Richard A. Yahr et al., Appellants, v. Stanley R. Resor, Secretary of the Army, et al., Appellees, 431 F.2d 690 (4th Cir. 1970)

Appellants are servicemen stationed at Fort Bragg, North Carolina. During their off duty hours they publish a newspaper, "Bragg Briefs," which has been distributed to servicemen off the base. Pursuant to Army and Fort Bragg regulations, they submitted timely applications for permission to distribute "Bragg Briefs" at various public areas on the military reservation. The Commanding General denied each application on the grounds that the publications constituted a clear danger to the loyalty, discipline and morale of the military personnel under his command.^*  They now appeal from the refusal to grant a preliminary injunction against interfering with the distribution of the newspaper on the base.

The district court found that the evidence failed to show either a probability of plaintiffs' ultimate success on the merits or a clear denial of plaintiffs' constitutional rights. In the present posture of the case, we need only consider whether the action of the district court was a clear abuse of discretion. Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94 (4th Cir. 1950).

As a basic proposition, servicemen are entitled to the protections of the Bill of Rights, except where military exigencies, such as security and discipline, by necessary implication restrict their applicability. United States v. Jacoby, 11 USCMA 428 (1960). Within the military establishment, and under the regulations in question, the commanding officer has primary responsibility for determining the impact of the newspaper on the men in his command. Clearly the district judge did not abuse his discretion in refusing to grant the preliminary injunction. In so holding, of course, we express no opinion on the merits of the case.

Constitutional questions should be decided only when unavoidable, and this is particularly true when the issue is raised on appeal from an interlocutory order. When the case is heard on the merits, the parties should brief, and the district judge should decide, the appropriate standard of review of the Commanding General's decision. The district court should also find which articles, specifically, constituted a basis for the decision to exclude and why the Commanding General deemed them "a clear danger to the loyalty, discipline and morale" of the military personnel at Fort Bragg. Only upon a complete record supplying these facts can it be determined whether the Commanding General had a proper basis for denying the applications, whether he acted consistently with Army directives, and, ultimately, whether his actions deprived appellants of their First Amendment rights.

The order denying the application for a preliminary injunction is affirmed and the case remanded for further proceedings.