07-2171-cv
`Sussman v Crawford
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`August Term, 2006
`
`(Argued: May 23, 2007 Decided: May 25, 2007)
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`Docket No. 07-2171-cv
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`MICHAEL H. SUSSMAN, BENNET WEISS, MAURY KNIGHT AND DEMOCRATIC ALLIANCE OF ORANGE
`COUNTY,
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`Plaintiffs-Appellants,
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`
`
`-v.-
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`BRIAN A. CRAWFORD, GARRISON COMMANDER AND UNITED STATES MILITARY ACADEMY AT WEST
`POINT,
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`Defendants-Appellees.
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`Before: WALKER, CABRANES, Circuit Judges, and GOLDBERG1, Judge.
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`Plaintiffs move for a stay of an order and judgment of the District Court denying their request
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`for a preliminary injunction compelling defendants to allow a political demonstration inside the gates of
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`the United States Military Academy at West Point during a graduation ceremony at which the Vice
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`President of the United States will deliver a commencement address. Plaintiffs claim that the First
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`Amendment affords them a right to protest within the gates of West Point and during graduation
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`exercises.
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`Motion is denied.
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`STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP,
`Chester, NY, for Plaintiffs-Appellants.
`
`JEANETTE A. VARGAS, Assistant United States
`Attorney, (Michael J. Garcia, United States
`Attorney, and Neil M. Corwin and Mara E.
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`1 The Honorable Richard W. Goldberg, Judge of the United States Court of International Trade, sitting by
`designation.
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`1
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`Trager, Assistant United States Attorneys, on the
`brief), United States Attorney’s Office for the
`Southern District of New York, New York, NY,
`for Defendants-Appellees.
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`PER CURIAM:
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`Plaintiffs move to stay a May 18, 2007 order of the United States District Court for the
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`Southern District of New York (Charles L. Brieant, Judge) denying their request for a preliminary
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`injunction. The injunction sought by plaintiffs would compel the United States Military Academy at
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`West Point and its Garrison Commander, Colonel Brian Crawford (“Crawford”), to allow a
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`demonstration by approximately 1,000 protestors to be held inside the gates of West Point during a
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`graduation ceremony at which the Vice President of the United States will deliver a commencement
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`address. Although plaintiffs have been granted permission to conduct their protest immediately outside
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`the gates of West Point, they claim that the First Amendment affords them a right to protest within the
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`gates, in an area known as the Cantonment. As explained below, the First Amendment affords
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`plaintiffs no such right, and their motion is therefore denied.
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`I. Background
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`We recount below the relevant facts as presented by the District Court in its May 18, 2007
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`order:
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`Plaintiffs are a political organization and three individuals who oppose the policies of President
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`George W. Bush, including but not limited to the ongoing military conflict in Iraq. Defendant
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`Crawford is the Garrison Commander at the West Point Military Reservation (“the Reservation” or
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`“West Point”), where Army officers have been trained since 1802. Crawford is the official authorized
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`to receive written requests from persons desiring to protest or engage in demonstrations on the
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`Reservation, pursuant to Section 1-2g of United States Military Academy Regulation 27-2, which was
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`adopted on May 5, 2004.
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`2
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`As contemplated by Regulation 27-2, plaintiffs submitted a written request dated April 16, 2007
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`and signed by plaintiff Michael H. Sussman (“Sussman”), to stage a protest march within the West
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`Point Cantonment on May 26, 2007, the date of West Point’s graduation ceremony. The stated
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`purpose of the march is to demonstrate against the continued “American invasion of Iraq.”
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`On that date, Vice President Richard B. Cheney is scheduled to address the graduating cadets.
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`Plaintiffs contend the Vice President will use the commencement address as a forum from which to
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`deliver a political speech in support of the ongoing military conflict in Iraq.
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`Beginning in May 2004, plaintiffs have annually sponsored and conducted a march of
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`approximately 1,000 protestors entirely outside the West Point Reservation, near the Thayer Gate,
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`followed by a rally at Veteran’s Memorial Park in the Village of Highland Falls, New York, less than
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`one mile from the Thayer Gate. These activities required no permit from defendants.
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`West Point is a federal military installation which is the location of an academic institution that
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`educates military cadets over a four-year course to become officers and future leaders in the United
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`States Army. The West Point Reservation consists of approximately 16,000 acres, primarily on the west
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`shore of the Hudson River. A smaller portion of the Reservation, referred to as the Cantonment,
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`contains the campus of the Academy, the supporting facilities, cadet residence, academic halls,
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`administrative offices, the workplace of military and civilian personnel, as well as a football field where
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`the commencement exercises and the Vice President’s speech are scheduled to take place. This area is
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`accessible only by three gates—Thayer Gate, Stony Lonesome Gate, and Washington Gate—which are
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`part of a security perimeter that is manned by security personnel at all times. Members of the public are
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`not allowed to enter the Cantonment without permission, but must state a legitimate purpose, present
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`photographic identification which is subjected to a computer search, and allow an inspection of their
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`vehicle.
