Legal Commentary

Court Strikes Down Military Base?s Ban on Anti-Islam Car Decals

By Eugene Volokh

The case is Nieto v. Flatau (E.D.N.C.), decided a week ago. Camp Lejeune policy banned the display of ?extremist, indecent, sexist or racist? messages on cars. Mr. Nieto had been required to remove from his car an ?Islam = Terrorism? decal, a ?Disgrace My Countries [sic] Flag and I will SHIT On Your Quran? decal, a ?decal depicting an Islamic crescent moon and star with a diagonal line superimposed upon them and the words ?No Quarter? and ?Islamic Terrorist,?? and a ?decal depicting Calvin urinating on Muhammad.? The latter, I?m quite sure, must have been a reference to noted religious leader John Calvin?s pungent criticisms of Islam.

The court concluded that the base was a nonpublic forum, and that the government as proprietor of the base could therefore restrict speech in reasonable and viewpoint-neutral ways. But, the court ruled, the restriction was applied in a viewpoint-based way:

Plaintiff has been prohibited from displaying anti-Islamic messages, such as ?Islam = Terrorism.? Yet, testimony by defendants establishes that decals espousing pro-Islamic messages, such as ?Islam is Love? or ?Islam is Peace? would be permitted upon the Base.

The court?s analysis strikes me as quite right: Though military bases are indeed treated as nonpublic fora (even when they look much like normal city blocks), viewpoint-based restrictions on private speech are impermissible even on nonpublic fora. The government may impose even viewpoint-based restrictions on the speech of soldiers, and in some situations on the speech of civilian employees. But this power doesn?t extend to its actions as proprietor, applicable to all speech on base property.

The court also opined, in my view incorrectly, that the ban on ?extremist, indecent, sexist or racist? messages was ?viewpoint neutral on its face? because it applied ?without regard to any particular message or point of view.? That can?t be right; singling out ?sexist? and ?racist? messages is based on the viewpoint of the messages, and the same would likely be true as to the ban on ?extremist? messages. But in any event the court was right that the broader government action was indeed based on viewpoint, since it banned anti-Islam viewpoints while allowing pro-Islam ones.

For more, see this Stripes article. Thanks to Religion Clause for the pointer.