The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
This litigation presents serious questions concerning the right of soldiers to free speech and the authority of this Court to protect that right. In the belief that the Army's ability to function effectively would be strengthened, a soldier was transferred and regulations were more strictly enforced because some members of an Army unit circulated and signed petitions opposing the war in Vietnam and because some members' wives and one member's girl friend demonstrated against that war. These steps were approved by the chain of command up to and including the Secretary of the Army.
Discipline, otherwise appropriate and lawful, becomes illegal when it is utilized to suppress First Amendment rights. This Court has the power to protect the constitutional rights of members of the Armed Forces. For the reasons indicated below, that power must be exercised in this case.
Specialist David Cortright, a member of the United States Armed Forces and a former member of the 26th United States Army Band at Fort Wadsworth, New York (Band), brings this class action against the Secretary of the Army and General Higgins, Commanding Officer of the Fort Hamilton Complex, New York, seeking declaratory relief and an injunction prohibiting the defendants from interfering with his First Amendment rights. He also seeks relief in the nature of mandamus cancelling the order transferring him to Fort Bliss, Texas "and forbidding future transfer of the [plaintiff and members of his class] * * * without good cause shown." He alleges that defendants infringed his First Amendment right to freedom of speech by threats and harassment, and that his transfer to an over-strength unit violated Army regulations.
A number of former members of the Band have been permitted to intervene. They seek to have their transfers to various posts cancelled on much the same grounds as Cortright.
Defendants deny that the Court has jurisdiction. They also deny that plaintiffs' rights were violated.
Voluminous records of the Army's investigation into the complaints under Article 138 of the Uniform Code of Military Justice, 10 U.S.C. § 938, have been submitted to the Court. This record has been supplemented by testimony and exhibits.
EXPRESSIONS OF DISSENT BY PLAINTIFFS AND REACTIONS OF THEIR OFFICERS
On November 9, 1969 an advertisement signed by 38 members of the Band, among many other Armed Forces personnel, appeared in the New York Times. (Throughout the pertinent period there were about 55 members in the Band.) The advertisement called for the immediate withdrawal of United States forces from Vietnam and urged members of the Armed Forces to participate in a November 15, 1969 demonstration and march on Washington, D.C. to protest our involvement in Southeast Asia.
The Band's Commanding Officer, CW4 Arthur Shettle, reacted sharply to this expression of dissent. On November 11, 1969 he called a special formation of the Band and discussed the advertisement. He warned that General Higgins, Commander of the Fort Hamilton Complex which includes Fort Wadsworth, was aware of their activities and that under similar circumstances the 7th Army Symphony had been disbanded.
In the Spring of 1970 a new petition protesting the war was distributed among the members of the Band. Apparently copies were mailed to all those who had signed the earlier document. This petition created more controversy.
In April a meeting of the entire Band was held at the urging of those opposed to the petition. The meeting was held on post in the stands at the rehearsal grounds during lunch break. Reactions of the Band's superiors to the signing of the petition was discussed. It was finally agreed that the petition would be published only if a majority of the Band approved. Discussions continued both on and off post, but they were part of general conversations and did not disrupt the daily routine.
By mid-June, 1970 thirty-five members of the Band had signed the new petition. At this point the new unit commander, CW3 Patrick Flores, intervened. On June 18, 1970 he called into his office Specialist Thomas Sicola, a Band member with reservations about the petition, and advised against its publication. Flores also addressed the Band and warned of possible repercussions. After discussing the matter and taking a poll, Cortright told the sponsors -- a civilian group -- not to publish the names of any Band members. There is some indication that during one part of these discussions "one individual * * * swung on the other."
As the Band was about to march in a July 4th parade on Staten Island, five women -- Cortright's fiancee and the wives of some other Band members -- attempted to join the line of march while carrying "peace" signs. Although a scuffle occurred between the women and some spectators, the Band continued to march in formation and play. This incident was reported in a Staten Island newspaper. No signs specificially connected the Band with the demonstration.
Following the July 4th incident regular rehearsals were cancelled and Flores attended meetings at the headquarters of the Fort Hamilton Complex. On July 8, 1970 significant changes were made in the duty schedule of the Band. These included lengthening of the duty day, addition of Saturday duty, and implementation of additional training. Certain privileges such as less strictly enforced haircut regulations, exemption from full police and fatigue details, exemption from Monday morning command reveille and permission to take private music lessons during duty hours were eliminated. At a Band formation, Flores explained that the changes were instituted because of the men's anti-war activities. He advised them to end such action and accept these duty changes. He warned that if they did not, further measures might be taken.
