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)

                                                Docket No. 07-2171-cv

MICHAEL H. SUSSMAN, BENNET WEISS, MAURY KNIGHT AND DEMOCRATIC ALLIANCE OF ORANGE
COUNTY ,

                  Plaintiffs-Appellants,

                  -v.-

BRIAN A. CRAWFORD , GARRISON COMMANDER AND UNITED STATES MILITARY ACADEMY AT WEST
POINT,

                  Defendants-Appellees.

Before: WALKER, CABRANES, Circuit Judges, and GOLDBERG 1, Judge.

         Plaintiffs move for a stay of an order and judgment of the District Court denying their request

for a preliminary injunction compelling defendants to allow a political demonstration inside the gates of

the United States Military Academy at West Point during a graduation ceremony at which the Vice

President of the United States will deliver a commencement address. Plaintiffs claim that the First

Amendment affords them a right to protest within the gates of West Point and during graduation

exercises.

         Motion is denied.

                                                                STEPHEN BERG STEIN , 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.

         1
           The Honorable Richard W. Goldberg, Judge of the United States Court of International Trade, sitting by
designation.

                                                            1
                                                         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.

PER CURIAM:

         Plaintiffs move to stay a May 18, 2007 order of the United States District Court for the

Southern District of New York (Charles L. Brieant, Judge) denying their request for a preliminary

injunction. The injunction sought by plaintiffs would compel the United States Military Academy at

West Point and its Garrison Commander, Colonel Brian Crawford (“Crawford”), to allow a

demonstration by approximately 1,000 protestors to be held inside the gates of West Point during a

graduation ceremony at which the Vice President of the United States will deliver a commencement

address. Although plaintiffs have been granted permission to conduct their protest immediately outside

the gates of West Point, they claim that the First Amendment affords them a right to protest within the

gates, in an area known as the Cantonment. As explained below, the First Amendment affords

plaintiffs no such right, and their motion is therefore denied.

                                              I. Background

         We recount below the relevant facts as presented by the District Court in its May 18, 2007

order:

         Plaintiffs are a political organization and three individuals who oppose the policies of President

George W. Bush, including but not limited to the ongoing military conflict in Iraq. Defendant

Crawford is the Garrison Commander at the West Point Military Reservation (“the Reservation” or

“West Point”), where Army officers have been trained since 1802. Crawford is the official authorized

to receive written requests from persons desiring to protest or engage in demonstrations on the

Reservation, pursuant to Section 1-2g of United States Military Academy Regulation 27-2, which was

adopted on May 5, 2004.



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           As contemplated by Regulation 27-2, plaintiffs submitted a written request dated April 16, 2007

and signed by plaintiff Michael H. Sussman (“Sussman”), to stage a protest march within the West

Point Cantonment on May 26, 2007, the date of West Point’s graduation ceremony. The stated

purpose of the march is to demonstrate against the continued “American invasion of Iraq.”

On that date, Vice President Richard B. Cheney is scheduled to address the graduating cadets.

Plaintiffs contend the Vice President will use the commencement address as a forum from which to

deliver a political speech in support of the ongoing military conflict in Iraq.

           Beginning in May 2004, plaintiffs have annually sponsored and conducted a march of

approximately 1,000 protestors entirely outside the West Point Reservation, near the Thayer Gate,

followed by a rally at Veteran’s Memorial Park in the Village of Highland Falls, New York, less than

one mile from the Thayer Gate. These activities required no permit from defendants.

           West Point is a federal military installation which is the location of an academic institution that

educates military cadets over a four-year course to become officers and future leaders in the United

States Army. The West Point Reservation consists of approximately 16,000 acres, primarily on the west

shore of the Hudson River. A smaller portion of the Reservation, referred to as the Cantonment,

contains the campus of the Academy, the supporting facilities, cadet residence, academic halls,

administrative offices, the workplace of military and civilian personnel, as well as a football field where

the commencement exercises and the Vice President’s speech are scheduled to take place. This area is

accessible only by three gates—Thayer Gate, Stony Lonesome Gate, and Washington Gate—which are

part of a security perimeter that is manned by security personnel at all times. Members of the public are

not allowed to enter the Cantonment without permission, but must state a legitimate purpose, present

photographic identification which is subjected to a computer search, and allow an inspection of their

vehicle.

