United States v. Albertini, 472 U.S. 675 (1985)

United States v. Albertini

No. 83-1624

Argued April 15, 1985
Decided June 24, 1985
472 U.S. 675

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Syllabus

Title 18 U.S.C. § 1382 makes it unlawful to reenter a military base after having been "ordered not to reenter by any officer in command or charge thereof." In 1972, respondent received from the commanding officer of Hickam Air Force Base in Hawaii a letter (bar letter) forbidding him to reenter the base without written permission from the commanding officer or his designate. The letter was issued after respondent and a companion entered the base and destroyed Government property. In 1981, respondent, with some friends, entered Hickam again during the base’s annual open house for Armed Forces Day. Respondent’s companions engaged in a peaceful demonstration criticizing the nuclear arms race, but respondent only took photographs of the displays at the open house, and did not disrupt the activities there. The commanding officer directed the chief of the security police to have the individuals cease their demonstration, and further informed him that he believed one of the individuals involved had been barred from Hickam. Respondent and his companions were escorted off the base, and respondent was subsequently convicted in Federal District Court of violating § 1382. The Court of Appeals reversed, holding that respondent had a First Amendment right to enter Hickam during the open house because the base had been transformed into a temporary public forum.

Held:

1. Section 1382 applies to respondent’s conduct. Viewed in light of the ordinary meaning of the statutory language, respondent violated § 1382 when he reentered Hickam in 1981. Moreover, § 1382’s legislative history and its purpose of protecting Government property in relation to the national defense support the statute’s application to respondent. There is no merit to respondent’s contentions that § 1382 does not allow indefinite exclusion from a military base, but instead applies only to reentry that occurs within some "reasonable" period of time after a person’s ejection; that § 1382 does not apply when a military base is open to the general public for purposes of attending an open house; and that reentry is unlawful under § 1382 only if a person knows that his conduct violates an extant order not to return, whereas respondent did not subjectively believe that his attendance at the open house was contrary to a valid order barring reentry. And the assertion that respondent lacked notice that his reentry was prohibited is implausible, since the bar letter did not indicate that it applied only when public access to Hickam was restricted, and any uncertainty he had in this regard might have been eliminated had he sought, in accord with the bar letter, permission to reenter from the commanding officer. Pp. 679-684.

2. The Court of Appeals erred in holding that the First Amendment bars respondent’s conviction for violating § 1382 by his reentry during the open house. Flower v. United States, 407 U.S. 197, distinguished. A military base generally is not a public forum, and Hickam did not become a public forum merely because the base was used to communicate ideas or information during the open house. Moreover, regardless of whether Hickam constituted a public forum on the day of the open house, respondent’s exclusion did not violate the First Amendment. The fact that respondent had previously received a valid bar letter distinguished him from the general public and provided a reasonable ground for excluding him from the base. Nor does the general exclusion of recipients of bar letters from military open houses violate the First Amendment on the asserted ground that such exclusion is greater than is essential to the furtherance of Government interests in the security of military installations. Exclusion of holders of bar letters in such circumstances promotes an important Government interest in assuring the security of military installations. Nothing in the First Amendment requires military commanders to wait until persons subject to a valid bar order have entered a military base to see if they will conduct themselves properly during an open house. Pp. 684-690.

3. Since the Court of Appeals did not address whether, on the facts of this case, application of the 1972 bar letter to respondent was so patently arbitrary as to violate due process, this Court does not decide that issue. P. 690.

710 F.2d 1410, reversed and remanded.

O’CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 691.