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BRYANT v. SECRETARY OF THE ARMY

September 22, 1994

LARRY W. BRYANT, Plaintiff,
v.
SECRETARY OF THE ARMY, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 INTRODUCTION

 Before the Court in the above-captioned case are the parties' cross-Motions for Summary Judgment. On June 1, 1994, the Court held a Hearing to address the issues raised therein, which include, inter alia, the Plaintiff's First Amendment challenges to an Army regulation governing the publication of Civilian Enterprise Newspapers. The parties agree that no material issues of fact remain in dispute and that this matter is thus ripe for decision.

 Accordingly, upon careful consideration of the oral arguments of counsel on the parties' Motions for Summary Judgment, their respective oppositions thereto, as well as their replies, and upon consideration of the applicable law, the Court has determined that both parties' Motions must be granted, in part, and denied, in part, as hereinafter provided.

 More specifically, the Court finds that the Civilian Enterprise Newspapers at issue in this case are not public fora, and that the content-based restrictions embodied in the governing regulations are eminently reasonable in light of the purposes for which these newspapers were intended. The Court thus finds no merit to the Plaintiff's First Amendment claims that the Army regulation in question implicates impermissible content-based restrictions, either facially or as applied. As a result thereof, judgment must be entered in favor of the Defendant on all but one issue in this case.

 Notwithstanding the deference owed to military regulations challenged on constitutional grounds, the Court finds that a small segment of the regulation in question does indeed contain an impermissible viewpoint-based restriction that violates the First Amendment and must accordingly be invalidated. In all other respects, however, the Court finds no violations of the First Amendment on the facts and circumstances presented by this case.

 BACKGROUND

 The Plaintiff in this case, Larry Bryant, is a civilian employee of the Department of the Army. As the Associate Editor of the Army News Service, he works in the Office of the Chief of Army Public Affairs. See Plaintiff's Motion for Summary Judgment at 1. In the instant suit, Mr. Bryant alleges that the Defendant, the Secretary of the Army, has violated the First Amendment in connection with the Army's publication of Civilian Enterprise Newspapers ("CENs" or "CE Newspapers").

 More specifically, the Plaintiff's Complaint arises primarily as a result of the Army's decision not to publish a number of letters he has written to the editors of two such CENs: The Pentagram and The Stripe. The Pentagram serves the U.S. Army Military District of Washington and The Stripe serves the Walter Reed Army Medical Center.

 Over the past few years, the Plaintiff has submitted several letters for publication in both newspapers. In these letters, Mr. Bryant has expressed, inter alia, his view that homosexuals should be allowed to serve in the military. He has also sought evidence concerning Unidentified Flying Objects ("UFO's") and UFO incidents. All of the letters Mr. Bryant submitted for publication have been rejected, with the exception of one letter concerning homosexuals in the military which was published in the August 13, 1992 edition of The Pentagram.

 The Plaintiff now challenges both the Army's failure to publish his other letters and the Army regulation governing publication of the CENs -- alleging unconstitutional violations of the First Amendment, both facially and as applied. In many respects, then, this case largely centers on the nature of the CE Newspapers. The Plaintiff contends that they constitute a "created" or "limited" public forum to which individuals possess certain First Amendment rights of access, such as protection from government restrictions impermissibly based on content or viewpoint. The Government, however, contends that the CEN is not a public forum, and indeed is more properly characterized as "Government speech," thus not implicating any First Amendment rights at all on the part of the Plaintiff or any other member of the public. Before analyzing the issues presented, however, it is necessary to briefly examine both the nature of CE Newspapers and the regulations governing their publication.

 The Applicable Regulation: Army Regulation 360-81

 The record in this case reveals that CE Newspapers are published by commercial civilian publishers pursuant to contracts with individual military bases. The writers and editorial staff are members of the military whose salaries are paid by the Department of Defense -- but the CENs are primarily financed through the sale of paid and classified advertising. The papers are ultimately distributed to both civilian and military audiences.

 The CENs are officially part of the Army's Command Information Program -- and are governed by Army Regulation ("AR") 360-81, "Command Information Program," which implements Department of Defense Instruction 5120.4, "Command Newspapers and Civilian Enterprise Publications." It is this regulation that the Plaintiff challenges as unconstitutional, both on its face and as applied.

