The Supreme Court agreed Yesterday to decide whether petitions to Congress can be circulated on military bases and ships by servicemen who do not have permission from their commanding officers.
The justices acted in two cases that began in 1974, during the Vietnam war. One case involved Marines at an air station in Japan who objected to U.S. support of the government of South Korea. The other involved an Air Force officer who objected to rules on hair length.
At issue was the constitutional right to petition the government and a law saying "no person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States."
A year ago, the U.S. Court of Appeals here ruled for the Marines in the one case. Seven months later, the 9th U.S. Circuit Court of Appeals ruled for the airman in the other.
The rulings drew a strong protest from the Justice Department. They leave the military "powerless" even in the face of petitions that would "pose a clear danger to military discipline, loyalty or morale," Solicitor General Wade H. McCree said in a successful plea for high court review.
The rulings also leave the military unable to halt petitions that could "materially undermine the effective accomplishment of the assigned military mission," or that are presented for signatures "at a combat-ready facility on the periphery of our defensive arrangement," McCree said.
He emphasized that military regulations implementing the law do not interfere with personal letters from servicemen to members of Congress.
The Marine case began at the air station at Iwakuni, Japan, when three servicemen sought but were denied permission to distribute petitions to Congress objecting to the use of military personnel in labor disputes and supporting amnesty for draft resisters and deserters.
Then, without seeking their commander's permission, Pvts. Frank L. Huff and Robert A. Falantine distributed a petition objecting to support of South Korea's government.
Huff was arrested, court martialed, sentenced to 60 days at hard labor, docked half of his pay and reduced in rank from E-3 to E-1, the lowest enlisted grade. Falantine was arrested, but court martial proceedings against him were dismissed for lack of evidence.
Later, Pvt. Robert E. Gabrielson requested permission to distribute the petition, addressed to then Sen. J. William Fulbright (D-Ark.), on and off the base, but the commander approved circulation only if it were outside the barracks and were nonargumentative in nature.
The three then sued in U.S. District Court here. Judge Barrington D. Parker ruled that the Marine Corps had violated the men's First Amendment protection against prior restraint of expression as well as the law. The appellate court, however, rejected his broad holding and instead held only that the prior-approval requirement as applied to on-base circulation of petitions is invalid.
The government contends that the requirement is permitted by the law because it is necessary to national security.
The Air Force case involved Capt. Albert E. Glines, who drafted petitions to legislators opposing hairlength standards. While at a base on Guam, he gave the petitions to a sergeant who gathered eight signatures. The Air Force then removed Glines, a reservist, from active duty and charged him with failing to meet professional standards.
The charges were sustained, resulting in reassignment of Glines to standby reserve status. He sued. A trial court awarded him reinstatement and $22,033 back pay.
The 9th Circuit held the regulations wholly unconstitutional because of their overbroad application to protected activity. But it nullified the back-pay award on the ground that only the U.S. Court of Claims has jurisdiction over a claim of more than $10,000 against the government.
The court took other actions.
In Elgin, Ill., Thomas Baldasar was tried and convicted for the theft of a household item worth less than $150. During the trial, the state introduced evidence that he had been convicted of a misdemeanor in the past, been fined and put on probation.
His lawyer objected that in the earlier prosecution Baldasar had not had a lawyer. The judge overruled the objection. By doing so, he enabled himself to sentence Baldasar as if he had committed a felony rather than a misdemeanor. The sentence was one to three years, compared with a maximum of 364 days for a misdemeanor.
A divided state appeals court upheld the sentence. The Supreme Court agreed to review the decision.
The court granted a Justice Department petition to review a ruling, in a Philadelphia case, that it says will impede prosecution of immunized witnesses who lie to grand juries.