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828

BRENNAN, J., dissenting

the Government was constrained by specific constitutional limitations, even in the exercise of its proprietary military functions. 367 U. S., at 897. Where the interference with Fort functions by public expression does not differ from that presented by other activities in unrestricted areas, the Fort command may no more preclude such expression, than "Congress may . . . 'Congress may . . . “enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office.""" Ibid., quoting United Public Workers v. Mitchell, 330 U. S. 75, 100 (1947).

Similarly, it is no answer to say that the proposed activities in this case may be excluded because similar forms of expression have been evenhandedly excluded. An evenhanded exclusion of all public expression would no more pass constitutional muster than an evenhanded exclusion of all Roman Catholics. In any event, there can be no assertion that evenhanded exclusion here has in fact been the case because, as the Court implicitly concedes, ante, at 839, there have been no other instances where the privilege of engaging in public expression on the Fort was advanced.

Additionally, prohibiting the distribution of leaflets cannot be justified on the ground that that expression presents a "clear danger to [military] loyalty, discipline, or morale." Ante, at 840. This standard for preclusion is, in the face of a well-developed line of precedents, constitutionally inadequate. This Court long ago departed from "clear and present danger" as a test for limiting free expression. See Hess v. Indiana, 414 U. S. 105 (1973); Brandenburg v. Ohio, 395 U. S. 444 (1969); Edwards v. South Carolina, supra; Scales v. United States, 367 U. S. 203 (1961); Yates v. United States, 354 U. S. 298 (1957); Dennis v. United States, 341 U. S. 494 (1951). Yet the Court today, without reason, would fully reinstate that test and, indeed, would only require that the danger be clear, not even present. Ante, at

BRENNAN, J., dissenting

424 U.S.

840. As Mr. Justice Holmes observed in dissent better than a half century ago: "It is only the present danger of immediate evil or an intent to bring it about that warrants... setting a limit to the expression of opinion." Abrams v. United States, 250 U. S. 616, 628 (1919). "Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the [First Amendment]." Id., at 630-631. Accepting for the moment, however, the validity of a "clear danger" test, I do not see, nor does the Court's opinion demonstrate, how a clear danger is presented in this case. No one has seriously contended that the activities involved here presented such a danger to military loyalty, discipline, or morale.

The response that no such showing was required in this case because respondents failed to furnish for prior approval the material they proposed for distribution will not suffice.12 I first note that in view of the Court's essentially blanket preclusion of public expression from military installations, it is unnecessary for the Court

12 The Court further observes that the noncandidate respondents were also "excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution." Ante, at 840. This justification is wholly inadequate. It assumes that prior approval could have been validly required the first time respondents were excluded. As argued in the text, this page and 865-866, that assumption is incorrect. But even if it is correct, failure once to have sought approval clearly may not of itself justify exclusion when approval is sought on a subsequent occasion. First, 18 U. S. C. § 1382 only prohibits unapproved re-entry of those who have once been excluded from a military base; it does not give a base commander warrant for excluding such individuals on all future occasions. Second, if the activity for which those individuals seek subsequent approval is protected by the First Amendment, the fort commander may no more disapprove that activity because of the past transgression, than prohibit a person once convicted of selling obscene material from future sales of Lady Chatterley's Lover.

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828

BRENNAN, J., dissenting

to reach this issue-save to the extent the Court unwittingly concedes the tenuousness of its total ban. Alexander v. Louisiana, 405 U. S. 625 (1972); Ashwander v. TVA, 297 U. S. 288, 346–348 (1936) (Brandeis, J., concurring). See Rescue Army v. Municipal Court, 331 U. S. 549 (1947). Most important, however, in advancing such a justification, the Court engages in a rude refusal even to acknowledge the firmly fixed limitation on governmental control of First Amendment activity afforded by the doctrine against prior restraints. The illegality of the restraint sought to be imposed in this case obviated any requirement that respondents submit to it, thereby risking irreparable injury to First Amendment interests. See New York Times Co. v. United States, 403 U. S., at 725-726, and n. (1971) (BRENNAN, J., concurring); Freedman v. Maryland, 380 U. S. 51 (1965).

