LOCATION:Central Intelligence Agency Headquarters
DOCKET NO.: 73-206
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Third Circuit
CITATION: 417 US 733 (1974)
ARGUED: Feb 20, 1974
DECIDED: Jun 19, 1974
Charles Morgan, Jr. – for appellee
Robert H. Bork – for appellants
Media for Parker v. Levy
Audio Transcription for Opinion Announcement – June 19, 1974 in Parker v. Levy
Warren E. Burger:
The disposition of 73-206, Parker against Levy, will be announced by Mr. Justice Rehnquist.
William H. Rehnquist:
In this case, appeelle was an army physician with the rank of Captain.
He was assigned to a hospital at Fort Jackson, South Carolina.
In 1967, he was convicted by a General Court Martial of violations of Articles 90, 133 and 134 of the Uniform Code of Military Justice.
His Article 90 conviction was for willfully disobeying the hospital commandant’s order to establish a training program for Special Forces aide men.
His convictions under 133 and 134, which respectively punished conduct unbecoming an officer and a gentleman and all disorders and neglects to the prejudice of good order and discipline in the armed forces, were for making public statements which urged Negro enlisted men to refuse to obey orders to go to Vietnam and which referred to Special Forces personnel as liars, thieves, killers of peasants, and murderers of women and children.
After exhausting available military review, he sought habeas corpus relief from the District Court for the Middle District of Pennsylvania.
He claimed among other things that both Articles 133 and 134 were void for vagueness under the Due Process clause of the Fifth Amendment and overbroad in violation of the First Amendment.
The District Court denied relief, but the Court of Appeals for the Third Circuit reversed.
That Court held that even though appellee’s own conduct fell within one of the examples of Article 134 violations contained in the Manual for Courts-Martial, appellee had standing to challenge both that Article and Article 133 on its face.
The Court of Appeals went on to hold that both articles were void for vagueness and that a new trial was necessary because the joint consideration of the charges under those articles with the Article 90 charge might have prejudiced appellee’s right to a fair trial.
We reversed the judgment of the Court of Appeals for the Third Circuit.
We first hold that Articles 133 and 134 are not unconstitutionally vague.
Each article has been construed by military authorities to limit the broad reach of its language and to provide examples of the conduct it prohibits.
Because of the fact there is differentiating military from civilian society, Congress may legislate with greater breadth and flexibility when establishing rules governing the military and the vagueness standard applicable to criminal statutes regulating economic affairs applies to such rules.
Since appellee could have had no doubt that his own statements violated both Articles 133 and 134, his vagueness challenge must fail.
We also hold that Articles 133 and 134 are not overbroad.
The necessity for obedience and consequently for discipline in the military makes permissible there, what would not be permissible in the civilian contact.
There is a wide range of conduct to which Articles 133 and 134 maybe applied without infringing the First Amendment, because appellee’s own conduct falls clearly within that range.
We will not invalidate either Article 133 or Article 134 at his behest because there may be marginal applications of them which would infringe First Amendment values.
Finally, we reject appellee’s contention that his Article 90 conviction should be invalidated because to carry out the hospital commandant’s order would have been to participate in a war crime and because the order was given with knowledge that it would be disobeyed, solely to increase appellee’s punishment.
Appelle’s remaining contentions which were not passed upon by the Third Circuit should be addressed in the first instance by the Court of Appeals following our reversal and remand.
Mr. Justice Blackmun, with whom the Chief Justice joins while joining the opinion of the Court, has filed a concurring statement.
Justice Douglas has filed a dissenting opinion and Mr. Justice Stewart has filed a dissenting opinion which he will announce.
As my brother Rehnquist has said, I have filed a dissenting opinion in this case, which Mr. Justice Douglas and Mr. Justice Brennan have joined.
The Court today, reversing a unanimous judgment of the Court of Appeals, upholds the constitutionality of the two so-called general articles of the Uniform Code of Military Justice.
I find it hard to imagine criminal statutes more patently unconstitutional than these vague and uncertain general articles, and I would, accordingly, affirm the judgment before us.
As many decisions of this Court make clear, vague statutes suffer from at least two fatal constitutional defects; first, by failing to provide fair notice of precisely what acts are forbidden, a vague statute violates the first essential of due process of law.
No one may be required at peril of life, liberty or property to speculate as to the meaning of criminal statutes.
All are entitled to be informed as to what the State commands or forbids.
Words which are vague and fluid maybe as much of a trap for the innocent as the ancient laws of Caligula.
Secondly, vague statutes offend due process by failing to provide explicit standards for those who enforce them, thus allowing discriminatory and arbitrary enforcement.