           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

approximately 1,000 other participants. The protestors plan to proceed through Thayer Gate after

individually presenting identification to the security guards. The protestors would then proceed around

a large field located in the West Point Cantonment and exit back through Thayer Gate and off the

Cantonment and, eventually, the Reservation. Plaintiffs estimate that they would be within the gates for

one hour while commencement ceremonies are going forward. They claimed before the District Court

that they would “provide security through designated marshals trained in crowd control and non-

violent demonstration tactics.” They claimed also that the demonstration would be orderly and would

not disrupt the graduation ceremonies. The location of the planned demonstration would place the

protestors approximately three quarters of a mile east of the graduation itself.

        By a letter dated May 14, 2007, Garrison Commander Crawford denied plaintiffs’ request to

carry out the planned demonstration, stating:

       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.

        On May 15, 2007, plaintiffs initiated the instant action in the United States District Court for

the Southern District of New York. Plaintiffs’ complaint alleged that Crawford’s response to their

request to hold the planned demonstration during commencement exercises violated the First

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.

        On May 18, 2007, the District Court entered an order and judgment denying plaintiffs’ request

for a preliminary injunction. The District Court concluded, in particular, that a preliminary injunction

was not warranted because (1) defendants’ decision to deny permission for the planned protest was

grounded in legitimate security concerns which were “reasonable” and “entitled to judicial deference”;

and (2) defendants’ “content neutral regulation,” which “provides for permitting demonstrations

outside of the Gates [of the Cantonment] but not inside,” did not violate the First Amendment in the

circumstances presented.

        Plaintiffs timely appealed the District Court’s judgment. On appeal, they raise substantially the

same arguments as they raised before the District Court—namely, that (1) the “blanket prohibition”

against speech within the West Point Cantonment violates the First Amendment’s guarantee of

freedom of speech; and (2) the record does not support the District Court’s finding that legitimate

security concerns outweigh plaintiffs’ First Amendment rights to free speech.

                                              II. Discussion

A. Standard of Review

        “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be

granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong,

520 U.S. 968, 972 (1997) (emphasis in original). Any party seeking a preliminary injunction “must

demonstrate that it will suffer irreparable harm in the absence of the requested relief.” Latino Officers

Ass’n v. Safir, 170 F.3d 167, 171 (2d Cir. 1999).

        “[W]hen, as here, the moving party seeks a preliminary injunction that will affect government

action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be

granted only if the moving party meets the more rigorous likelihood-of-success standard.” Wright v.

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

success on the merits.” Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000).



B. Analysis

        We conclude that plaintiffs have not met their burden of showing a “clear or substantial

likelihood” that they will succeed on the merits of their First Amendment claim. Id. We reach this

conclusion for two reasons.

        First, plaintiffs misunderstand the scope of the First Amendment’s protections as applied to

individuals seeking to engage in political protests within the confines of a military installation. Plaintiffs

do not contend that the West Point Cantonment, the venue where they seek to carry out their protest,

is a “public forum,” or even a “designated public forum,” in which a heightened level of First

Amendment protections would apply. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.

37, 46 (1983); Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004). Rather, plaintiffs

conceded both before the District Court and before this Court that the West Point campus is a “non-

public forum” in which restrictions on speech are permissible “as long as [they are] reasonable and not

an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460

U.S. at 46. Indeed, the Supreme Court has specifically held that military bases are not public forums.

