In spring 2007, an activist group sought to hold an anti-war demonstration at the United States Military Academy at West Point, located in Orange County, New York. The occasion was the annual graduation ceremony featuring Vice President Cheney, who would address the cadets when public opinion was souring on the Iraq war. West Point denied the permit application, and the trial court denied the plaintiff's request for a preliminary injunction. This week, the Second Circuit affirmed that denial.
The case is Sussman v. Crawford, decided on December 2. I represented the plaintiffs in this case. It's not everyday that people sue under the First Amendment to protest at a military installation. The case law in this area is sparse in the Second Circuit. The Court of Appeals took the opportunity to confirm that nonpublic forums like West Point are no place for political demonstrations even though this is government property has enough space for any demonstration.
In the mid-1970's, the Supreme Court sharply limited free speech rights at military installations. That case was Greer v. Spock, 424 U.S. 828 (1975), which held that the military has discretion to deny speech and public assembly permits if they would interfere with military readiness and morale. In Sussman v. Crawford, the plaintiffs argued that West Point is not comparable to Fort Dix or other installations because West Point is also a college campus and a cultural center, with a large football stadium, an auditorium that hosts public lectures and concerts and a hotel that the public can frequent. They also argued that the planned demonstration for Cheney's speech, about a mile or so away from the graduation ceremony (but still on West Point property), would not interfere with the ceremony or cause any security problems.
The Court of Appeals rejected these arguments, holding that "While the West Point reservation differs from some other military installations in that it houses an Academy and often invites speakers to address its cadets, we believe that the presence of the Academy within the cantonment is not sufficient to convert West Point into a public forum." The Court also held that West Point's speech policy was not arbitrary applied.
The Second Circuit resolved some noteworthy procedural issues here. First, after the trial court denied the injunction, the plaintiffs sought to stay that denial in the Court of Appeals in May 2007. The Court of Appeals denied that application in a published opinion, 488 U.S. 136 (2d Cir. 2007). The plaintiffs then took a formal appeal from the district court's ruling, giving rise to the opinion decided on December 2. Law of the case principles do not squarely apply here since the first published opinion was an interlocutory ruling, but the Court of Appeals still reviewed the issues while taking into account its earlier opinion. The lesson here is that appealing a district court opinion in the wake of an interlocutory ruling may lead to the same result unless something happened in the interim (new facts or new case law) that would change the outcome.
In addition, the plaintiffs also challenged the procedural rules governing the resolution of speech and public assembly permits at West Point. That issue was not resolved in the interlocutory ruling in May 2007. But West Point revised those rules to avoid any constitutional question. Under Lamar Adver. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004), the revised rules moot the challenge to the old rules. Lamar Advertising involved the enactment of a municipal ordinance which changed the speech procedure under review. That kind of legislative change almost guarantees that the old rule will not come back. Prior to Lamar Advertising, the Second Circuit generally held that a new rule does not moot out a challenge to the old provision because the defendant is then free to bring back the old rule after the lawsuit is over. In Sussman v. Crawford, the reasoning of Lamar Advertising has been extended to regulations enacted by a government entity such as West Point as opposed to a law enacted by a City Council or Town Board.