     07-2171-cv
     Sussman v. Crawford



 1                           UNITED STATES COURT OF APPEALS
 2
 3                                   FOR THE SECOND CIRCUIT
 4

 5                                      __________________

 6

 7                                       August Term, 2008

 8

 9   (Argued: October 29, 2008                                         Decided: December 2, 2008)
10
11                                     Docket No. 07-2171-cv
12                                    ______________________
13
14      MICHAEL H. SUSSMAN , BENNETT WEISS, MAURY KNIGHT , AND DEMOCRATIC ALLIANCE OF
15                                    ORANGE COUNTY ,
16
17                                                                           Plaintiffs-Appellants,
18                                            — v .—
19
20    BRIAN A. CRAWFORD , GARRISON COMMANDER , AND UNITED STATES MILITARY ACADEMY AT
21                                          WEST POINT ,
22                                                                          Defendants-Appellees.
23                                      _________________
24
25
26   Before:        WALKER, B. D. PARKER, AND RAGGI, Circuit Judges.
27
28                                      __________________
29
 1        Appeal from a judgment of the United States District Court for the Southern District of
 2   New York (Brieant, J.). We AFFIRM.
 3

 4                                          __________________

 5
 6                                  STEPHEN BERGSTEIN , Bergstein & Ullrich, LLP, Chester, N.Y., for
 7                                        Appellants
 8
 9                                  MARA E. TRAGER, Assistant United States Attorney (Jeannette A.
10                                       Vargas and David S. Jones, Assistant United States
11                                       Attorneys, on the brief), for Michael J. Garcia, United
12                                       States Attorney, Southern District of New York, for
13                                       Appellees
14
15                                          __________________

16

17   PER CURIAM:

18          Appellants, three individuals and the Democratic Alliance of Orange County (collectively,

19   the “Alliance”), comprise a group of political activists who oppose the administration’s foreign and

20   domestic policies.    Since May 2004, the Alliance has held marches and rallies protesting

21   administration spokespersons invited to speak at the Commencement ceremonies at the United States

22   Military Academy at West Point, a federal military installation. In early April 2007, the Alliance

23   learned that Vice President Richard Cheney was slated to speak at West Point’s Commencement on

24   May 26, 2007, and thereafter sent a letter to West Point on April 16, seeking permission to protest

25   within West Point’s gates (the “cantonment”). Garrison Commander Colonel Brian A. Crawford

26   (“Crawford”) sent a response to this letter on May 14, twelve days prior to Commencement, denying

27   the Alliance’s request. In his letter, Col. Crawford clarified the application of the West Point speech


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 1   policy, noting that West Point has never permitted “protests or demonstrations . . . inside the gates

 2   of the installation” and that such demonstrations were inconsistent with the “military mission and

 3   [could] detract from the good order, discipline, security, morale, or loyalty of the Soldiers” working

 4   there. He further explained that he had determined that there was “no safe way for up to 1000 people

 5   to assemble in any area on the military reservation on May 26, 2007 to protest the appearance of the

 6   Vice President of the United States at the graduation ceremony that morning without compromising

 7   the safety of our residents, our graduation visitors, and the protesters themselves.”

 8          On May 15, 2007, the Alliance brought an action in the District Court for the Southern

 9   District of New York claiming that West Point’s USMA Regulation 27-2 (the “2004 Speech Policy”)

10   violated the First Amendment, and sought both a preliminary injunction requiring West Point to

11   permit its protest within the cantonment at the 2007 Commencement and a permanent injunction

12   striking down the 2004 Speech Policy. The District Court (Brieant, J.) consolidated the motion for

13   a preliminary injunction and the trial on the merits. Finding that West Point’s denial of the

14   Alliance’s request was “supported by good faith content-neutral security concerns . . . fully

15   substantiated in the trial record,” the District Court held that West Point had not violated the First

16   Amendment. The court denied the Alliance all relief and dismissed its complaint.

17          The Alliance subsequently filed an emergency motion in this Court to stay the District

18   Court’s judgment, which would have had the effect of permitting the demonstration to proceed. We

19   denied the application, concluding that the Alliance had not shown a clear or substantial likelihood

20   of success on the merits of its First Amendment claims. See Sussman v. Crawford (Sussman I), 488

21   F.3d 136 (2d Cir. 2007). We held that, as the Alliance had conceded, West Point is a nonpublic


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 1   forum, and that it could therefore place restrictions on speech so long as they are “reasonable and

 2   not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id.

