Anti-war protesters lose case against West Point

Military installations like West Point are no-speech zones, even though West Point is also a college and cultural center. But even no-speech zones cannot allow for viewpoint discrimination. A case went to trial three years ago alleging that anti-war protesters were kicked out a West Point basketball game because of their T-shirts. The jury rejected that claim, and the Court of Appeals affirms.

The case is Dolman v. Horner, a summary order decided on October 18. The Second Circuit (Raggi, Pooler and McLaughlin) summarizes the case:

On February 28, 2004, the Plaintiffs attended a basketball game - open to the public - at West Point. When the national anthem played, they stood up, removing their jackets and revealing t-shirts spelling out “US OUT OF IRAQ.” Shortly after, John Spisso, the facilities manager, told Plaintiffs they could either remove their t-shirts or leave the arena. The Plaintiffs agreed to leave the arena. Garrison Commander Ann Horner sent each of the Plaintiffs a letter barring them from “all areas of West Point” for a period of five years, based on the incident.

You have to remember that this incident took place at the height of the Iraq war controversy. Showing up to a West Point event with anti-war T-shirts was no way to make friends. But if they were thrown out of the game because they were anti-war, then they win the case, because even military installations cannot discriminate based on viewpoint. The jury found for defendants. The Court of Appeals affirms, reasoning that the jury could find that the decisionmakers were not motivated to discriminate against the protesters but instead thought they were enforcing a legal no-demonstration policy:

The district court properly determined that the Plaintiffs failed to satisfy the high standards required to overturn a jury verdict. While the record does contain evidence in support of the Plaintiffs’ case, the record also contains ample evidence from which a reasonable jury could find in favor of defendants. Specifically, a reasonable jury could find that regardless of whether a specific written policy existed prohibiting organized demonstrations at West Point, both Spisso and Horner believed demonstrations were not permitted at West Point, and that belief - not viewpoint discrimination - motivated the removal of Plaintiffs and the subsequent barment order. Moreover, a reasonable jury could conclude that defendants considered the t-shirts as the vehicle for the demonstration, and barred Plaintiffs based on their group effort in conveying the message, rather than for the message itself.