The opinion of the court was delivered by: PARKER
This proceeding presents questions for judicial determination regarding the limit and scope of constitutional rights afforded to members of the military, a subject which the courts have frequently considered in recent years. Here, three individual plaintiffs, on behalf of themselves and other members of the Marine Corps stationed at, assigned to or on duty at the Marine Corps Air Station at Iwakuni, Japan, challenge certain regulations which require prior command approval for distribution of written material by military personnel. They seek declaratory and injunctive relief against the Secretary of the Navy and certain military officers with respect to the implementation and enforcement of the regulations.
The Court is called upon to resolve cross-motions for summary judgment and, having considered the memoranda of counsel, affidavits, exhibits, oral argument, and the entire record, concludes that plaintiffs' motion should be granted in part and denied in part, for the reasons which follow.
First Amendment in the Military
In Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974), the Supreme Court left no doubt as to the guiding principle to be observed:
While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for the imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside of it. 417 U.S. at 758, 94 S. Ct. at 2563, 41 L. Ed. 2d at 459.
Despite the tone of this oft-quoted passage, many jurists have questioned this generalization and have taken the view that the mandates of the Constitution are fully applicable to the military, and would place the burden of justification upon those attempting to restrict freedom of expression. As Supreme Court Justice William J. Brennan recently noted:
. . . the First Amendment does not evaporate with the mere intonation of interests such as national defense, military necessity, or domestic security. . . . In all cases where such interests have been advanced, the inquiry has been whether the exercise of First Amendment rights necessarily must be circumscribed in order to secure those interests. Greer v. Spock, 424 U.S. 828, 96 S. Ct. 1211, 1224, 47 L. Ed. 2d 505, 523, 44 U.S.L.W. 4380, 4388 (1976) (Brennan, J., dissenting).
The view that an assertion of constitutional rights is a threat to discipline and morale in the military has been sharply questioned. Perhaps encouragement of more freedom of thought would have sparked recognition of unlawful orders in the Vietnam War, and prevented atrocities such as the massacre of civilians at My Lai. Scientific studies have also pointed out that too much discipline among service personnel can lead to increased susceptibility to brain-washing techniques while in captivity.
The military, too, are members of the American society where freedom of expression is a key value, and they are fully capable of reconciling a dissenting personal viewpoint with a duty to obey the law. This was clearly recognized by Chief Judge David Bazelon when he wrote:
. . . soldiers like other citizens can disagree with governmental policy and yet still realize that they must follow the legal requisites of that policy, including military service, until the policy is changed by democratic means. Carlson v. Schlesinger, 167 U.S.App.D.C. 325, 511 F.2d 1327, 1337 (1975) (Bazelon, dissenting).
Thus, in examining the facts and issues in this proceeding, the Court will assume that constitutionally guaranteed liberties are to be respected, unless there is a demonstrated need which justifies military restrictions on free expression.
The plaintiffs Frank L. Huff, Robert A. Falatine, and Robert E. Gabrielson allege that while stationed at the Marine Corps Air Station, Iwakuni, Japan, they were unlawfully denied permission to circulate petitions to Congress and to distribute certain printed material, both on and off base. Early in the proceedings the matter was certified as a class action "on behalf of all members of the Marine Corps stationed at, assigned to, or on duty at the Marine Corps Air Station at Iwakuni, Japan."
The plaintiffs' purpose in bringing this class action was to challenge the validity of the regulations which required them to obtain permission to distribute the written materials in question. The questioned regulations