 3   at 140 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)) (internal

 4   quotation marks omitted). Applying Greer v. Spock, 424 U.S. 828 (1976), we determined West

 5   Point’s policy prohibiting demonstrations within its gates to be “content-neutral” and not of “the type

 6   of discriminatory censorship that the First Amendment seeks to prevent.” Sussman I, 488 F.3d at

 7   141. We also agreed with the District Court that the proposed demonstration raised “legitimate

 8   security concerns.” Id. As a result, we denied the emergency motion. We now reach the merits of

 9   the Alliance’s appeal.

10          We review the District Court’s “findings of fact after a bench trial for clear error and its

11   conclusions of law de novo,” Amalfitano v. Rosenberg, 533 F.3d 117, 123 (2d Cir. 2008), while

12   taking into account, as we may, this Court’s prior decision in this case. See Rezzonico v. H & R

13   Block, Inc., 182 F.3d 144, 148-49 (2d Cir. 1999) (stating that the law of the case doctrine, which

14   posits that a court’s prior decision upon a rule of law generally should “govern the same issues in

15   subsequent stages in the same case,” is at its least binding in the context of interlocutory orders).

16          The Alliance brings substantially the same constitutional claims as those raised previously

17   in Sussman I. First, it contends that West Point’s speech policy’s “blanket ban” on demonstrations

18   within the cantonment violates the First Amendment. We abide by our decision in Sussman I and

19   reject this argument. It is well settled that “access to a nonpublic forum may be restricted by

20   government regulation as long as the regulation ‘is reasonable and not an effort to suppress

21   expression merely because officials oppose the speaker’s view.’” Bd. of Airport Comm’rs of L.A.


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 1   v. Jews for Jesus, Inc., 482 U.S. 569, 573 (1987) (quoting Perry Educ. Ass’n, 460 U.S. at 46). Not

 2   only has the Alliance conceded that West Point is a nonpublic forum, but also the Supreme Court

 3   routinely has classified military installations as nonpublic fora for First Amendment purposes. See,

 4   e.g., Greer, 424 U.S. at 838; United States v. Albertini, 472 U.S. 675, 686 (1985) (citing Greer, 424

 5   U.S. at 836). While the West Point reservation differs from some other military installations in that

 6   it houses an Academy and often invites speakers to address its cadets, we believe that the presence

 7   of the Academy within the cantonment is not sufficient to convert West Point into a public forum.

 8   See Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (citing Albertini, 472

 9   U.S. at 685-86).

10          The District Court correctly found that West Point’s speech policy is constitutional on its face

11   because the policy is “reasonable” and “viewpoint-neutral.” See Perry Educ. Ass’n, 460 U.S. at 46,

12   61. As we held in Perry v. McDonald, restrictions on speech in nonpublic fora must be “reasonable

13   in light of the purpose of the forum . . . and reflect a legitimate government concern.” 280 F.3d 159,

14   169 (2d Cir. 2001) (alteration in original) (internal quotation marks omitted). Although the Alliance

15   contends that the language of West Point’s 2004 Speech Policy allowed for demonstrations within

16   the cantonment, and that the Garrison Commander’s denial of its request to protest constituted

17   arbitrary application of the speech policy, this reading is not supported by the policy’s text. See

18   Sussman I, 488 F.3d at 141 n.2. Furthermore, the Alliance’s invocation of Jews for Jesus in support

19   of its First Amendment claim is misplaced for two reasons: First, although the Supreme Court

20   assumed, without deciding, that Los Angeles International Airport was a non-public forum, that

21   facility was not akin to West Point, which is a closed post that civilians may not enter as freely as


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 1   they would an airport. Second, West Point’s policy restricting some forms of political speech does

 2   not compare with LAX’s ban on all “First Amendment activities.” 482 U.S. at 574. By contrast,

 3   West Point’s speech policy restricts only some modes of communication in line with its military

 4   purpose. As we held in Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 148 (2d Cir. 2004),

 5   “[t]he government can reasonably exclude expression that undermines the purpose served by a

 6   nonpublic forum,” with the “most common reason for such an exclusion [being] . . . that the

 7   excluded expression is distracting or disruptive.” It follows that West Point’s speech policy, in

 8   aiming to exclude from the reservation expression that might “detract from the good order,

 9   discipline, security, morale, or loyalty of the Soldiers who are assigned to or work” there, is

10   reasonable. Sussman I, 488 F.3d at 139.

