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October 30, 1962


Author: Friendly

Before LUMBARD, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.

FRIENDLY, Circuit Judge.

The nuclear powered submarine, U.S.S. Ethan Allen, capable of firing Polaris missiles, was to be launched from the ways of the Electric Boat Company into the Thames River at New London on November 22, 1960. Between June and November, a group called the Committee for Non-Violent Action (CNVA), which had established headquarters in New London, conducted demonstrations against the Polaris program; these included entering the grounds of the Electric Boat Company and, on October 20, boarding two other nuclear powered submarines tied up at moorings there. On November 8, Captain Kenner, the Submarine Force Legal Officer at New London, warned the Committee by registered letter that the submarines had been "posted" pursuant to 50 U.S.C. § 797, and that anyone boarding them would be subject to prosecution as provided by that statute. On November 21, the CNVA acknowledged the warning, and the attendant risk of punishment, and gave notice of its intention that "sometime during the morning [of November 22] several Polaris Action volunteers, willing to take the risk mentioned above, will attempt in some way to block the launching of the Ethan Allen."

Even before this, the Navy had asked the assistance of the Coast Guard in controlling river traffic on the day of the launching. On November 17, in response to this request, the Commander of the 3rd Coast Guard District had issued a "Special Notice" closing the Thames River at New London between the latitudes of 41degree20foot32inch and 41degree21foot00inch on November 22 from 11 A.M. until one hour after the launching of the Ethan Allen, which was scheduled for noon that day. The latitudes were those of the boundaries of the Electric Boat Company's property. The Coast Guard order directed all persons and vessels "to remain outside of the closed area", and warned of penalties for its violation pursuant to 50 U.S.C. § 192. This order was published in the Local Notice to Mariners dated November 17, 1960, and a copy was sent by registered mail to the CNVA which acknowledged it; however, it was not published in the Federal Register.

The CNVA was not to be thus thwarted. Shortly before 11 A.M. on November 22, a canoe and a rowboat started down the Thames River toward the restricted area. Appellant Aarons, who had seen a copy of the Coast Guard order at the CNVA's office, was in the rowboat. This boat, called the World Citizen, approached the restricted area and was intercepted by a Coast Guard boat whose commander gave the rowboat's three occupants a copy of the order. The World Citizen nevertheless continued into the area, as did the canoe, and was there when the whistles blew at 11 A.M. A Coast Guard boat then came over and took it in tow; one of its occupants - not Aarons - jumped overboard and swam toward the submarine but was picked up by a Coast Guardsman. Meanwhile, a second rowboat entered the restricted area. Appellant Swann, a member of the CNVA, was in the CNVA office and on the shore in New London on the day of the launching; he helped to get the canoe and one of the rowboats into the water, and to plan and coordinate the entire demonstration. He too knew of the Coast Guard order.

Appellants and others were indicted in the District Court for Connecticut, under 50 U.S.C. § 192, for knowing violation of the order, which the Government claimed was validly issued under 50 U.S.C. § 191. Aarons was tried by the court, Swann by a jury; both were convicted and sentenced to one year's imprisonment, suspended after 90 days, and were placed on probation for five years thereafter.

Appellants' first challenge, to the statutory basis of the Coast Guard order, requires us to trace the chain of title on which the Government relies. Prior to 1950, 50 U.S.C. § 191, empowering the Secretary of the Treasury to make, subject to the approval of the President, "rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States," depended on a Presidential declaration of a national emergency. The Magnuson Act of August 9, 1950, 64 Stat. 427, amplified this by providing that "Whenever the President finds that the security of the United States is endangered by reason of actual or threatened war, or invasion, or insurrection, or subversive activity, or of disturbances or threatened disturbances of the international relations of the United States," he is authorized to issue rules and regulations designed, among other purposes, "to safeguard against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, vessels, harbors, ports, and waterfront facilities in the United States, * * *." By Executive Order No. 10173, issued October 18, 1950, 15 F.R. 7005, President Truman, finding "that the security of the United States is endangered by reason of subversive activity," invoked the Magnuson Act and prescribed various regulations which constitute Part 6, Subchapter A, Chapter I, Title 33 of the Code of Federal Regulations. Two of these are as follows:

"§ 6.04-5 Preventing access of persons, articles or things to vessels or waterfront facilities. The captain of the port may prevent any person, article or thing from boarding or being taken on board any vessel or entering or being taken into any waterfront facility when he deems that the presence of such person, article or thing would be inimical to the purposes set forth in § 6.04-8.

