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Shopco Distribution Co. v. Commanding General of Marine Corps Base

decided as corrected.: September 13, 1989.

SHOPCO DISTRIBUTION COMPANY, INC., A NORTH CAROLINA CORPORATION, PLAINTIFF-APPELLANT,
v.
THE COMMANDING GENERAL OF MARINE CORPS BASE, CAMP LEJEUNE, NORTH CAROLINA, IN HIS OFFICIAL CAPACITY, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Eastern District of North Carolina at New Bern. Malcolm J. Howard, District Judge. Case No. 87-112-CIV-4.

Hall, Circuit Judge, Haynsworth, Senior Circuit Judge, and Ellis, United States District Judge for the Eastern District of Virginia, sitting by designation.

Author: Ellis

ELLIS, District Judge

This case raises important questions concerning the scope of first amendment protection on military bases. The Globe is the Civilian Enterprise Newspaper*fn1 ("CEN") on the Camp Lejeune Marine Corps Base in Onslow County, North Carolina. Camp Lejeune's Commanding General granted The Globe preferential distribution rights over other non-subscription publications. Appellant, publisher of The Shopper, an advertising circular, challenges the constitutionality of this order. In a clearly reasoned opinion, the district court granted the Commander's motion for summary judgment. Shopco Distribution Co. v. Commanding General of Marine Corps Base, Camp Lejeune, North Carolina, 696 F. Supp. 1063 (E.D.N.C. 1988). We also find no constitutional infirmity in the Commanding General's order and thus affirm the district court's decision.

I

Camp Lejeune is the major Marine Corps training facility on the East Coast. Several units, including the Second Marine Division, and over 110,000 personnel are either stationed or employed there. Although Camp Lejeune is not open to the general public, five of the nine family housing complexes on the base have free vehicular entry. These five "open" housing areas are not located near any civilian residential areas and are easily identified as part of Camp Lejeune. Access to them is restricted to residents, invited guests and those on official business. Signs are posted informing visitors of these restrictions. Base regulations also prohibit door-to-door solicitation at all base housing areas. Military Police routinely enforce all restrictions. Access to the remainder of the base is controlled by armed sentries. A number of off-base pizza and laundry delivery services regularly furnish pick-up and delivery services to base housing areas upon receiving telephone orders.

In the performance of his duties, the Commanding General must communicate with both military and civilian personnel on base. 32 C.F.R. § 297.5(d)(1)(i). To facilitate this communication, the Secretary of Defense has promulgated regulations permitting commanding officers, such as Camp Lejeune's Commanding General, to distribute free newspapers which include information not normally found in commercial publications. 32 C.F.R. § 297 et seq.*fn2 These newspapers are the primary means by which commanding officers communicate important information to personnel. 32 C.F.R. § 297.5(d)(1)(i). They fall into two categories. Armed Forces Newspapers are published directly by the military, and the costs of publication are borne by the government. 32 C.F.R. § 297.3(b)(2). On the other hand, CENs, like The Globe, are published and paid for by civilian publishers pursuant to contracts with individual bases. 32 C.F.R. § 297, Encl. 2, para. A. The civilian publisher may cover its costs and earn a profit through the sale of advertising. Id. Thus, the CEN allows base commanders to disseminate important information at no cost to the government.

As required by federal regulation, The Globe's editorial content is prepared solely by the Camp Lejeune public affairs staff. 32 C.F.R. § 292.3(b)(1). Its content is subject to significant regulation. The Globe, for example, may not use articles derived from commercial news or opinion sources. 32 C.F.R. § 297.5(b)(5). News coverage must be factual, objective and in good taste. 32 C.F.R. § 297.5(b)(1). Articles must clearly differentiate between statements of fact and expressions of opinion. The latter must be attributed to a specific source. 32 C.F.R. § 297.5(b)(2). All articles must be balanced and accurate. Id. No article may contain news or editorials relating to political campaigns. 32 C.F.R. § 297.5(b)(8). Nor is political polling or the publication of political polls allowed. 32 C.F.R. § 297.5(b)(10). If paid political advertisements are published, The Globe must give all legitimate opposing candidates equal opportunity to advertise. 32 C.F.R. § 297.5(b)(8).