Some Band members did not take his advice to accept these changes. On July 10, 1970 a letter signed by Cortright and 35 other Band members was sent to General Higgins listing the events outlined above and asking for recision of the duty changes.
Upon receiving the letter, General Higgins instructed Colonel Merrick, Deputy Commander for the Fort Hamilton Command, to meet with the Band. On July 12 Colonel Merrick called the Band together to explain that the measures "were not punitive." He told the men that they represented normal practice, "regardless of how Mr. Flores may have represented them."
On July 17, 1970 Cortright was ordered to report to the 62nd Army Band at Fort Bliss, Texas. Instead of the usual thirty to sixty day lag between the transfer orders and the scheduled date of arrival at the new station there were seven. At Fort Bliss he was not assigned to the 62nd Army Band but was ordered to assist the Chaplain.
The 62nd Army Band -- the transferee -- at the time was already three men over-strength in Cortright's specialty, the baritone horn, and another man with this training was on the way. By contrast, the 26th Army Band -- the transferror -- with Cortright's departure, had no men in his specialty even though its table of organization called for such a specialist.
At the trial General Ciccollela, Chief of Staff of the United States First Army, testified candidly that the reason for Cortright's precipitous transfer was the desire to rid the Band of a troublemaker. He testified:
[When] I first came to First Army in June and got my briefing on the First Army situation, the 26th Army Band came up in the briefings, and I got the impression that they had some elements in it that were causing problems to the commander at Fort Hamilton.
[Cortright] came to my attention early as being the more vocal, the more active dissident in the band, the one who apparently had made himself the leader of a little gang that had organized itself in the band, was very active in their dissenting activities, and was what was considered to be a troublemaker in the band.
Q Did you form any conclusions about the effect of Specialist Cortright's activities on the band?
A Yes. It was my judgment that what he was doing in the band was weakening its general morale, it's discipline and effectiveness.
Q Did you take any action regarding Specialist Cortright regarding those reports and your conclusions?
A I called the staff in and asked them to look into it and let me have their recommendations. And the first recommendation they made was to the effect the band had not been drawn down to their authorized strength, that there were still ten or twelve over their authorized strength.
I asked them if Cortright was eligible for transfer, and they said he was, and I told them to move him.
The Article 138 material confirms that Cortright's transfer took place as General Ciccollela requested.
There is no doubt that the Chief of Staff was acting for what he, in good faith, felt was the best interests of the Army. He testified on direct examination:
Q What did you intend to accomplish by taking that action resulting in Specialist Cortright's transfer?
A We intended to accomplish the strengthening of the band and making it a better military unit, a unit that would accomplish its mission. This is important to us in the Army.
The Chief of Staff conceded that the Band had "performed satisfactorily" in marching and playing. He was apparently primarily concerned with the ability of this Band to respond properly to "a wartime requirement, and that is to be able to fight and be able to defend vital installations and be responsive immediately to orders without question." He agreed that "any soldier, just like any other citizen, has the right to free expression, and we give it to them. We have the most democratic Army in the history of the world." But, he concluded that dissent had weakened "the effectiveness of that military unit."
On cross-examination he declared:
A These were activities like meetings and being carried away with their views, being opposed to the war and to their government, and being opposed to the nation and all that sort of stuff. All this has a deleterious effect on the morale.
Q What leads you to believe they are opposed to their government?
A When they go out and want to protest, I am not saying this is wrong, they want to carry banners protesting the war, I think that is in disagreement with their government.
Q That is not being against their government; there is a difference?
A Let me say they are in opposition.
A On the battlefield there can't be any opposition to anything.
References in the testimony to the failure of the Band to march in the rain on "Armistice Day," November 11, 1970, have not been considered by the Court since this event took place after the discipline. In any event, Colonel Merrick testified that the decision not to play was made as a result of a "breakdown in communication" with Mr. Flores and not as a result of any resistance by enlisted men.
Colonel Merrick admitted that the Band had always followed orders; "They were a fine playing band, and still are." He was, however, somewhat upset by the possibility that the audience might not care for the anti-Vietnam war views of Band members. He told the Court:
[My] feeling in the matter being that the purpose of the band is to represent the Army in New York, and it plays primarily before all of these military orders, Veterans of Foreign Wars, American Legion, these types of units, and * * * it's not what we * * * would be looking for at all as an Army representation in New York.
