# Brown v. Glines > Supreme Court of the United States · January 21, 1980 · 444 U.S. 348 URL: https://www.frixlaw.com/law-library/cases/9427748 ## Case - **Full name:** BROWN, SECRETARY OF DEFENSE, Et Al. v. GLINES - **Court:** Supreme Court of the United States - **Decided:** January 21, 1980 - **Citations:** 444 U.S. 348; 100 S. Ct. 594; 62 L. Ed. 2d 540; 1980 U.S. LEXIS 68 - **Precedential status:** Published - **Opinion:** Dissent by Stewart - **Judges:** Powell, Burger, White, Blacemun, Rehnquist, Brennan, Stewart, Stevens, Marshall - **Cited by:** 230 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/9427748 ## How later opinions describe it (automated extraction) - stating that a "politically-disinterested military [and] good order and discipline ... are compelling governmental interests” - holding that an Air Force regulation prohibiting distribution of petitions on base without permission did not violate the First Amendment ## Opinion text Mr. Justice Stewart, with whom Mr. Justice Brennan joins, dissenting. The Department of the Navy used to have a regulation mandating that every communication to a Member of Congress from anybody in the Navy had to be forwarded through official channels, if the communication “affect [ed] the Naval Establishment.” See 97 Cong. Rec. 3776 (1951). Congress was informed about this regulation in 1951, and its reaction was to enact a statute that currently reads: “No person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States.” 10 U. S. C. § 1034 . Today, the Court holds that this statute does not in any way protect the circulation by servicemen on United States military bases of petitions addressed to Members of Congress. Specifically, the Court holds that the statute does not apply to a military regulation requiring that the content of petitions addressed to Members of Congress be precleared, 1 even when *375 the petitioning activity occurs on a base located in a noncombat area in time of peace. To reach this result, the Court necessarily concludes either that petitions are not “communication [s] ” within the meaning of § 1034 or that the compelled prescreening of petitions is not a “restriction]” within the meaning of that statute. Since, in my view, each of these conclusions is at odds with the express language of the statute and with its legislative history, I respectfully dissent. Section 1034 protects those servicemen who “communi-cat[e]” with Members of Congress. As the Court necessarily acknowledges, a letter bearing one signature is a “communication” protected by § 1034. Nothing in logic would suggest that such a letter forfeits the statute’s protection simply by acquiring additional signatures. Accordingly, reason would indicate that petitions are a form of “communication” protected under § 1034: they are no more than letters bearing many signatures. Moreover, it seems clear that a serviceman “communicates’ with his Congressman just as much when he signs a letter drafted by a third person as when he writes and signs that letter himself. Yet the Court’s opinion appears to conclude that petitions are not “communications” within the meaning of § 1034. To reach this conclusion, the Court relies on the statute’s legislative history. As the Court points out, the specific situation brought to the attention of Congress in 1951 was that of a *376 serviceman who had been threatened with court-martial proceedings if he sent a letter to his Congressman without prior command approval. By enacting the predecessor of § 1034, Congress made clear that it wanted to prohibit this kind of restraint. But the legislative history cited by the Court shows that the purpose of the law was considerably broader than simply “to permit any man who is inducted to sit down and take a pencil and paper and write to his Congressman or Senator.” 97 Cong. Rec. 3776 (1951). The historic matrix of the law contains no suggestion that Congress intended § 1034 to cover no more than a letter written and signed by one individual person. 2 If anything is to be drawn from § 1034’s history, it is that Congress intended to protect more than such single-signature letters. A precise and particularized problem was brought to the attention of Congress in 1951, one that could easily have been remedied by a similarly circumscribed solution. Congress chose instead to write broadly so as to accord protection to all “communications” sent by military personnel to Members of Congress. Clearly, the legislative purpose was to cover the myriad of ways in which a citizen may communicate with his Congressman. By limiting the scope of § 1034 to the particular case brought to the attention of Congress in 1951, the Court, I think, reads the legislative history as mistakenly as it reads the language of the statute itself. 3 *377 The Court’s opinion can be interpreted alternatively to hold that the regulations at issue do not constitute a “restrict[ion]” within the meaning of § 1034. That position also gives the statute an unjustifiably narrow scope. An absolute ban of petitions or petitioning activity on military bases would obviously constitute a “restrict[ion].” 4 The regulations before us amount to such a ban, but with one difference. They permit a limited exception for petitions whose content has been precleared by command authority. This kind of exception, however, is precisely the type of “restrict[ion]” on the free flow of communication between servicemen and Congress that the law prohibits. As stated by the law’s sponsor, a requirement that a serviceman send his communications through channels “is a restriction in and of itself.” 