Since advertising is expected to cover the costs of publishing a CEN, there is, understandably, a relationship between the amount of advertising the CEN attracts and the space available in the CEN for the dissemination of information by the base commander. In general, the more advertisements received, the more pages are published, hence more space is available for base material. More specifically, the civilian publisher of The Globe is obligated to publish a base article only if it has sold enough advertising to cover production costs for the page on which the article is included. Although the commercial publisher supervises the advertising portions of CENs such as The Globe, the Commanding General may review the contents of the advertisements and prohibit distribution if the advertising poses a threat to the "loyalty, discipline, or morale" of personnel. 32 C.F.R. § 297, Encl. 2, para. H. Notwithstanding this degree of control, CENS are considered non-governmental publications.

The Globe was not always a CEN. Historically, it was an Armed Forces Newspaper, published at government expense. Not until 1981, did it become a CEN. Then and for the next six years, the appellant published The Globe. But in June 1987, following a competitive bidding process, appellant lost The Globe publishing contract to Jacksonville Publishing Company. Appellant now publishes only two publications, TV Focus and The Shopper. Only the latter is relevant here.

The Shopper is an advertising circular distributed throughout Onslow County. Its contents consist primarily of commercial advertisements and a variety of public service announcements. In civilian residential areas, The Shopper is typically distributed door-to-door in plastic bags hung on the doorknobs of individual residences. The Shopper was similarly distributed in Camp Lejeune's housing areas from its inception in 1975. This door-to-door delivery of The Shopper was effected pursuant to permission from Camp Lejeune authorities. Indeed, throughout the period appellant published both The Globe and The Shopper, the papers were distributed door-to-door together. No complaints were ever received concerning either The Shopper's contents or its mode of delivery.

Although appellant lost the contract to publish The Globe in June 1987, it continued its practice of distributing The Shopper door-to-door at Camp Lejeune. During July 1987, the Commanding General was informed that if appellant continued to distribute The Shopper door-to-door, The Globe's ability to attract advertising, and hence its ability to publish Camp material, would be adversely affected. Accordingly, the Commanding General directed the Camp Lejeune public affairs officer to inform appellant that it could no longer distribute The Shopper door-to-door. Instead, The Shopper's distribution was restricted to 2000 copies of each issue in stacks located at various shopping and gathering places throughout Camp Lejeune. Appellant requested reconsideration of the limits placed upon The Shopper's distribution. In response, the Commanding General reviewed the Base Order regarding the circulation of non-governmental printed material at Camp Lejeune. Following this review, the Commanding General published a new Base Order regulating distribution of printed materials. Under the new Order, publications approved for distribution within Camp Lejeune fall into two classes: subscription and non-subscription. Subscription publications may be delivered to the doors of subscribers residing at Camp Lejeune housing areas. Subscription publications may not, however, send persons door-to-door to solicit subscribers. Non-subscription publications, like The Shopper, may not be delivered door-to-door on Base; their distribution is limited to 5,000 copies from racks placed by the distributor at 29 common locations at Camp Lejeune. The new Base Order is in accordance with federal regulations which provide that, except for CENs and Armed Forces Newspapers, non-subscription publications "shall be made available only [by being placed] in specific general use areas specified by the commander. . . ." 32 C.F.R. § 297, Encl. 5, para. D. Among the non-subscription publications distributed at Camp Lejeune, only The Shopper and The Extra had previously been distributed door-to-door. The remainder of the non-subscription publications had traditionally been distributed in general use areas. Appellant's authorized distribution of The Shopper was increased from 2,000 to 5,000 copies in accordance with the new Base Order.

Appellant believes distribution in general use areas does not allow it to communicate effectively with the residents of Camp Lejeune, a major segment of the consuming public in Onslow County. Appellant, therefore, now mails The Shopper to residents of Camp Lejeune at a cost of $400.00 per week. Because the mailing costs far exceed the costs of hand delivery, appellant contends that the continued economic viability of The Shopper is threatened. For this reason, appellant filed suit contending that the Commanding General's actions violate appellant's right to freedom of commercial speech under the First Amendment and its equal protection and ...


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