Requiring prior approval of expressive material before it may be distributed on base constitutes a system of prior restraint, Freedman v. Maryland, supra; Times Film Corp. v. Chicago, 365 U. S. 43 (1961); a system "bearing a heavy presumption against its constitutional validity." Southeastern Promotions, Ltd. v. Conrad, 420 U. S., at 558; New York Times Co. v. United States, supra, at 714; Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931). "Our distaste for censorship-reflecting the natural distaste of a free people-is deep-written in our law." Southeastern Promotions, Ltd. v. Conrad, supra, at 553. The Court's tacit approval of the prior restraint imposed under Fort Dix Reg. 210-27 is therefore deeply disturbing. Not only does the Court approve a procedure whose validity need not even be considered in this case, but also it requires no rebuttal of the heavy presumption against

13 Where a demonstrator seeks use of an area serving an inconsistent use, however, the restraint then permissible is, of course, not only prior, but absolute.

BRENNAN, J., dissenting

424 U. S.

840. As Mr. Justice Holmes observed in dissent better than a half century ago: "It is only the present danger of immediate evil or an intent to bring it about that warrants... setting a limit to the expression of opinion." Abrams v. United States, 250 U. S. 616, 628 (1919). "Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the [First Amendment]." Id., at 630-631. Accepting for the moment, however, the validity of a "clear danger" test, I do not see, nor does the Court's opinion demonstrate, how a clear danger is presented in this case. No one has seriously contended that the activities involved here presented such a danger to military loyalty, discipline, or morale.

The response that no such showing was required in this case because respondents failed to furnish for prior approval the material they proposed for distribution will not suffice.12 I first note that in view of the Court's essentially blanket preclusion of public expression from military installations, it is unnecessary for the Court

12 The Court further observes that the noncandidate respondents were also "excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution." Ante, at 840. This justification is wholly inadequate. It assumes that prior approval could have been validly required the first time respondents were excluded. As argued in the text, this page and 865-866, that assumption is incorrect. But even if it is correct, failure once to have sought approval clearly may not of itself justify exclusion when approval is sought on a subsequent occasion. First, 18 U. S. C. § 1382 only prohibits unapproved re-entry of those who have once been excluded from a military base; it does not give a base commander warrant for excluding such individuals on all future occasions. Second, if the activity for which those individuals seek subsequent approval is protected by the First Amendment, the fort commander may no more disapprove that activity because of the past transgression, than prohibit a person once convicted of selling obscene material from future sales of Lady Chatterley's Lover.

828

BRENNAN, J., dissenting

to reach this issue-save to the extent the Court unwittingly concedes the tenuousness of its total ban. Alexander v. Louisiana, 405 U. S. 625 (1972); Ashwander v. TVA, 297 U. S. 288, 346–348 (1936) (Brandeis, J., concurring). See Rescue Army v. Municipal Court, 331 U. S. 549 (1947). Most important, however, in advancing such a justification, the Court engages in a rude refusal even to acknowledge the firmly fixed limitation on governmental control of First Amendment activity afforded by the doctrine against prior restraints. The illegality of the restraint sought to be imposed in this case obviated any requirement that respondents submit to it, thereby risking irreparable injury to First Amendment interests. See New York Times Co. v. United States, 403 U. S., at 725-726, and n. (1971) (BRENNAN, J., concurring); Freedman v. Maryland, 380 U. S. 51 (1965).

Requiring prior approval of expressive material before it may be distributed on base constitutes a system of prior restraint,13 Freedman v. Maryland, supra; Times Film Corp. v. Chicago, 365 U. S. 43 (1961); a system "bearing a heavy presumption against its constitutional validity." Southeastern Promotions, Ltd. v. Conrad, 420 U. S., at 558; New York Times Co. v. United States, supra, at 714; Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931). "Our distaste for censorship-reflecting the natural distaste of a free people-is deep-written in our law." Southeastern Promotions, Ltd. v. Conrad, supra, at 553. The Court's tacit approval of the prior restraint imposed under Fort Dix Reg. 210-27 is therefore deeply disturbing. Not only does the Court approve a procedure whose validity need not even be considered in this case, but also it requires no rebuttal of the heavy presumption against

13 Where a demonstrator seeks use of an area serving an inconsistent use, however, the restraint then permissible is, of course, not only prior, but absolute.

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