 AR 360-81 defines the Command Information ("CI") Program's mission as follows:

 
to provide timely, accurate, truthful two-way communications between commanders and internal audiences to strengthen deterrence and the Army's war-fighting capabilities. Subjects addressed include the soldier, the unit, the Army, United States history, Government, and traditions, and topical items of common interest.

 See Defendant's Statement of Material Facts as to Which There is No Genuine Issue ("SMF") at 1, AR 360-81, Ch. 1, P 1-5.a.

 In order to achieve these objectives, the regulation is designed to generate information that is both "pertinent" and "relevant" to the Command:

 
Material from non-Army sources should not be used unless the information is pertinent and relevant to the command. Information is pertinent to a command when it has a significant impact on the command's mission or personnel. It is relevant if it is connected to the mission or personnel.

 AR 360-81, Ch. 1, ยง 1-7.i (emphasis in original). The audience targeted by the CI program is also addressed by this regulation which further provides that:

 
CI is aimed at a variety of internal audiences. Among them are soldiers (active duty and Reserve Components), families, civilians and local national employees, retirees, U.S. Military Academy (USMA), and Reserve Officer Training Corp (ROTC) cadets, and civilian aides to the Secretary of the Army.

 See Plaintiff's Statement of Genuine Issues of Disputed Fact ("SGI") at 1; AR 360-81.

 
(1) Commentaries (personal opinions) and editorials (command position) will be encouraged on subjects relevant to the command. When appropriate, the author will be identified.
 
(2) Commentaries and editorials may not extend to material not in consonance with policies of the Department of the Army.

 AR 360-81, Ch. 2, Section III, 2-12(j).

 At the heart of this dispute is the Plaintiff's contention that this regulation, AR 360-81, entails both content and viewpoint-based censorship, thereby entitling Mr. Bryant to summary judgment on his First Amendment claims. In opposition, the Government maintains that the Plaintiff's letters were not published as a result of an army determination that the information presented therein did not best meet the objectives of the Command Information Program. Moreover, the Defendant claims that the regulation in question is an entirely reasonable way for the army to implement the mission of the CI program - and that the military may thus edit its communications in the CENs as it sees fit.

 Upon consideration of these issues, the Court finds that the CENs are not public fora and that, as such, there is no question that the vast majority of AR 360-81 can withstand judicial scrutiny under the applicable standard of review. However, to the limited extent that AR 360-81 permits viewpoint-based discrimination, the Court finds that even the deference owed to military regulations cannot justify upholding what the Court deems a facial violation of the First Amendment.

 Essentially, the Plaintiff's claims can be roughly characterized as follows:

 
(1) the regulations contain impermissible content-based restrictions;
 
(2) the rejection of Mr. Bryant's letters constitutes an unconstitutional application of this content-based discrimination; and
 
(3) the regulations are facially invalid because they permit viewpoint-based discrimination in violation of the First Amendment.

 As to the first issue, the Court finds no merit to the Plaintiff's contention. In view of the Court's determination that the CENs are non-public fora, the applicable standard of review for content-based restrictions requires that they be "reasonable in light of the purposes" for which the forum is designed. In the instant case, the content-based restrictions entailed in AR 360-81 are eminently reasonable in light of the military's purpose in establishing and maintaining civilian enterprise newspapers, and the Court thus finds no First Amendment violation on this ground.

 As to the second issue, the Court similarly finds no evidence to support the plaintiff's claim that AR 360-81 has been unconstitutionally applied by the Army in refusing to publish Mr. Bryant's letters. To the contrary, the Court finds that the Army's explanations for rejecting these letters easily survive the reasonableness test under the facts and circumstances presented by this case.

 As to the third issue, however, the Court must agree with the Plaintiff that the regulations in question do permit viewpoint-based discrimination in violation of the First Amendment. It is not entirely clear how much of AR 360-81 the Plaintiff is seeking to invalidate on this ground -- but the Court has examined the regulation and finds that only a small section of the regulation entails a facial violation of the First Amendment. Specifically, the Court finds that section (2) of AR 360-81, Section III, Ch. 2-12 - j (2):

 
"Commentaries and editorials may not extend to material not in consonance with policies of the ...

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