Greer v. Spock, 424 U.S. 828, 839 (1976); see also United States v. Albertini, 472 U.S. 675, 684-86 (1985)

(military base “is ordinarily not a public forum for First Amendment purposes even if it is open to the

public”). The Supreme Court in Greer held that political candidates for national office had “no

generalized constitutional right to make political speeches or distribute leaflets at Fort Dix,” a military

base. Greer, 424 U.S. at 838. The Court further held that regulations barring candidates from

conducting political activity on the premises of the base did not violate the First Amendment. Id. The

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

private citizens is . . . historically and constitutionally false.” Id.

         We conclude that the holding of Greer is fully applicable where, as here, plaintiffs challenge

what they describe as a “blanket policy” of prohibiting all protests within the confines of the West

Point Cantonment. See id. at 839 (noting that the policy prohibiting political activity on military

property was “a considered [military] policy, objectively and evenhandedly applied, of keeping military

activities . . . wholly free of entanglement with partisan political campaigns of any kind”). Plaintiffs

admit that no other groups have been granted permission to demonstrate at this year’s graduation, and

do not dispute that no such groups have ever been granted permission to demonstrate at any past

graduation. Defendants’ policy of excluding protestors is therefore content-neutral and does not

implicate the type of discriminatory censorship that the First Amendment seeks to prevent. See id. at

838-39 (noting that “there is no claim that the military authorities discriminated in any way [when

implementing the policy],” and further noting that “no candidate of any political stripe had ever been

permitted to campaign there”).2

          Plaintiffs’ argument that the planned address of the Vice President affords them a right to

express their political opinions within the confines of the West Point Cantonment is without merit.

Although the Vice President is a political figure, he is also an incumbent official in the United States

Government, second in rank only to the Commander-in-Chief. As such, his mere presence on campus



         2
          We reject plaintiffs’ argument that the relevant United States Military Academy Regulations authorize the
Garriso n Com mand er to permit dem onstrations within the W est Point C antonm ent. T hose regu lations provide , in
pertinent part:

         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 proced ures below are follow ed.”U .S.M.A . Reg 27-2(f) (em phasis ad ded ).

         The subsequent sections of the regulation, on which plaintiffs rely to suggest that ad ditional au thority exists to
authorize protests within the campus gates, clearly fall under the purview of the “procedures below” and therefore do
not su pport plain tiffs’ argum ent.

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to address members of the United States military on their graduation day does not convert the West

Point campus into a public forum; nor does it serve as an open invitation for 1,000 or more outsiders to

engage in freewheeling and potentially distracting (if not disruptive) acts of political expression. Cf. id.

n.10 (“The fact that . . . speakers and entertainers had sometimes been invited to appear at [a military

base] did not of itself serve to convert [the base] into a public forum or to confer upon political

candidates a . . . right to conduct their campaigns there. . . . [Nor did it] leave authorities powerless

thereafter to prevent any civilian from entering [the base] to speak on any subject whatever.”).

        Accordingly, plaintiffs have not shown a clear or substantial likelihood of success on the merits

of their First Amendment claims.

        Second, we deem plaintiffs’ arguments in favor of a preliminary injunction to be without merit

for another, independent reason—namely, the District Court properly concluded that legitimate

security concerns were implicated by the potential admission of 1,000 protestors to a military

installation during a visit by the Vice President of the United States. We believe that defendants’

concerns in this regard are grounded in the real possibility that, despite plaintiffs’ assurances of a

peaceful and orderly protest, the protest and surrounding activities could prove unpredictable, and

perhaps unmanageable. At the very least, permitting the planned protest would likely require

defendants to deploy additional security personnel and resources which may or may not be available.

We therefore conclude that a preliminary injunction is inappropriate in light of defendants’ security

concerns, which in the circumstances presented are entirely “reasonable.” Perry, 460 U.S. at 46.



                        *                *                *               *

        Accordingly, plaintiffs’ motion for a stay of the May 18, 2007 order and judgment of the

District Court is DENIED.




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