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`According to testimony presented before the District Court, if their demonstration were
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`permitted, plaintiffs would assemble at Veterans’ Memorial Park at 8:30 AM on May 26, 2007, with
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`approximately 1,000 other participants. The protestors plan to proceed through Thayer Gate after
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`individually presenting identification to the security guards. The protestors would then proceed around
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`a large field located in the West Point Cantonment and exit back through Thayer Gate and off the
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`Cantonment and, eventually, the Reservation. Plaintiffs estimate that they would be within the gates for
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`one hour while commencement ceremonies are going forward. They claimed before the District Court
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`that they would “provide security through designated marshals trained in crowd control and non-
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`violent demonstration tactics.” They claimed also that the demonstration would be orderly and would
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`not disrupt the graduation ceremonies. The location of the planned demonstration would place the
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`protestors approximately three quarters of a mile east of the graduation itself.
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`By a letter dated May 14, 2007, Garrison Commander Crawford denied plaintiffs’ request to
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`carry out the planned demonstration, stating:
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`West Point has never permitted protests or demonstrations of any type inside the gates
`of the installation. As a military installation, West Point exists to fulfill a specific
`military mission. Permitting protests or demonstrations inside the gates of the
`installation is inconsistent with the military mission and can detract from the good
`order, discipline, security, morale, or loyalty of the Soldiers who are assigned to or work
`at the installation.
`*
`*
`*
`*
`It is my specific mission on May 26, 2007 to ensure that graduation events,
`including the arrival and departure of the [Vice President] and his party, as well as the
`family members and friends of graduating Cadets, are accomplished in an orderly
`manner. I have determined that there is no safe way for up to 1,000 people to assemble
`in any area on the military reservation on May 26, 2007 to protest the appearance of the
`Vice President of the United States at the graduation ceremony that morning without
`compromising the safety of our residents, our graduation visitors, and the protestors
`themselves.
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`On May 15, 2007, plaintiffs initiated the instant action in the United States District Court for
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`the Southern District of New York. Plaintiffs’ complaint alleged that Crawford’s response to their
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`request to hold the planned demonstration during commencement exercises violated the First
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`Amendment; plaintiffs sought a preliminary injunction compelling defendants to allow their planned
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`demonstration on the West Point Cantonment to go forward.
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`On May 18, 2007, the District Court entered an order and judgment denying plaintiffs’ request
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`for a preliminary injunction. The District Court concluded, in particular, that a preliminary injunction
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`was not warranted because (1) defendants’ decision to deny permission for the planned protest was
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`grounded in legitimate security concerns which were “reasonable” and “entitled to judicial deference”;
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`and (2) defendants’ “content neutral regulation,” which “provides for permitting demonstrations
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`outside of the Gates [of the Cantonment] but not inside,” did not violate the First Amendment in the
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`circumstances presented.
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`Plaintiffs timely appealed the District Court’s judgment. On appeal, they raise substantially the
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`same arguments as they raised before the District Court—namely, that (1) the “blanket prohibition”
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`against speech within the West Point Cantonment violates the First Amendment’s guarantee of
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`freedom of speech; and (2) the record does not support the District Court’s finding that legitimate
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`security concerns outweigh plaintiffs’ First Amendment rights to free speech.
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`A. Standard of Review
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`II. Discussion
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`“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be
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`granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong,
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`520 U.S. 968, 972 (1997) (emphasis in original). Any party seeking a preliminary injunction “must
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`demonstrate that it will suffer irreparable harm in the absence of the requested relief.” Latino Officers
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`Ass’n v. Safir, 170 F.3d 167, 171 (2d Cir. 1999).
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`“[W]hen, as here, the moving party seeks a preliminary injunction that will affect government
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`action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be
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`granted only if the moving party meets the more rigorous likelihood-of-success standard.” Wright v.
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`Giuliani, 230 F.3d 543, 547 (2d Cir. 2000) (internal quotation marks omitted); see also Beal v. Stern, 184
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`F.3d 117, 122-23 (2d Cir. 1999). That is, plaintiffs “must establish a clear or substantial likelihood of
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`success on the merits.” Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000).
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`B. Analysis
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`We conclude that plaintiffs have not met their burden of showing a “clear or substantial
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`likelihood” that they will succeed on the merits of their First Amendment claim. Id. We reach this
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`conclusion for two reasons.