97 Cong. Rec. 3776 (1951). That the preclearance regulations at issue here restrict the free flow of communication between servicemen and Members of Congress could not be more clearly demonstrated than by the facts presented in Secretary of Navy v. Huff, post, p. 453. There, servicemen invoked the preclearance procedures contained in similar regulations, but were denied permission to collect signatures on several petitions addressed to Members of Congress, which denials the Government now concedes were improper. 5 Not only did the prescreening procedure unjustifiably prevent the circulation of those particular petitions; it also necessarily discouraged further collective and individual *378 attempts by those servicemen to communicate with Congress. It seems clear to me that the application of the challenged regulations in this case violated the provisions of § 1034. Under that statute only those rules that prohibit “unlawful” communications or that are “necessary to the security of the United States” may be enforced. No claim is made here that the communicative content of any of the respondent's petitions was in any way “unlawful.” Moreover, no contention is made that the respondent disclosed anything secret or confidential in the proposed petitions to the Members of Congress. 6 And surely it could not conceivably be argued that, as a general proposition, a regulation requiring the preclearance of the content of all petitions to be circulated by servicemen in time of peace is “necessary to the security of the United States.” For these reasons, I believe that the judgment of the Court of Appeals should be affirmed-. 7 Accordingly, I respectfully dissent from the opinion and judgment of the Court. On their face, the regulations at issue strongly suggest that the content of prospective petitions may be considered by the commanding officer in determining whether or not to grant servicemen permission to circulate the documents. Air Force Reg. 35-15 (3) (a) (1970) requires that, in order to obtain permission to circulate any petition, a serviceman must submit to his commander “[a] copy of the material with a proposed plan or method of distribution or posting. . . The regulation further provides that permission to distribute will be denied where the commander determines that “a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission, would result.” Finally, the regulation admonishes the commander that “[distribution or posting may not be *375 prohibited solely on the ground that the material is critical of Government policies or officials.” (Emphasis added.) Any doubt that the regulations involved here permit the appropriate commanding officer to review the contents of prospective petitions is dispelled by what occurred in Secretary of Navy v. Huff, post, p. 453. There, a commanding officer, acting under the authority of similar regulations, prohibited the circulation of petitions because they contained “gross misstatements and implications of law and fact as well as impugning by innuendo the motives and conduct of the Commander-in-Chief of the Armed Forces. . . .” It is worth noting that nothing in § 1034’s legislative history indicates that when Congress drafted that provision it had in mind the slightly different wording of 5 U. S. C. § 7211 (1976 ed., Supp. II), which explicitly protects the petitioning rights of federal civil servants. In support of its conclusion, the Court states: “The unrestricted circulation of collective petitions could imperil discipline. We find no legislative purpose that requires the military to assume this risk and no indication that Congress contemplated such a result.” Ante, at 360. Contrary to the Court’s implication, a reading of § 1034 to include petitions within that statute’s ambit would not leave the military without the ability to protect its vital interests. The statute expressly permits the *377 promulgation of rules regulating communicative conduct if “necessary to the security of the United States.” Without some activity aimed at the acquisition of signatures, no petition could ever be created. Permission was denied to circulate a petition to Senator Cranston opposing the use of military personnel in labor disputes and a petition to Representative Dellums requesting amnesty for Vietnam war resisters, even though the requesters had stated that they would circulate the petitions out of uniform, during their off-duty hours, and away from the work areas of the base. Congress included the “necessary to the security” exception in § 1034 so that the Government could prohibit servicemen from imparting “secret matter” in their communications with Congress. 97 Cong. Rec. 3877 (1951). The respondent was demoted to the standby reserves because he had failed to submit for preclearahee a petition addressed to the Secretary of Defense as well as petitions separately addressed to various Members of Congress. While the latter petitions were protected by 10 U. S. C. § 1034 , the former was not. I would nonetheless affirm the judgment of the Court of Appeals. There is no reason to believe that the respondent suffered the demotion only for his circulation of the petition addressed to the Secretary of Defense. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9427748. Public record. Not legal advice.