Court Upholds Ban on Military Retirement Home Residents’ Wearing Political Clothing in Public Spaces

The Court has in the past upheld restrictions on political activity (such as candidate speeches) on military bases, see Greer v. Spock (1976), and lower courts have upheld restrictions on speech by outsiders on various kinds of government property, including military bases. But when may the government restrict speech by people who actually live on government property—military bases or otherwise—and who aren’t active duty military or even other government employees?

The issue has come up fairly rarely, but at least some cases have recognized that residents of various kinds of public housing retain broad constitutional rights on that property. Resident Action Council v. Seattle Housing Authority (Wash. 2008) is one example; that case struck down a “[public] housing regulation prohibiting the posting of signs on the exterior of resident apartment doors” by the residents. See also, e.g., Walker v. Georgetown Housing Authority (Mass. 1997). But in Friday’s Fuselier v. RisCassi, Chief Judge Halil Suleyman Ozerden (S.D. Miss.) upheld a limit on wearing political clothing in public spaces at a military retirement home. An excerpt:

Plaintiff … is a Vietnam War veteran and long-term resident of the Armed Forces Retirement Home—Gulfport, a gated, guarded, all-inclusive residential retirement home located on the shores of the Gulf of America …. [T]he “administration of the Retirement Home” is “under the control and administration of the Secretary of Defense” …

The AFRH-G … prescribes certain rules for its residents, such as requiring them to complete a “leave form” if they intend to leave campus for more than twenty-four hours, and it prohibits drinking alcohol (except in designated areas) and possessing a firearm on campus. It also prohibits conduct and dress—in common areas—that it deems “inappropriate.” One class of apparel deemed “inappropriate” is “political” apparel:

1. Conduct: Residents are expected to conduct themselves in a manner that will promote harmony, safety, security and consideration of others. Negative behavior, such as using racial slurs, engaging in confrontations, swearing, and damaging the property of other Residents will not be tolerated … Signs and apparel of racial, sexual, political, or ethnic slogans are not permitted ….
2. Dress: In public spaces, Residents are expected to wear clothing that is clean, neat, serviceable, and conducive to adult living. Apparel with racial, sexual, political, or ethnic slogans is considered inappropriate dress at the AFRH-G ….

{[W]eekly bulletins issued in June and July 2023 limited the political apparel restriction to “current” political candidates.}

As a “passionate supporter of President [Donald] Trump and other Republican political candidates and officials,” Fuselier wants to show his support by donning apparel and displaying signs with political slogans in campus common areas. For example, he wishes to wear apparel with the slogans “Trump 2024 Save America Again!” and “Let’s Go Brandon,” and adorn his orthopedic walker with slogans like “Vote Republican Vote MAGA” and “Tate Reeves for Governor.” …

[After AFRH refused to let him wear and display political slogans, in] late June 2023, Fuselier “affixed two printed signs to his orthopedic walker while in the common areas” of the retirement home. One sign stated “2024 – Make Us Great Again” and the other stated “Let’s Go To Brandon MS.” According to Plaintiff, the Resident Officer “ordered him to remove the signs” and informed him that refusing to comply could result in an “administrative hearing,” and possible eviction.

The court concluded that the government property was a “limited public forum” exists “where a government has reserved a forum for certain groups or for the discussion of certain topics.” On such property, restrictions are constitutional if they’re viewpoint-neutral and reasonable, and the court said these restrictions qualified. Some excerpts:

The [purpose of] AFRH-G … is to provide “residences and related services” to veterans, not to foster a rich educational environment. These services are primarily mental and physical health services to assist aging veterans. And the AFRH-G is a gated and guarded federal facility that employs active-duty military personnel.

These unique characteristics … make the AFRH-G incompatible with political speech. Permitting political expression, such as allowing Fuselier to don apparel with political slogans like “Lets Go Brandon,” a well-known euphemism for the phrase “F*** Joe Biden,” might disrupt the AFRH-G’s unique environment which seeks to provide residences for veterans and foster resident physical and mental health, while preserving an environment suitable for active-duty military personnel. Such political speech disrupts that environment because it is adverse to the AFRH-G’s mission and undermines the military’s long-standing historical tradition of promoting the appearance of political neutrality among the active-duty personnel working at the Home. See, e.g., Parker v. Levy (1974); Greer (“[M]embers of the Armed Forces stationed at Fort Dix are wholly free as individuals to attend political rallies, out of uniform and off base. But the military as such is insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates.”)….

The Government has a legitimate and reasonable interest in promoting harmony among residents, visitors, and employees at the AFRH-G because of the unique nature of the forum. The AFRH-G’s purpose is to provide residences and related services, primarily mental and physical health services, to veterans. It is also a gated, guarded, federal facility that employs active-duty military personnel and reports to the Department of Defense.

In Preminger v. Secretary (Fed. Cir. 2008), the Federal Circuit evaluated the Menlo Park Medical Center, which consisted of “buildings and outdoor, communal areas,” “a teaching hospital,” “three nursing homes,” and “a domiciliary for homeless veterans.” The court concluded that the campus was a nonpublic forum and that a restriction on “partisan activities” by “visitors” was reasonable because “[t]he VA must be able to maintain a place of healing and rehabilitation for the veterans for which it provides services. Demonstrations and other disruptions could interfere with the VA’s ability to provide those services and could impede the VA’s ability to carry out its mission of caring for veterans.” And in Preminger v. Principi (9th Cir. 2005), the Ninth Circuit concluded that a restriction on “partisan activities” that prevented the plaintiff from soliciting voters at a VA nursing home was reasonable “in order to prevent the appearance of partisan affiliation.”

Those same justifications apply equally to the AFRH-G. Maintaining a place of healing for residents reasonably may require certain limitations on kinds of speech and expression that might interfere with its congressional mandate.

This is especially true in this context because active-duty military personnel work on campus and might inadvertently be pictured or associated with residents engaging in political speech, undermining our Nation’s history of a politically neutral military. In this unique context, the Government has a legitimate interest in promoting harmony on campus….

James E. Graves, III and Jessica Bourne Williams represent the government.