Flower v. United States/Opinion of the Court

[p197] PER CURIAM.

Petitioner John Thomas Flower, a regional "Peace Education Secretary" of the American Friends Service Committee and a civilian, was arrested by military police while quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas. In an ensuing prosecution before the United States District Court for the Western District of Texas on charges of violating 18 U.S.C. § 1382 ("Whoever reenters or is found [within a military post] after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof—Shall be fined not more than $500 or imprisoned not more than six months, or both"), it was established that petitioner had been previously been barred by the post by order of the deputy commander because of alleged participation in an attempt to distribute "unauthorized" leaflets. The District Court found that § 1382 "is a valid law" and was validly applied. It sentenced petitioner to six months in prison. A divided [p198] panel of the Court of Appeals for the Fifth Circuit affirmed. 452 F. 2d 80 (CA5 1972).

We reverse. Whatever power the authorities may have to restrict general access to a military facility, see Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961), here the fort commander chose not to exclude the public from the street where petitioner was arrested. As Judge Simpson, dissenting, noted below:

"There is no sentry post or guard at either entrance or anywhere along the route. Traffic flows through the post on this and other streets 24 hours a day. A traffic count conducted on New Braunfels Avenue on January 22, 1968, by the Director of Transportation of the city of San Antonio, shows a daily (24-hour) vehicular count of 15,110 south of Grayson Street (the place where the street enters the post boundary) and 17,740 vehicles daily north of that point. The street is an important traffic artery used freely by buses, taxi cabs and other public transportation facilities as well as by private vehicles, and its sidewalks are used extensively at all hours of the day by civilians as well as by military personnel. Fort Sam Houston was an open post; the street, New Braunfels Avenue, was a completely open street." 452 F. 2d, at 90.

Under such circumstances the military has abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue. The base commandant can no more order petitioner off this public street because he was distributing leaflets than could the city police order any leafleteer off any public street. Cf. Lovell v. City of Griffin, 303 U.S. 444 (1938), Schneider v. State, 308 U.S. 147 (1939). "[S]treets are natural and proper places for the dissemination of information and opinion," 308 U.S., at 163. "[O]ne who is rightfully on a street which the state has left open to the public [p199] carries with him there as elsewhere the constitutional right to express his views in an orderly fashion." Jamison v. Texas, 318 U.S. 413, 416 (1943).

The First Amendment protects petitioner from the application of § 1382 under conditions like those of this case. Accordingly, without need to set the matter for further argument, we grant the petition for a writ of certiorari and reverse the conviction.

Reversed and remanded.

MR. JUSTICE BLACKMUN dissents, for he would grant the petition for certiorari and hear argument on the merits.