"§ 6.04-8 Possession and control of vessels. The captain of the port may supervise and control the movement of any vessel and shall take full or partial possession or control of any vessel or any part thereof, within the territorial waters of the United States under his jurisdiction, whenever it appears to him that such action is necessary in order to secure such vessel from damage or injury, or to prevent damage or injury to any vessel or waterfront facility or waters of the United States, or to secure the observance of rights and obligations of the United States."

By virtue of § 6.04-1, all authority and power vested in the captain of the port may be exercised by the Coast Guard's District Commander.

The Special Notice of November 17, 1960, fell within the authority thus conferred. It is immaterial whether the execution of the CNVA's announced intention "to block the launching of the Ethan Allen" would constitute "subversive activity," although we do not understand why it would not. The statute says that so long as the President has found that the security of the United States is threatened generally by subversive activity, he may promulgate regulations to safeguard vessels not only from "sabotage or other subversive acts" but also from "accidents"; at the very least, appellants' activities threatened these. Appellants point to what they deem the anomaly that 50 U.S.C. § 192 authorizes a punishment of to ten years' imprisonment and a $10,000 fine for the felony of violating regulations under § 191, whereas 50 U.S.C. § 797, 64 Stat. 1005 (1950), enacted less than seven weeks after the Magnuson Act, sets a maximum of one year's imprisonment and a $5,000 fine for the misdemeanor of violating regulations issued "for the protection or security of military or naval aircraft, airports, airport facilities, vessels, harbors" etc. The Government answers that § 797 applies at any time, whereas §§ 191 and 192 can be invoked only when the President finds that the national security is endangered, and thus deal with a situation of greater gravity. We have no occasion to speculate on the reasons for the disparity between the penal provisions of the two statutes; we see no basis for excluding the Ethan Allen, which is surely a "vessel", from the broad scope of the Magnuson Act merely because it belongs to the Navy and could thus be protected under § 797 as well.

Appellants say the prohibited area was larger than needed; the Government answers that the whole width of the river was properly restricted since no one knew how far across the submarine would go on her launching, and that it was also legitimate to prevent access by water to any part of the Electric Boat Company's property during that time. Courts should not second-guess the executive in such matters when there is no indication that the action taken was anything but a good faith effort to protect property deemed essential to the interests of the United States. In any event this argument cannot avail appellants. Their demonstration was in the very area where damage to the submarine was most likely - the canoe that Swann helped to launch "was almost up on top of the submarine, right on back of it," and the two rowboats were directly in the way of the launching.

Appellants urge that if the Magnuson Act be construed as authorizing the Coast Guard's Special Notice, its application to them here violates the First Amendment. But the same Charter that adjures Congress to "make no law * * abridging the freedom of speech * * * or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances", empowers it "To provide and maintain a Navy", Art. I, § 8, as a means of securing one of the objectives of the preamble, to "provide for the common defence." Appellants were not denied the right to demonstrate in the streets or public places of New London or, indeed, on the Thames River itself save for an area about a thousand yards square for two hours. This seems a not unreasonable reconciliation of a minority's right to protest against Polaris submarines with the right of the majority to give the nation the protection of naval vessels which their representatives in the legislative and executive branches of the Government deem required "for the common defence". Even if we were to assume in appellants' favor that action designed "to block the launching" constituted speech or assembly, "freedom of speech * * * does not comprehend the right to speak on any subject at any time," American Communications Ass'n v. Douds, 339 U.S. 382, 394, 70 S. Ct. 674, 682, 94 L. Ed. 925 (1950), or any place, Poulos v. New Hampshire, 345 U.S. 395, 405, 73 S. Ct. 760, 97 L. Ed. 1105 (1953).

Appellants' serious argument is that the Special Notice cannot be enforced against them because it was not published in the Federal Register as, they maintain, was required by the Federal Register Act (hereafter FRA), 44 U.S.C. §§ 301-314, and by § 3(a) of the Administrative Procedure Act (hereafter APA), 5 U.S.C. § 1002(a). Although even those deeply sympathetic with the purpose of these statutes may be surprised to encounter them in this context, appellants are right in saying that publication was ...

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