Greer v. Spock, 424 U.S. 828 (1976)

MR. CHIEF JUSTICE BURGER, concurring.

I concur in the Court’s opinion, and also in Part III of MR. JUSTICE POWELL’s concurring opinion.

Permitting political campaigning on military bases cuts against a 200-year tradition of keeping the military separate from political affairs, a tradition that, in my view, is a constitutional corollary to the express provision for civilian control of the military in Art. II, § 2, of the Constitution.

As MR. JUSTICE POWELL notes, however, Fort Dix Reg. 210-27 -- at least to the extent that it permits distribution of some political leaflets on military bases -- cannot be justified as implementing this policy of separation or even as consistent with our tradition of separation. I agree that the regulation, insofar as it permits a military commander to avert a clear threat to the loyalty, discipline, or morale of his command, is justified by the requirements of military life and the mission of the Armed Forces. But a commander could achieve this goal in another way as well, by banning the distribution on base of all political leaflets; the hard question for me is whether the Constitution requires a ban on all distributions in order to preserve the separation of the military from politics. Although there are dangers in permitting any distribution of political materials on a military base, those dangers are of less magnitude and narrower in scope than the dangers involved in requiring the military to permit political rallies and campaigning on a base; the risk that soldiers will become identified with a particular candidate is, for example, less when a leaflet is handed out than when meetings or political rallies are held. The differences are substantial enough that the decision whether to permit conventional political material to be distributed is one properly committed to the judgment of the military authorities -- whether or not they have exercised that judgment wisely in promulgating the regulation before us.

I would add only a note of caution. History demonstrates, I think, that the real threat to the independence and neutrality of the military -- and the need to maintain as nearly as possible a true "wall" of separation -- comes not from the kind of literature that would fall within the prohibition of Reg. 2127, but from the risk that a military commander might attempt to "deliver" his men’s votes for a major-party candidate. This record, as the Court notes, presents no issue of discriminatory or improper enforcement, but that should not be taken as an indication that the issue is not one of serious dimensions. It is only a little more than a century ago that some officers of the Armed Forces, then in combat, sought to exercise undue influence either for President Lincoln or for his opponent, General McClellan, in the election of 1864.

1. I agree with the Court that the holding today is not inconsistent with our decision in Flower v. United States, 407 U.S. 197 (1972). We stressed there that the area in which the petitioner had distributed leaflets was an "`important traffic artery’" in the city of San Antonio, equivalent in every relevant respect to a city street. Under the circumstances, the exercise of First Amendment activities along the thoroughfare was not incompatible with the neutrality or the disciplinary goals of the base proper. Fort Dix, in contrast, is a discrete military training enclave in a predominately rural area.

2. Fort Dix Reg. 2126 (1968) prohibits "[d]emonstrations, picketing, sit-ins, protest marches, political speeches and similar activities." It is not clear whether "similar activities" include the distribution of leaflets with a partisan political content. I find it difficult to draw a principled distinction, in terms of the neutrality interests outlined below, between a small rally, a "street walking" campaign by a candidate, and the handing out of campaign literature by a candidate or his supporter. Therefore, I will assume for purposes of this discussion that Reg. 2126 applies to all partisan activity.

3. Of course, if the base authorities were to permit any candidate or his supporters to engage in personal politicking on the base, the interest in military neutrality would then require that all candidates and their supporters be allowed. The base authorities cannot select among candidates and permit the supporters of some to canvass the base without engaging in improper partiality. There is no indication in the record, however, that the Fort Dix authorities ever have permitted partisan appeals to take place on the base.