Legal Commentary

From the Religion Clause blog (via my co-author Tom Baker) coms news of Nieto v. Flatau, a First Amendment case from North Carolina that struck down a military base regulation banning the display of "extremist, indecent, racist or sexist messages" on a motor vehicle, as applied to a civilian-employee motorist's display of decals attacking Islam.  The Court -- absolutely correctly -- held that the military base (Camp Lejune) was a non-public forum, which meant that a speech regulation can be content-based, as long as it is viewpoint-neutral (and reasonable).  And the court -- again correctly, I think -- held that the regulation, at least as applied here (more on that idea later), was viewpoint-based, since the defendant conceded that pro-Islamic decals would be allowed.

I think the court got to the right result under current First Amendment doctrine.  But it took an interesting turn that I'm wondering about.  The court stated  (at page 13) that the regulation, quoted above, was facially viewpoint-neutral.  (The court also concluded that it was content-based, which I think is clearly right.)  But then it held that, as applied to the plaintiff's display of his decals, it was viewpoint-based.

I wonder about that turn.  The court states (page 13) that the regulation "prohibits certain categories of speech (i.e., extremist, indecent, sexist or racist), but without regard to any particular message or point of view."  Really?  I would have thought that, say, a restriction on racist speech not only restricts speech about race (thus, speech on a particular topic) but speech with a certain viewpoint (i.e., one of intolerance, or hate, or inequality, or what have you).  I would have thought, then, that the restriction was inherently viewpoint-based -- that is, viewpoint-based on its face.  I know content and viewpoint-neutrality questions are sometimes difficult, but I wouldn't have thought this would have been one of those difficult questions.

I also wonder about the impact of this rule on military bases generally, though here I'm less skeptical of the court's opinion and more simply curious about its implications.  Are other military zones -- say, military bases abroad -- subject to these same First Amendment rules?  Does a US military base in Germany have to tolerate Americans driving around with anti-German bumper stickers, unless they want to ban pro-German stickers as well?  I suppose what I'm wondering about, doctrinally, comes down to the strength of the government interest in even a viewpoint-based rule: is it a compelling government interest that it doesn't want its personnel publicly expressing dislike of the host nation or its people? 

Even as I ask that question I sense the concern about censorship, even in this context.  Still, I can't imagine that, say, our bases in Iraq allow even civilian personnel to exhibit anti-Iraqi or anti-Islamic decals -- or maybe I'm just naive about that.  (I can imagine the base commander tolerating private statements and maybe even semi-privately displayed decals and such, maybe for enforcement or morale reasons.)  But if I'm right about restrictions on public displays (and let's say, by civilian personnel), what's the reason?  Is it that the First Amendment simply doesn't apply at all in those contexts?  Or are those types of bases (foreign? near active combat zones?) some sort of super-duper non-public forum, where even viewpoint-based restrictions pass muster?