constituted an overbroad prior restraint on protected activities and as such, were unconstitutional. The requirement of prior approval might well deter some persons from circulating legitimate petitions out of "real or imagined fear of reprisal." Id. at 1087. The Allen opinion went on to hold, however, that while pre-screening of petitions to be distributed on board ship is unconstitutional outside a combat area, the Navy may issue regulations concerning the time, place and manner of distribution.
Likewise, in this case, the military interest in restricting on-base distributions among service personnel in a non-combat area is minimal, and is outweighed by the individual's interest in free speech. Establishing lines of communication among servicemen is especially important on bases in foreign countries which may have more restricted access to civilian sources of ideas than their counterparts in the States.
Of course, as it was pointed out in the Carlson case, military officials may regulate the "time, place and manner" of First Amendment activity. 511 F.2d at 1331. The regulations in this case, however, require prior command approval for all distributions and thus unduly restrict First Amendment activity without the requisite showing of military need. Therefore, the regulations are unconstitutional as applied to on-base distribution of written materials. Regulations which allowed such activity without prior approval only during off-hours and in recreational or public areas of the base would, of course, be reasonable.
Validity of Regulations As Applied Off-Base
Off-base petitioning presents a somewhat different problem due to unique conditions prevailing for American armed service personnel stationed in foreign countries. As mentioned above, the political activities of Marines at Iwakuni are restricted by the Status of Forces Agreement
which prohibits members of the United States Armed Forces from engaging in any political activity in Japan.
Two instances of off-base petitioning are involved in this case, which the government alleges were prohibited by virtue of the Agreement. On July 12, 1974, Huff and Falatine were arrested by military police, while circulating off-base a letter to Senator Fulbright protesting United States support of South Korea. Huff was court-martialed and convicted but the charges against Falatine were dropped. In late July and early August, 1974, all three plaintiffs requested permission to distribute the same letter and a statement regarding the previous arrests. Permission was granted as to on-base distribution, but denied for off-base.
Since the political activities of the Marines are restricted by an international agreement, it is not unreasonable to require prior approval for off-base petitioning. In this area, the military has demonstrated a substantial interest in pre-screening written materials, just as they were able to demonstrate a special interest in regulating petitioning in combat zones, Carlson, supra, and in boot camp, Spock, supra. Judge John Pratt of this Court recently ruled that "the exigencies and considerations attendant to service in a foreign country" justified a prohibition against demonstrations by members of the armed forces while serving abroad. Culver v. Secretary of the Air Force, 389 F. Supp. 331, 334 (D.D.C.1975) (off-base demonstration).
The letter to Senator Fulbright was concerned with an issue which was very controversial in internal Japanese politics at that time. Two Japanese students were facing courts-martial in South Korea, and demonstrations were taking place in Japan to protest the policies of the South Korean president.
Thus, the Commanding General who denied permission for off-base distribution had a valid basis for doing so because, under the circumstances, the letter and accompanying statement could have been interpreted to be a form of interference in internal Japanese politics. The effect of the off-base prohibition was also alleviated by the fact that plaintiffs were allowed to distribute their petitions within the boundaries of the American military base, so that an alternate forum was provided in which plaintiffs could reach their fellow Marines.
The prior approval restriction on off-base distributions is constitutional because of the military's need to assure that international agreements are obeyed. Thus, it would be inappropriate for this Court to overturn plaintiff Huff's conviction or to expunge the arrest records of Huff and Falatine, who were arrested for off-base distribution without prior approval. Had they been arrested within the gates of the Marine base, or had the military officials failed to provide an alternate on-base forum for expression in this instance, then the case for expungement would have been stronger. Under the present state of the law, however, courts cannot order expungement for an admitted violation of a constitutionally valid regulation.
Counsel for the plaintiffs will submit an appropriate order in conformance with the foregoing opinion by May 26, 1976.