Larry W. Bryant’s UFOview

[LWB Note:  Here's the text of my July 9, 2009, response to the Harvard Law Review (Volume 122, No. 8 (June 2009)) article titled "D. C. Circuit Upholds Access Restriction to Military-run Newspapers on Forum Analysis Grounds -- Bryant v. Gates, 532 F. 3d 888 (D.C. Cir. 2008)."  You can find the article's text at http://tinyurl.com/lbv9eb .  It probably will take several weeks for the HLR staff to decide whether to publish my response upon the HLR web site's forum.]

== Jumping through the Government's First Amendment Hoops ==

By Larry W. Bryant (Plaintiff in Bryant v. Gates)

   As the plaintiff in Bryant v. Gates, I take this opportunity to clarify the record as to how the district court and the appellate court dropped the ball on honoring relevant precedent and acknowledging historical evidence in my case.

       Before the mid-eighties, the Defense Department's various military post/base weekly newspapers used to publish political advertisements (including full-page display ads from electoral candidates).  One of the more active advertisers in the Army-headquarters Pentagram newspaper was perennial presidential candidate Lyndon LaRouche.  Eventually, Army officials at the Pentagon got fed up with LaRouche's brash presence in the Pentagram's pages, so they convinced the Defense Department to ban all political ads henceforth.  In effect, though, by having accepted several of LaRouche's ads, the Army public affairs community in Washington, D. C., had created a forum for expressive activity by those members of the public willing to pay the printer's ad-placement fee.  Then the PA officialdom abruptly decided that the content of that forum henceforth should be politically censorable.  Alas, I failed to emphasize this key chain of events in the argument phase of my litigation.

I also miscalculated the effect of my joining a government-accepted stipulation that my own few dozen published whistleblower-solicitation classified ads since 1984 (and my several rejected ads) constituted "political" ads; I should've insisted to my attorney that the government prove those ads had any "political" content at all.  What's more, I failed to emphasize that the governing DoD instruction has a provision for accepting (and labeling as "Paid Advertisement") a category of classified ads called advertorials.  All my published ads were placed within the category of "announcements."

Both the lower and higher court found it convenient to gloss over the 1994 opinion of Judge Charles R. Richey in Bryant v. Secretary of the Army -- whereby he ruled that, yes, a given military-owned civilian-enterprise newspaper constitutes a nonpublic forum but that its letters-to-editor section hardly consists of government speech; therefore, he said, the Army's regulatory provision prohibiting publication of letters "not in consonance with" Army policy was invalid.  (See:  Bryant v. Sec. of Army, 862 F. Supp. 574 (D.D.C.1994.)

In so ruling , Richey affirmed the legal doctrine that official discrimination against a speaker's viewpoint, even within a nonpublic forum, is impermissible.  I wanted my argument to center on Richey's finding so that:  if the letters section within the paper's editorial pages can have its various viewpoints protected from arbitrary censorship, then why shouldn't that protection certainly be extended to the viewpoints expressed by my paid-ad submissions (regardless of their "political" content)?  (Note:  on at least two occasions, the installation's public affairs officer had expressly invoked his viewpoint-based dislike for my ad submissions, one of these rejecters characterizing the ad as being "anti-military" via its very title.)

How ironic that privately funded political speech, the very category most deserving of First Amendment protection, now must occupy a subservient niche in the culture of our nation's military community.  These servicemembers who voluntarily have put themselves at risk in order to help preserve and protect other citizens' constitutional rights now are being treated as second-class citizens by, of all things, our judicial system.

Upon receiving the appellate court's decision, I certainly wanted to file an appeal with the U. S. Supreme Court, but for financial reasons I'm unable to do so.  Thus, the courts have handed the executive branch more of a victory than it originally had sought, while depriving a large segment of government personnel the opportunity to receive, on their own turf, the expressive material created by some of their fellow citizens.