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`First, plaintiffs misunderstand the scope of the First Amendment’s protections as applied to
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`individuals seeking to engage in political protests within the confines of a military installation. Plaintiffs
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`do not contend that the West Point Cantonment, the venue where they seek to carry out their protest,
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`is a “public forum,” or even a “designated public forum,” in which a heightened level of First
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`Amendment protections would apply. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
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`37, 46 (1983); Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004). Rather, plaintiffs
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`conceded both before the District Court and before this Court that the West Point campus is a “non-
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`public forum” in which restrictions on speech are permissible “as long as [they are] reasonable and not
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`an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460
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`U.S. at 46. Indeed, the Supreme Court has specifically held that military bases are not public forums.
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`Greer v. Spock, 424 U.S. 828, 839 (1976); see also United States v. Albertini, 472 U.S. 675, 684-86 (1985)
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`(military base “is ordinarily not a public forum for First Amendment purposes even if it is open to the
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`public”). The Supreme Court in Greer held that political candidates for national office had “no
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`generalized constitutional right to make political speeches or distribute leaflets at Fort Dix,” a military
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`base. Greer, 424 U.S. at 838. The Court further held that regulations barring candidates from
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`conducting political activity on the premises of the base did not violate the First Amendment. Id. The
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`Court noted, in particular, that “the notion that federal military reservations, like municipal streets and
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`parks, have traditionally served as a place for free public assembly and communication of thoughts by
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`private citizens is . . . historically and constitutionally false.” Id.
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`We conclude that the holding of Greer is fully applicable where, as here, plaintiffs challenge
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`what they describe as a “blanket policy” of prohibiting all protests within the confines of the West
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`Point Cantonment. See id. at 839 (noting that the policy prohibiting political activity on military
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`property was “a considered [military] policy, objectively and evenhandedly applied, of keeping military
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`activities . . . wholly free of entanglement with partisan political campaigns of any kind”). Plaintiffs
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`admit that no other groups have been granted permission to demonstrate at this year’s graduation, and
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`do not dispute that no such groups have ever been granted permission to demonstrate at any past
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`graduation. Defendants’ policy of excluding protestors is therefore content-neutral and does not
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`implicate the type of discriminatory censorship that the First Amendment seeks to prevent. See id. at
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`838-39 (noting that “there is no claim that the military authorities discriminated in any way [when
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`implementing the policy],” and further noting that “no candidate of any political stripe had ever been
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`permitted to campaign there”).2
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` Plaintiffs’ argument that the planned address of the Vice President affords them a right to
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`express their political opinions within the confines of the West Point Cantonment is without merit.
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`Although the Vice President is a political figure, he is also an incumbent official in the United States
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`Government, second in rank only to the Commander-in-Chief. As such, his mere presence on campus
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`2We reject plaintiffs’ argument that the relevant United States Military Academy Regulations authorize the
`Garrison Commander to permit dem onstrations within the West Point Cantonment. Those regulations provide, in
`pertinent part:
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` In appropriate cases, the Garrison Commander . . . may give express written permission for
`demonstrations or activity on the West Point Military Reservation property outside the gates adjacent to the
`installation borders, only if the procedures below are followed.”U.S.M.A. Reg 27-2(f) (emphasis added).
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`The subsequent sections of the regulation, on which plaintiffs rely to suggest that additional authority exists to
`authorize protests within the campus gates, clearly fall under the purview of the “procedures below” and therefore do
`not support plaintiffs’ argument.
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`to address members of the United States military on their graduation day does not convert the West
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`Point campus into a public forum; nor does it serve as an open invitation for 1,000 or more outsiders to
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`engage in freewheeling and potentially distracting (if not disruptive) acts of political expression. Cf. id.
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`n.10 (“The fact that . . . speakers and entertainers had sometimes been invited to appear at [a military
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`base] did not of itself serve to convert [the base] into a public forum or to confer upon political
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`candidates a . . . right to conduct their campaigns there. . . . [Nor did it] leave authorities powerless
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`thereafter to prevent any civilian from entering [the base] to speak on any subject whatever.”).
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`Accordingly, plaintiffs have not shown a clear or substantial likelihood of success on the merits
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`of their First Amendment claims.
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`Second, we deem plaintiffs’ arguments in favor of a preliminary injunction to be without merit
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`for another, independent reason—namely, the District Court properly concluded that legitimate
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`security concerns were implicated by the potential admission of 1,000 protestors to a military
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`installation during a visit by the Vice President of the United States. We believe that defendants’
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`concerns in this regard are grounded in the real possibility that, despite plaintiffs’ assurances of a
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`peaceful and orderly protest, the protest and surrounding activities could prove unpredictable, and
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`perhaps unmanageable. At the very least, permitting the planned protest would likely require
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`defendants to deploy additional security personnel and resources which may or may not be available.
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`We therefore conclude that a preliminary injunction is inappropriate in light of defendants’ security
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`concerns, which in the circumstances presented are entirely “reasonable.” Perry, 460 U.S. at 46.
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`*
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`*
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`*
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`*
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`Accordingly, plaintiffs’ motion for a stay of the May 18, 2007 order and judgment of the
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`District Court is DENIED.
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