Appeal from the United States District Court for the District of Columbia (No. 91cv00397)
Before: Wald, Williams and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the Court filed by Circuit Judge Williams.
Dover Air Force Base is the site of the only mortuary operated jointly by the military services on the East Coast. For a substantial period before Operation Desert Storm, soldiers killed abroad (for instance, in Lebanon in 1983 and Panama in 1989) returned to the U.S. through Dover. These returns were events open to the public and press and were accompanied by ceremonies honoring the dead. Shortly before the start of Operation Desert Storm, the Department of Defense instituted a new policy, effectively shifting these events to sites closer to the families of the deceased and providing that the families would exercise veto power over press coverage. The Department explained that it was doing so to reduce the hardship on those of the bereaved who otherwise might have felt obliged to travel to Dover for the arrival ceremonies:
Therefore, it is the military departments' policy that ceremonies/services be held at the service member's duty or home station and/or the interment site, rather than at the port of entry. Media coverage of the arrival of the remains at the port of entry or at interim stops will not be permitted, but may be permitted at the service member's duty or home station or at the interment site, if the family so desires.
Public Affairs Guidance-Operation Desert Storm Casualty and Mortuary Affairs Para(s) 3 (Feb. 7, 1991), Joint Appendix ("J.A.") 123. There was no change in the pre-existing policy allowing civilians to witness other activities on the base, including outgoing transport of military personnel and supplies to the Persian Gulf, as long as such access was consistent with any other applicable restrictions.
JB Pictures and several other media and veterans' organizations and individual reporters challenged the Dover access policy on First Amendment grounds, arguing that precluding access to the war dead at Dover while permitting access to other activities-ones allegedly placing Desert Storm in a more positive light-constituted impermissible "viewpoint discrimination." The district court dismissed the complaint, finding no First Amendment violation. JB Pictures, Inc. v. Dep't of Defense, No. 91-0397 (D.D.C. Apr. 22, 1993). This appeal followed. The government on appeal suggests that the end of Desert Storm mooted the case. Because this defense is jurisdictional, it may be raised at any time. St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537 (1978); City of New York v. Baker, 878 F.2d 507, 510 (D.C. Cir. 1989). But the government effectively concedes that the press and public continue to be excluded from viewing the return of the bodies of deceased soldiers at Dover Air Force Base. *fn1 The ongoing policy of exclusion thus still affects news organizations and other groups that wish to witness and report on the return of soldiers killed in conflicts in which the United States is presently involved. At least some of the plaintiffs here claim a general and ongoing interest in military affairs, and thus they easily fall within the affected class.
On the merits, the plaintiffs recognize, as they must, that First Amendment rights to "freedom of speech, [and] of the press" do not create any per se right of access to government property or activities simply because such access might lead to more thorough or better reporting. "[T]he prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right." Zemel v. Rusk, 381 U.S. 1, 17 (1965). Thus the Court has found in the First Amendment only a qualified right of access. For example, in Pell v. Procunier, 417 U.S. 817 (1974), a case involving public and press access to prisons, the Court quoted and seemed to rely on a balancing test set forth in Branzburg v. Hayes, 408 U.S. 665 (1972), which upheld grand juries' power to question reporters about confidential sources in part on the ground that the Court could perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.
408 U.S. at 690-91 (quoted in full in Pell, 417 U.S. at 833). The Court has also held that in the case of proceedings that are traditionally open to the public and where public access enhances the proceeding, such as criminal trials, the public and press have a constitutional right to access unless the denial of access is necessitated by an "overriding" governmental interest and is narrowly tailored to serve that interest. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980) (plurality opinion); see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982) (requiring a "compelling" interest).
In Richmond Newspapers, the first case finding a right of access to criminal trials, the plurality distinguished Pell on the ground that prisons, unlike criminal trials, did not have a "long tradition of openness" to the public. 448 U.S. at 577 n.11. The Third Circuit appears to take the view that without such a tradition, a claim to access cannot succeed regardless of the relative strengths of the plaintiff's and government's interests. See Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1173-76 (3d Cir. 1986). We assume the approach more favorable to plaintiffs, the balancing test.
Recognizing that none of these precedents (which we apply shortly) affords them much probability of relief, plaintiffs focus their energies on arguing that the Dover access policy is "discriminatory" and "viewpoint-based." But the policy applies in a uniform fashion to all members of the press and public, regardless of their views on war or the United States military. It is thus altogether different from the decision struck down in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977), where the Secret Service had denied a journalist access to White House ...