Military Reporters -

MEMORANDUM
Holland & Knight
LLP2099 Pennsylvania Avenue, N.W. Suite 100
Washington, D.C. 20006-680
Tel 202 955 3000
Fax 202 955 5564
www.hklaw.com
Charles D. Tobin
202-419-2539 charles.tobin@hklaw.com

Date: April 25, 2005
To: Sig Christenson, President Military Reporters & Editors
From: Charles D. Tobin, Deanna K. Shullman
Re: Right of Access to Courts Martial

This memo discusses the rights of the press and public to attend courts-martial. This issue has come to the fore recently in connection with a set of "Ground Rules" that journalists were required to sign if they wanted to cover the court martial of Army Sgt. Hasan Akbar at Fort Bragg, North Carolina.

I. The Press Has a Right of Access to Courts-Martial

The general public has a qualified First Amendment right of access to courts-martial. See, e.g., U.S. v. Anderson, 46 M.J. 728, 731 (Army Ct. Crim. App. 1997); U.S. v. Story,. 35 M.J. 677 (A.C.M.R. 1992); U.S. v. Travers, 25 M.J. 61, 62 (C.M.A. 1987); U.S. v. Hershey, 20 M.J. 433 (C.M.A. 1985); U.S. v. Grunden, 2 M.J. 116 (C.M.A. 1977). Like access to court proceedings generally, the right of access to military proceedings allows the press - and indeed the public - to oversee the proper functioning of government and provides enhancement to the basic fairness of the proceeding that is essential to public confidence in the system. See, e.g., Anderson, 46 M.J. at 731 n. 2.

Consistent with these constitutional principles, the Manual for Courts-Martial United States, which govern procedure in all courts-martial proceedings, provide for access to the public to these proceedings. See Manual for Courts-Martial United States, at RCM 806 (2000) (providing that "courts-martial shall be open to the public"). However, the right of access is not absolute. Rather, the Manual for Courts-Martial says:

In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may reasonably limit the number of spectators in, and the means of access to, the courtroom, exclude specific persons from the courtroom, and close a session; however, a session may be closed over the objection of the accused only when expressly authorized by another provision of this Manual.

Manual for Courts-Martial United States, at RCM 806(b)(2000).

The military does not, however, have unbridled authority to close a court-martial proceeding. As with civilian courts, the closure of a military tribunal requires application of a stringent three-part test in order to pass constitutional scrutiny.

First, the party seeking closure must advance an overriding interest that is likely to be prejudiced.

Second, the closure order must be narrowly tailored to protect that interest.

Third, the trial court must consider reasonable alternatives to closure.

E.g., Anderson, 46 M.J. at 731-32 (citing Press-Enterprise Co. v. Superior Ct. of California, 464 U.S. 501 (1984)).

In ordering closure of any or all of a proceeding, the military court must make its findings on the record in order to facilitate review of any closure order. Id. (finding that military judge abused his discretion in closing court-martial without offering explanation for decision, without narrowly tailoring decision, and without considering alternatives to closure); Hershey, 20 M.J. 433 (proceeding cannot be closed based upon counsel proffer where there is no other evidence that closure was necessary to protect compelling interest).

II. The Military Cannot Place Unconstitutional Restrictions on the First Amendment Right of Access to Courts-Martial.

Journalists covering the Akbar court martial at Ft. Bragg were presented with a one-page set of "Ground Rules" that they were required to sign as a condition to access. The document contained a number of provisions. Among these provisions, the journalists were forced to agree that:

They will not talk to anyone on base to conduct "man-on-the-street" interviews;

They cannot ask legal advisors in the media room questions that require them to speculate about the trial's outcome.

The Ground Rules expressly indicate that "failure to sign" them is "grounds for not being allowed access to the U.S. military installation" and, thus, to the court-martial. The Ground Rules further state that violation will result in the journalist's and their organization's loss of access for the remainder of the Akbar trial.

