# Brown v. Palmer > Court of Appeals for the Tenth Circuit · October 3, 1990 · 915 F.2d 1435 URL: https://www.frixlaw.com/law-library/cases/8984775 ## Case - **Full name:** Joan BROWN Donna R. Johnson Susan Matarrese Geoffrey Parker Mary Lynn Sheetz Peter Sprunger-Froese v. Colonel James O. PALMER, Base Commander of Peterson Air Force Base, Colorado, and Colonel Eugene T.M. Cullinane, Commander, Headquarters, 3rd Space Support Wing (Afspacecom) Peterson Air Force Base, Colorado, as officers and agents of the United States Air Force, an agency of the United States of America - **Court:** Court of Appeals for the Tenth Circuit - **Decided:** October 3, 1990 - **Citations:** 915 F.2d 1435; 1990 WL 142089 - **Precedential status:** Published - **Opinion:** Dissent by Moore - **Judges:** Anderson, Baldock, Brorby, Ebel, Holloway, Logan, McKay, Moore, Seymour, Tacha - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8984775 ## How later opinions describe it (automated extraction) - applying a de novo standard of review where district court declared a state restriction on free speech unconstitutional - applying independent review where lower court declared restriction on speech unconstitutional ## Opinion text JOHN P. MOORE, Circuit Judge, dissenting: I must respectfully dissent from that portion of part II of the court’s opinion dealing with the public forum issue. I agree with the court’s general postulates, *1446 but I cannot concur with the conclusion the district court erred in holding Peterson Air Force Base was converted to a public forum at the time of the open house. To the contrary, I believe the district court correctly analyzed the facts and appropriately applied the law to those facts. The basis for my disagreement here is the majority’s failure to appreciate the significance of the broad range of activities the base commander permitted at the open house. The court has focused upon Greer v. Spock, 424 U.S. 828 , 96 S.Ct. 1211 , 47 L.Ed.2d 505 (1976), and United States v. Albertini, 472 U.S. 675 , 105 S.Ct. 2897 , 86 L.Ed.2d 536 (1985), and concluded the military does not convert a base into a public forum by the simple act of conducting an open house during which the general public is permitted access to an otherwise closed facility. As a general proposition, that is an accurate assessment of the present law. That statement, however, overlooks an important factual distinction present in this case. The district court found, as a matter of fact, the base commander did more than open the doors of Peterson Air Force Base to public visitation. As noted by the court, other “activities” were conducted during that time that were foreign to the purpose of the open house. According to the record, the Air Force Chief of Staff has taken the position that the purpose of an Air Force open house is to “provide the vital link of public awareness that is so important to the federal military forces in a democracy; ... to ensure that the public is well-informed concerning the military forces their tax dollars help to support.” Brown v. Palmer, 689 F.Supp. 1045, 1048 (D.Colo.1988). Historically, open houses have “centered around static displays of current and historic Air Force aircraft, displays and information concerning weapons carried on the aircraft, and ‘air shows.’ ” Id. Traditionally, the public has been invited to air bases to “observe the various displays and events, and ask questions of the hosting military unit about their role in the defense of our country.” Id. Open houses are conducted to “foster good relations with the surrounding civilian community.” Id. In my judgment, none of these objectives are accomplished by allowing civilians to advertise nature walks, plastic molders’ societies, religious material, and invitations to religious activities. These civilian pursuits are so foreign to the military objectives of the open house they compel the conclusion the military has intended to create a public forum. In this instance, the base was not only opened to the public, but it was also open to diverse members of the public who were permitted to advertise and present essentially private materials of their own interest to the public. The only difference between what those civilians did and what the plaintiffs did was the political content of the plaintiffs’ leaflets. I believe there is no logical conclusion other than that reached by the district court. Moreover, I do not believe the cases relied upon by this court support reversal of that conclusion. In none of the cases, beginning with Greer , did the military authority permit the base to be used by civilians for their private pursuits. In Greer , for example, an open house was not even involved, but the plaintiff wanted to enter the base to hold a political rally. Greer is not helpful because the base commander did not choose between private groups who were permitted to bring their messages to the visiting public. Indeed, I would have no trouble reading Greer to say that if the base commander had permitted others to conduct a rally, he could not have denied Dr. Spock the same right. In Albertini , the Court did not decide whether the base became a public forum. Instead, it proceeded to address the First Amendment question premised on the reasonableness of enforcing a bar order issued because of the defendant’s prior criminal activity. I do not believe the simple act of opening a military base to public visitation results in a surrender of the military’s right to control the conduct of the public who re *1447 sponds to the invitation. When, however, the military grants some private individuals the right to address the visiting public on issues having nothing to do with the military objective of the open house, the military has created a public forum. Having done so, the military cannot then exclude others from the exercise of their rights to free speech just because the military does not agree with the political content of their message. In this context, it makes no difference to me that the military did not intend to open the base to political speech. Those in charge unwittingly surrendered their right to regulate the conduct of the plaintiffs simply by granting other civilians the right to speak on subjects of their own choosing during the course of an otherwise military event. Having done so, the First Amendment does not permit the base commander to exclude others who wish to exercise the same right. Indeed, the fact that some were permitted access to the base while the plaintiffs were denied the same right is what makes United States v. Kokinda, — U.S. -, 110 S.Ct. 3115 , 111 L.Ed.2d 571 (1990), in-apposite. In Kokinda , the issue was whether a sidewalk in front of a post office is a public forum. The case did not confront the distinguishing double standard issue we face here. Thus, the quote from Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 802 , 105 S.Ct. 3439, 3449 , 87 L.Ed.2d 567 (1985) (“[t]he government does not create a public forum by ... permitting limited discourse”), relied upon by the Kokinda Court and the majority here, must be put in context. The “limited discourse” to which the Kokinda Court referred was activity which took place at another time and not the double standard conduct that occurred in this case. In short, Kokinda in no way undercuts the notion that the government cannot create a public forum for some and deny the same forum to others solely upon the content of the speech of those excluded. For the same reason, I believe Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 , 103 S.Ct. 948 , 74 L.Ed.2d 794 (1983), is also inapplicable. The issue in Perry was whether in the collective bargaining agreement a school district could grant an exclusive bargaining agent access to teachers’ mailboxes and still deny the same access to another union. Id. at 44 , 103 S.Ct. at 954 . Here again, the case did not deal with the issue before us. The Perry Court was not concerned with whether a governmental authority granted diverse groups access to an otherwise nonpublic forum. Indeed, the Court held the school district had not opened its mailboxes to “indiscriminate use by the general public.” Id. at 47 , 103 S.Ct. at 956 . Thus, the contract granting the recognized bargaining agent access did not change the mailboxes into public fora. “We believe it is more accurate to characterize the access policy as based on the status of the respective unions rather than their views.” Id. at 49 , 103 S.Ct. at 957 . No similar characterization could be made between the diverse groups granted or denied access in this case. Indeed, they all enjoyed the same status in the eyes of the Air Force. Ultimately, it is not whether Peterson Air Force Base is a public forum, but rather whether the acts of the base commander converted it into a public forum on the day of the open house. With all due respect, I do not believe it is the district court’s emphasis that is “misplaced.” I would affirm. Order Nov. 6, 1990 Before: HOLLOWAY, Chief Judge and McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY and EBEL, Circuit Judges. Appellee’s petition for rehearing and suggestion for rehearing en banc is granted. Within thirty days of the date of this order, the parties may file supplemental briefs, not to exceed twenty pages. This case will be set on the next available calendar for argument to the court en banc. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8984775. Public record. Not legal advice.