07-2171-cv
`Sussman v. Crawford
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`UNITED STATES COURT OF APPEALS
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`FOR THE SECOND CIRCUIT
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`__________________
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`August Term, 2008
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`(Argued: October 29, 2008 Decided: December 2, 2008)
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`Docket No. 07-2171-cv
`______________________
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`MICHAEL H. SUSSMAN, BENNETT WEISS, MAURY KNIGHT, AND DEMOCRATIC ALLIANCE OF
`ORANGE COUNTY,
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`— v .—
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`Plaintiffs-Appellants,
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`BRIAN A. CRAWFORD, GARRISON COMMANDER, AND UNITED STATES MILITARY ACADEMY AT
`WEST POINT,
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`_________________
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`Defendants-Appellees.
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`Before:
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`WALKER, B. D. PARKER, AND RAGGI, Circuit Judges.
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`__________________
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`Appeal from a judgment of the United States District Court for the Southern District of
`New York (Brieant, J.). We AFFIRM.
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`__________________
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`STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP, Chester, N.Y., for
`Appellants
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`MARA E. TRAGER, Assistant United States Attorney (Jeannette A.
`Vargas and David S. Jones, Assistant United States
`Attorneys, on the brief), for Michael J. Garcia, United
`States Attorney, Southern District of New York, for
`Appellees
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`__________________
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`PER CURIAM:
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`Appellants, three individuals and the Democratic Alliance of Orange County (collectively,
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`the “Alliance”), comprise a group of political activists who oppose the administration’s foreign and
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`domestic policies. Since May 2004, the Alliance has held marches and rallies protesting
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`administration spokespersons invited to speak at the Commencement ceremonies at the United States
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`Military Academy at West Point, a federal military installation. In early April 2007, the Alliance
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`learned that Vice President Richard Cheney was slated to speak at West Point’s Commencement on
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`May 26, 2007, and thereafter sent a letter to West Point on April 16, seeking permission to protest
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`within West Point’s gates (the “cantonment”). Garrison Commander Colonel Brian A. Crawford
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`(“Crawford”) sent a response to this letter on May 14, twelve days prior to Commencement, denying
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`the Alliance’s request. In his letter, Col. Crawford clarified the application of the West Point speech
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`policy, noting that West Point has never permitted “protests or demonstrations . . . inside the gates
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`of the installation” and that such demonstrations were inconsistent with the “military mission and
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`[could] detract from the good order, discipline, security, morale, or loyalty of the Soldiers” working
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`there. He further explained that he had determined that there was “no safe way for up to 1000 people
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`to assemble in any area on the military reservation on May 26, 2007 to protest the appearance of the
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`Vice President of the United States at the graduation ceremony that morning without compromising
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`the safety of our residents, our graduation visitors, and the protesters themselves.”
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`On May 15, 2007, the Alliance brought an action in the District Court for the Southern
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`District of New York claiming that West Point’s USMA Regulation 27-2 (the “2004 Speech Policy”)
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`violated the First Amendment, and sought both a preliminary injunction requiring West Point to
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`permit its protest within the cantonment at the 2007 Commencement and a permanent injunction
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`striking down the 2004 Speech Policy. The District Court (Brieant, J.) consolidated the motion for
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`a preliminary injunction and the trial on the merits. Finding that West Point’s denial of the
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`Alliance’s request was “supported by good faith content-neutral security concerns . . . fully
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`substantiated in the trial record,” the District Court held that West Point had not violated the First
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`Amendment. The court denied the Alliance all relief and dismissed its complaint.
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`The Alliance subsequently filed an emergency motion in this Court to stay the District
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`Court’s judgment, which would have had the effect of permitting the demonstration to proceed. We
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`denied the application, concluding that the Alliance had not shown a clear or substantial likelihood
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`of success on the merits of its First Amendment claims. See Sussman v. Crawford (Sussman I), 488
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`F.3d 136 (2d Cir. 2007). We held that, as the Alliance had conceded, West Point is a nonpublic
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`forum, and that it could therefore place restrictions on speech so long as they are “reasonable and
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`not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id.
