Secretary of the Navy v. Avrech

1974-10-15

Headline: Military speech case: Court reverses appeals court ruling and allows enforcement of a broad military crime provision, making it harder for servicemembers to win vagueness challenges to military speech rules.

Holding: In the case text provided, the Court reversed the Court of Appeals and, assuming civilian court review, rejected the vagueness challenge to Article 134 because Parker v. Levy controls.

Real World Impact:

Overturns appeals court finding that Article 134 is unconstitutionally vague.
Makes it harder for servicemembers to win broad vagueness attacks on military speech rules.
Leaves unresolved whether civilian courts can review courts-martial in these circumstances.

Topics: military law, speech rights in the military, criminal law vagueness, court review of courts-martial

Summary

Background

A Marine servicemember (private first class Mark Avrech) was convicted by a special court-martial for attempting to publish a statement the military called disloyal to other troops. He was reduced in rank, lost pay, and briefly confined. Avrech sued in federal court, arguing the military statute (Article 134) was unconstitutionally vague and that his written statements were protected speech. The District Court denied relief, and the Court of Appeals reversed, finding Article 134 vague.

Reasoning

The Supreme Court declined to decide whether the civilian District Court properly had authority to review the court-martial decision. Assuming the District Court did have that power, the Court said a recent decision (Parker v. Levy) controls the outcome. Relying on that precedent, the Court reversed the Court of Appeals’ ruling that Article 134 was vague and therefore rejected Avrech’s facial vagueness challenge. The Government thus prevailed on the discrete legal issue the appeals court had decided.

Real world impact

As a result, the appeals court’s judgment that Article 134 is vague was overturned, making it more difficult for servicemembers to succeed in broad facial attacks to that military speech rule. The Supreme Court left open the separate question of when and how civilian courts can review courts-martial, saying that important jurisdictional issues should be resolved in a later case.

Dissents or concurrances

Justice Stewart concurred in the judgment because Parker controls the outcome. Justices Douglas and Marshall dissented, arguing for stronger First Amendment protection for service members or for further consideration of the constitutional claims.