It is plain that Articles 133 and 134 are vague on their face; indeed, the opinion of the Court does not seriously contend to the contrary.
Men of common intelligence including judges of both military and civil courts, must necessarily speculate as to what such terms as conduct unbecoming an officer and a gentleman and conduct of a nature to bring discredit upon the armed forces really mean.
As the reports of military courts in many decided cases clearly show the general articles are in practice as well as in theory, catch-alls, designed to allow prosecutions for practically any conduct that may offend the sensibilities of a military commander.
It is true, of course, that a line of prior decisions of this Court, beginning with the case of Dynes against Hoover, decided in 1858 and concluding with the case of Carter against McClaughry, decided in 1902, have upheld against constitutional attack the ancestors of today’s general articles.
With all respect for the principle of stare decisis, however, I believe that these decisions should be given no authoritative force in view of what is manifestly a vastly altered historic environment.
It might well have been true in 1858 or even in 1902 that those in the Armed Services knew, through a combination of military custom and instinct, what sorts of acts fell within the purview of the general articles.
Throughout much of this country’s early history, the standing army and navy numbered in the hundreds.
The cadre was small, professional, and voluntary.
The military was a unique society, isolated from the mainstream of civilian life, and it is at least plausible to suppose that the volunteer in that era understood what conduct was prohibited by the general articles.
It is obvious that the army into which Dr. Levy entered was far different.
It was part of a military establishment whose members numbered in the millions, a large percentage of whom were conscripts or draft-induced volunteers, with no prior military experience and little expectation of remaining beyond their initial period of obligation.
Levy was precisely such an individual, a draft-induced volunteer whose military indoctrination was close to zero.
To presume that he and others like him, who served during the Vietnam era, were so imbued with the ancient traditions of the military as to comprehend the arcane meaning of the general articles is to engage in an act of judicial fantasy.
In today’s vastly altered historic environment, the Dynes case and its progeny have become constitutional anachronisms, and I would retire them from active service.
The Court indicates that Dr. Levy should at least, have been aware that his conduct was violative of Article 134, since one of the specimen charges in the Manual relates to the making of statements “disloyal to the United States.”
That specification, and the brief reference to such conduct in the text of the Manual, is itself so vague and overbroad as to have been declared unconstitutional by at least one Federal Court.
But even if a consensus as to the meaning of the word “disloyal” were readily attainable, I am less than confident that Dr. Levy’s attacks upon our Vietnam policies could be accurately characterized by such an adjective.
However, foreign to the military atmosphere of Fort Jackson, the words spoken by him represented a viewpoint shared by many American citizens.
Whatever the accuracy of those views, I would be loath to impute disloyalty to those who honestly held them.
It is, of course, common ground that the military is a specialized community governed by a separate discipline from that of the civilian.
A number of serviceman’s individual rights must necessarily be subordinated to the overriding military mission, and I have no doubt that the military may constitutionally prohibit conduct that is quite permissible in civilian life, conduct such as questioning the command of a superior.
The question in this case, however, is not whether the military may adopt substantive rules different from those that govern civilian society, but whether the serviceman has the same right as his civilian counterpart to be informed as to what conduct those rules forbid before he can be criminally punished for violating them.
It maybe that military necessity justifies the promulgation of substantive rules of law that are wholly foreign to civilian life, but I fail to perceive how any legitimate military goal is served by enshrouding those rules in language so vague and uncertain as to be incomprehensible to the servicemen who are to be governed by them.
Indeed, I should suppose that vague laws, with their serious capacity for arbitrary and discriminatory enforcement, can in the end only hamper the military’s objectives of high morale and esprit de corps.
I do not, for one moment, denigrate the importance of our inherited tradition that the commissioned officers of our military forces are expected to be men of honor, nor do I doubt the necessity that servicemen generally must be orderly and dutiful.
An efficient and effective military organization depends in large part upon the character and quality of its personnel, particularly its leadership.
The internal loyalty and mutual reliance indispensable to the ultimate effectiveness of any military organization can exist only among people who can be counted on to do their duty.
It is, therefore, not only legitimate but essential that in matters of promotion, retention, duty assignment, and internal discipline, evaluations must repeatedly be made of a serviceman’s basic character as reflected in his deportment, whether he would be an enlisted man or a commissioned officer.
But we deal here with criminal statutes, and I cannot believe that such meaningless statutes as these can be used to send men to prison under a Constitution that promises due process of law.
Warren E. Burger:
Thank you, Mr. Justice Stewart.
William H. Rehnquist:
Mr. Chief Justice, I omitted to state that Mr. Justice Marshall took no part in the consideration or decision of this case.
Warren E. Burger:
Thank you, Mr. Justice Rehnquist.