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`at 140 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)) (internal
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`quotation marks omitted). Applying Greer v. Spock, 424 U.S. 828 (1976), we determined West
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`Point’s policy prohibiting demonstrations within its gates to be “content-neutral” and not of “the type
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`of discriminatory censorship that the First Amendment seeks to prevent.” Sussman I, 488 F.3d at
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`141. We also agreed with the District Court that the proposed demonstration raised “legitimate
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`security concerns.” Id. As a result, we denied the emergency motion. We now reach the merits of
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`the Alliance’s appeal.
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`We review the District Court’s “findings of fact after a bench trial for clear error and its
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`conclusions of law de novo,” Amalfitano v. Rosenberg, 533 F.3d 117, 123 (2d Cir. 2008), while
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`taking into account, as we may, this Court’s prior decision in this case. See Rezzonico v. H & R
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`Block, Inc., 182 F.3d 144, 148-49 (2d Cir. 1999) (stating that the law of the case doctrine, which
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`posits that a court’s prior decision upon a rule of law generally should “govern the same issues in
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`subsequent stages in the same case,” is at its least binding in the context of interlocutory orders).
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`The Alliance brings substantially the same constitutional claims as those raised previously
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`in Sussman I. First, it contends that West Point’s speech policy’s “blanket ban” on demonstrations
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`within the cantonment violates the First Amendment. We abide by our decision in Sussman I and
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`reject this argument. It is well settled that “access to a nonpublic forum may be restricted by
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`government regulation as long as the regulation ‘is reasonable and not an effort to suppress
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`expression merely because officials oppose the speaker’s view.’” Bd. of Airport Comm’rs of L.A.
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`v. Jews for Jesus, Inc., 482 U.S. 569, 573 (1987) (quoting Perry Educ. Ass’n, 460 U.S. at 46). Not
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`only has the Alliance conceded that West Point is a nonpublic forum, but also the Supreme Court
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`routinely has classified military installations as nonpublic fora for First Amendment purposes. See,
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`e.g., Greer, 424 U.S. at 838; United States v. Albertini, 472 U.S. 675, 686 (1985) (citing Greer, 424
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`U.S. at 836). While the West Point reservation differs from some other military installations in that
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`it houses an Academy and often invites speakers to address its cadets, we believe that the presence
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`of the Academy within the cantonment is not sufficient to convert West Point into a public forum.
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`See Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (citing Albertini, 472
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`U.S. at 685-86).
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`The District Court correctly found that West Point’s speech policy is constitutional on its face
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`because the policy is “reasonable” and “viewpoint-neutral.” See Perry Educ. Ass’n, 460 U.S. at 46,
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`61. As we held in Perry v. McDonald, restrictions on speech in nonpublic fora must be “reasonable
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`in light of the purpose of the forum . . . and reflect a legitimate government concern.” 280 F.3d 159,
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`169 (2d Cir. 2001) (alteration in original) (internal quotation marks omitted). Although the Alliance
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`contends that the language of West Point’s 2004 Speech Policy allowed for demonstrations within
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`the cantonment, and that the Garrison Commander’s denial of its request to protest constituted
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`arbitrary application of the speech policy, this reading is not supported by the policy’s text. See
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`Sussman I, 488 F.3d at 141 n.2. Furthermore, the Alliance’s invocation of Jews for Jesus in support
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`of its First Amendment claim is misplaced for two reasons: First, although the Supreme Court
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`assumed, without deciding, that Los Angeles International Airport was a non-public forum, that
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`facility was not akin to West Point, which is a closed post that civilians may not enter as freely as
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`they would an airport. Second, West Point’s policy restricting some forms of political speech does
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`not compare with LAX’s ban on all “First Amendment activities.” 482 U.S. at 574. By contrast,
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`West Point’s speech policy restricts only some modes of communication in line with its military
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`purpose. As we held in Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 148 (2d Cir. 2004),
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`“[t]he government can reasonably exclude expression that undermines the purpose served by a
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`nonpublic forum,” with the “most common reason for such an exclusion [being] . . . that the
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`excluded expression is distracting or disruptive.” It follows that West Point’s speech policy, in
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`aiming to exclude from the reservation expression that might “detract from the good order,
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`discipline, security, morale, or loyalty of the Soldiers who are assigned to or work” there, is
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`reasonable. Sussman I, 488 F.3d at 139.