General Higgins was, like Colonel Merrick, bothered by the petitions because they publicly revealed dissent. In a four page letter dated July 17, 1970 to his superior, General Seaman, Commanding General of the First United States Army, he wrote:
As I have mentioned in the past, my band has the potential for being a problem because of several dissident oriented types assigned to it.
On my arrival, I was informed * * * that the individual most evident in dissident activities was a SP4 David A. Cortright, a graduate of Notre Dame and the band's drum major.
In November, the first outward manifestation of Specialist Cortright's activities appeared in the New York Times which was the signing by 20 members of the band of a petition in opposition to our country's stand in Vietnam. * * *
I * * * directed my Deputy, Colonel Merrick, on a very close hold basis, to make contact with your headquarters and determine the possibility of moving on these known dissident oriented members of the band.
Mr. Flores, on 8 July 1970, had another meeting with the band. Out of a sense of frustration and disappointment as a result of the 4 July incident, he informed the band that as a result of the incidents I have previously outlined, stricter steps would be taken in the areas of personal appearance, work schedules, work hours, and military discipline.
Yesterday, this headquarters received orders transferring SP4 Cortright to Fort Bliss, Texas. This occurred after Colonel Merrick's discussion with your headquarters.
I do not intend to personally reply to the letter of the band since I feel Colonel Merrick's open door discussion was an adequate reply and my IG will process the complaint in accordance with normal IG procedures. The IG responded to [the men's] complaint and concluded there was no evidence of mass punishment or retaliation consummated by Mr. Flores.
I am orally admonishing Mr. Flores for his undesirable action when he related his directed reactions to specific incidents committed by the band which gave the guard house lawyers an opportunity to try to avoid being soldiers through their recourse to the IG and UCMJ provisions.
Flores also reflected the views of his superiors that anti-Vietnam views were undesirable. In his statement to the investigating officer, Colonel Bieber, he admitted telling his men, among other things:
[if] I was the Commanding General I would be hard put knowing that 35 members of this unit had signed an antiwar petition and sent it out to represent the U.S. Army in functions involving the V.F.W. and American Legion or any other community activity.
Colonel Bieber relied heavily upon this community relations aspect of the case. He found: "the anti-Vietnam activities of the band members presented a clear and present danger to the community relations mission of the band." In the summary of the case prepared by Colonel Williams for the Staff Judge Advocate it was noted that the policy of the First Army was: "military bands must be 'politically neutral' if they are to be effective."
The statement of Flores made to Colonel Bieber that "discipline" was very lax is contrary to the other information in the record and is belied by the fact that although Flores assumed command in February of 1970, he took strong action only in July when the free speech issue came to a head.
Plaintiff Cortright is effectively uncontradicted in his testimony that the Band's musical performance was excellent and that the only "morale problem" was that associated with the exercise of First Amendment rights.
Cortright also testified that he was called into Flores' office and told that names of Band members should be withdrawn from the second petition. This advice, with a threat of adverse action, was repeated to the Band and as a result the names on the petition were withdrawn. The testimony of Cortright on this matter is supported by portions of the Article 138 record and is not contradicted:
Sergeant Sicola then told me -- this is in June -- that I was to report to Mr. Flores' office. I came down to the office, and Mr. Flores told me, "What's with this petition?"
I says, "We've signed a petition, and about forty members of the band had sent in their names to this committee."
He told me at that time, he said it was very unwise; he said that the Fort Hamilton command was watching the band, that we should be very careful of our peace activities; that although we had some rights, the Army also had rights, and that he felt that the band members should definitely withdraw their names from their signature -- from this petition, because the band would then, if it was submitted -- that the band would suffer the consequences.
He then told me that -- this very afternoon, that he was having a formation of the band, a special band formation, and he would discuss this issue of the petition to the whole band.
I then went upstairs and the formation was called -- this is an afternoon formation -- Mr. Flores came up and addressed the band. He started with the whole band as he had started with myself, saying that, "I heard about this petition and I think it is very unwise." He told the members of the band that they should not go ahead with this petition, that they should withdraw their names, because the Fort Hamilton command was watching, and they would not be disposed to let this pass.
He urged us to reconsider the petition and to withdraw our names.
Shortly after that formation, before the band was dismissed for the day, Sergeant Sicola came up to me and said that he had just been told by Mr. Flores that we had to have a decision on this matter, the petition, that day or as soon as possible.
I asked him what he meant, and he said that we should take a poll or a vote of the members of the band and decide what they felt about the petition, and whether or not a majority of the members ...