrested by military police and charged with the same offense for which Carlson was detained. The petitions were confiscated. After several hours of incarceration he was informed that no further action would be taken and he was released.

 Several days thereafter Randig formally requested of the Commander permission to solicit signatures on the congressional petition under restricted and controlled conditions. The request was denied in a summary fashion. Randig received an honorable discharge and there is no evidence that any record of or reference to the arrest incident is maintained by the military.

 PLAINTIFF WILLIAM C. DANIELS, JR.

 Daniels served in Vietnam as an Air Force enlistee and was stationed at the Cam Ranh Air Base. After learning about the "anti-war" petition, he joined in Randig's unsuccessful attempt to gain the permission of Air Force authority to collect signatures. This litigant was released from active duty with an honorable discharge. Daniels is presently a college student, as are both Carlson and Randig.

 The Petition and Pertinent Regulations

 The petition which the plaintiffs attempted to circulate reads as follows:

 
"We, the undersigned American Servicemen on duty in Vietnam, wish to express our opposition to further United States military involvement by air, sea, or land forces in Vietnam, Laos, Cambodia or other countries in South East Asia. We petition the United States Congress to take whatever action necessary to assure an immediate cessation of all hostilities in South East Asia; to set a near date for final and complete military withdrawal; to insure a rapid and peaceful return of American Prisoners of War; and to assume and assert its responsibility for determination of future American Foreign policy."

 Two regulations are particularly relevant, Air Force Regulations 30-1(9) and 35-15. The former in part provides:

 
SECTION D-DISSENT AND PROTEST ACTIVITIES
 
* * *
 
(9) Right of Petition. Members of the Air Force, their dependents and civilian employees have the right, in common with all other citizens, to petition the President, the Congress or other public officials. However, the public solicitation or collection of signatures on a petition by any person within an Air Force facility or by a member when in uniform or when in a foreign country is prohibited unless first authorized by the commander.

 Reference: AFR 35-15

 The applicable provisions of Air Force Regulation 35-15 are:

 
DISSIDENT AND PROTEST ACTIVITIES
 
* * *
 
3 Specific Guidelines and Prohibited Activities:
 
(a) Possession and Distribution of Written or Printed Materials:
 
* * *

 The plaintiffs' arrest resulted from their failure to obtain Regulation 30-1(9) authorization and the subsequent denials of the request to petition were based upon the standards of Regulation 35-15, 3(a)(2). ...


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