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`Moreover, we conclude that West Point’s ban on demonstrations within the cantonment is
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`viewpoint-neutral, given that no protestors have been allowed to protest there since the speech
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`policy’s enactment. The Alliance has not established that West Point has applied the policy in a
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`discriminatory fashion to the detriment of either the Alliance or others, nor has it adduced evidence
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`that West Point’s denial of its request to demonstrate was predicated on its political views.
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`The Alliance further claims that the 2004 Speech Policy’s lack of a deadline by which the
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`Garrison Commander must respond to demonstration requests invalidates the policy under the First
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`Amendment. In the interim between our prior decision in Sussman I and the present appeal, West
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`Point amended the 2004 Speech Policy such that its current policy (“2008 Speech Policy”) requires
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`the Garrison Commander to respond to a demonstration request “not later than 14 days prior to the
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`proposed date of the event, absent extraordinary circumstances and/or military necessity.” USMA
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`Reg. 27-2, 1-2(f). In light of this amendment, Appellees argue that the Alliance’s First Amendment
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`claim regarding the prior policy’s lack of a deadline is now moot. In light of West Point’s adoption
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`of the 2008 Speech Policy, which contains a deadline that will foreclose the alleged prospect of
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`arbitrarily delayed responses, there is now “no reasonable expectation that the alleged violation will
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`recur,” and “interim . . . events have completely and irrevocably eradicated the effects of the alleged
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`violation.” Lamar Adver. of Penn, LLC v. Town of Orchard Park, N.Y., 356 F.3d 365, 375 (2d Cir.
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`2004) (internal quotation marks omitted). We therefore conclude that West Point’s “voluntary
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`cessation” of the conduct in question moots the Alliance’s claim relating to the lack of a deadline.
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`Finally, the Alliance contends that the District Court erred in finding that Appellees properly
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`denied its request to demonstrate within West Point’s cantonment on Commencement day. While
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`the Alliance argues that Appellees’ denial of its demonstration request constituted an arbitrary and
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`capricious application of their speech policy, we identify no support for this contention in the record.
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`We reaffirm our previous determination that the District Court properly identified “legitimate
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`security concerns” that motivated Appellees’ denial of the Alliance’s demonstration request. See
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`Sussman I, 488 F.3d at 141. A protest (1) in the cantonment (2) consisting of at least 1,000
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`marchers, the peacefulness of whom the Alliance could not establish in advance, and (3) during the
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`We note that the Alliance’s as-applied challenge to West Point’s Speech Policy is not
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`moot, in that the Alliance’s injury with respect to West Point’s denial of its demonstration
`request is capable of repetition yet evading review. See Irish Lesbian & Gay Org. v. Giuliani,
`143 F.3d 638, 648 (2d Cir. 1998) (finding injury capable of repetition yet evading review because
`the organization had “only a few weeks between being notified that its application for a permit
`was denied and the date of the Parade in which to obtain judicial review,” and this period was
`“clearly insufficient for full litigation of [the organization’s] claims”).
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`Vice President’s speech to an audience of 20,000 people, unquestionably raises security concerns
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`that would justify West Point’s denial of the requested demonstration. Because Appellees therefore
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`cannot be said to have “applied [their Speech Policy] irrationally, invidiously, or arbitrarily” against
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`the Alliance, see Greer, 424 U.S. at 840, we hold that Appellees’ denial of the Alliance’s
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`demonstration request did not violate the First Amendment.
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`Consequently, we AFFIRM the judgment of the District Court.
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`Although the Alliance submitted at oral argument that Appellees’ rejection of
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`survive First Amendment scrutiny, because no such rejection is before the Court in this case, we
`do not consider that possibility at this time.
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