Forced agreements like these, presented as a condition for getting into a proceeding, impermissibly circumvent the procedures set forth in precedent for closing off access to a court martial. By requiring agreement as a condition to access, the military effectively denies entry to anyone unwilling to agree to the conditions.

In other contexts, the courts have not permitted the Executive Branch to force a citizen to give up a constitutional right in order to avail himself of a right, benefit, or privilege. See e.g., Elrod v. Burns, 427 U.S. 347, 360 (1976) (government may not condition retention of employment on agreement with in-party's political view); Perry v. Sindermann, 408 U.S. 593, 597-98 (1972) (government may not condition retention of employment upon the employee's sacrifice of his First Amendment freedoms). To allow the government to condition the exercise of an individual's rights in this regard would allow the government to achieve indirectly what it could not achieve directly. Sindermann, 408 U.S. at 597.

In requiring an agreement as a condition for journalists to exercise their First Amendment right of access to courts-martial, the military makes an end-run around the mandatory procedures for closing off access. The agreement cuts out those journalists who refuse to agree to its terms, rather than - as the First Amendment precedent compels - forcing the military to establish an overriding reason, narrow tailoring, and no alternatives to closure.

Moreover, the restrictions themselves are unconstitutional attempts by the government to discriminate against speech in a content-based, viewpoint- discriminatory manner. Though military bases traditionally are not "public forums" under First Amendment law - and the government's latitude in regulating speech on a base therefore is significantly wider than with other types of forums - restrictions nonetheless must be either: (1) reasonable, content-neutral restrictions on speech (i.e., time, place, and manner restrictions); or (2) viewpoint neutral, content-based restrictions on speech. M.N.C. of Hinesville, N.C. v. U.S. Dept. of Defense, 791 F.2d 1466, 1474 (11th Cir. 1986). With respect to the latter, the First Amendment requires invalidation of content-based restrictions that are efforts to suppress expression "merely because public officials oppose the speaker's view." Perry Educ. Assoc. v. Perry Local Educators' Assoc., 460 U.S. 37, 46 (1983); Greer v. Spock, 424 U.S. 828 (1976).

Exclusion or suppression of an entire category of speech may be considered viewpoint neutral and therefore not in violation of the First Amendment. This is so when there is no evidence that a particular message is being targeted and excluded while other messages on the same topic are allowed. E.g., Greer, 424 U.S. at 839 (upholding policy banning political speeches because it was "objectively and evenhandedly" applied). By contrast, restrictions on speech based upon the identity of the speaker are placed in the second category above and are subject to the same "viewpoint neutral" limitation as content-based restrictions on speech. Cornelius v. NAACP Legal Defense Educational Fund, Inc., 473 U.S. 788 (1985). Accordingly, when a particular person or class of persons is prohibited from speaking, whether the rule or regulation proscribing the speech is constitutional depends upon whether the evidence demonstrates that the person or class of persons is being silenced because the officials imposing or enforcing the ban disagree with the person's view.

The Akbar restrictions prohibited journalists from conducting interviews of any people on the base. They also prohibited journalists from asking legal advisors questions about the possible the outcome of the trial. These restriction on speech apply only to journalists. There is no indication that members of the public generally must refrain from speaking to others while on base without permission or that the public is precluded from asking people's opinion about cases before the courts-martial. Rather, it seems the press is being singled out because of its status. This is a content-based form of restriction of speech. The forced agreement with the press therefore should not pass muster for the types of restrictions permitted in non-public government forums.

CONCLUSION:

The press and the public enjoy a First Amendment right of access to courts-martial. That right can only be curtailed under a strict test, which requires the court to demand exacting proof and to make findings on the record. The restrictions under the Ground Rules presented to journalists covering the Akbar trial bypass the Constitution completely, as no hearing is held and no findings are made before someone loses access to a proceeding. Apart from their impermissible impact on the right of access, these restrictions also are viewpoint discrimination in contravention of the government's ability, under the First Amendment, to regulate speech in non-public forums like military bases.

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