11          Moreover, we conclude that West Point’s ban on demonstrations within the cantonment is

12   viewpoint-neutral, given that no protestors have been allowed to protest there since the speech

13   policy’s enactment. The Alliance has not established that West Point has applied the policy in a

14   discriminatory fashion to the detriment of either the Alliance or others, nor has it adduced evidence

15   that West Point’s denial of its request to demonstrate was predicated on its political views.

16          The Alliance further claims that the 2004 Speech Policy’s lack of a deadline by which the

17   Garrison Commander must respond to demonstration requests invalidates the policy under the First

18   Amendment. In the interim between our prior decision in Sussman I and the present appeal, West

19   Point amended the 2004 Speech Policy such that its current policy (“2008 Speech Policy”) requires

20   the Garrison Commander to respond to a demonstration request “not later than 14 days prior to the

21   proposed date of the event, absent extraordinary circumstances and/or military necessity.” USMA


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 1   Reg. 27-2, 1-2(f). In light of this amendment, Appellees argue that the Alliance’s First Amendment

 2   claim regarding the prior policy’s lack of a deadline is now moot. In light of West Point’s adoption

 3   of the 2008 Speech Policy, which contains a deadline that will foreclose the alleged prospect of

 4   arbitrarily delayed responses, there is now “no reasonable expectation that the alleged violation will

 5   recur,” and “interim . . . events have completely and irrevocably eradicated the effects of the alleged

 6   violation.” Lamar Adver. of Penn, LLC v. Town of Orchard Park, N.Y., 356 F.3d 365, 375 (2d Cir.

 7   2004) (internal quotation marks omitted). We therefore conclude that West Point’s “voluntary

 8   cessation” of the conduct in question moots the Alliance’s claim relating to the lack of a deadline.

 9          Finally, the Alliance contends that the District Court erred in finding that Appellees properly

10   denied its request to demonstrate within West Point’s cantonment on Commencement day.1 While

11   the Alliance argues that Appellees’ denial of its demonstration request constituted an arbitrary and

12   capricious application of their speech policy, we identify no support for this contention in the record.

13   We reaffirm our previous determination that the District Court properly identified “legitimate

14   security concerns” that motivated Appellees’ denial of the Alliance’s demonstration request. See

15   Sussman I, 488 F.3d at 141. A protest (1) in the cantonment (2) consisting of at least 1,000

16   marchers, the peacefulness of whom the Alliance could not establish in advance, and (3) during the



             1
              We note that the Alliance’s as-applied challenge to West Point’s Speech Policy is not
     moot, in that the Alliance’s injury with respect to West Point’s denial of its demonstration
     request is capable of repetition yet evading review. See Irish Lesbian & Gay Org. v. Giuliani,
     143 F.3d 638, 648 (2d Cir. 1998) (finding injury capable of repetition yet evading review because
     the organization had “only a few weeks between being notified that its application for a permit
     was denied and the date of the Parade in which to obtain judicial review,” and this period was
     “clearly insufficient for full litigation of [the organization’s] claims”).


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1   Vice President’s speech to an audience of 20,000 people, unquestionably raises security concerns

2   that would justify West Point’s denial of the requested demonstration.2 Because Appellees therefore

3   cannot be said to have “applied [their Speech Policy] irrationally, invidiously, or arbitrarily” against

4   the Alliance, see Greer, 424 U.S. at 840, we hold that Appellees’ denial of the Alliance’s

5   demonstration request did not violate the First Amendment.

6

7           Consequently, we AFFIRM the judgment of the District Court.

8




            2
            Although the Alliance submitted at oral argument that Appellees’ rejection of
    demonstration requests involving fewer marchers on dates other than Commencement could not
    survive First Amendment scrutiny, because no such rejection is before the Court in this case, we
    do not consider that possibility at this time.

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