McGOWAN, Circuit Judge:
Appellants filed in the District Court an action for injunction and declaratory relief, requesting that certain actions and alleged failures to act on the part of appellee, the Secretary of Defense, be declared invalid on constitutional and other grounds. Specifically, the court was asked to order the Secretary to reverse a decision of the Department of Defense denying to appellants the use of certain newsstand facilities of military post exchanges in the Far East for the purpose of selling their newspapers. Appellants also sought a preliminary injunction.
The facts as recited hereinafter are founded upon allegations in the complaint and in various supporting documents and affidavits. Appellants are a publishing corporation and its chief executive officers. For the past sixteen years, Overseas Media Corporation has published in Europe Overseas Weekly and a companion weekly, Overseas Family. The readership of the papers has primarily been drawn from the ranks of American non-commissioned service personnel and their families. Overseas Weekly styles itself as "the acknowledged champion of the American G. I." and, as such, claims to have performed important services of the kind traditionally associated with the vigorous reporting of facts of public interest and concern which might otherwise have remained unrevealed.
The weekly editions of the two papers have been distributed in Europe by Stars and Stripes, a military paper familiar to most servicemen, which holds concession rights for post exchange newsstands operated by the Army and Air Forces' European Exchange Service, and which receives a substantial commission for its services. With American activity in the Far East increasing dramatically in 1965, the distribution balance of servicemen began to shift, with more and more troops arriving in Viet Nam and smaller yet significant numbers departing from Europe for the former destination. That trend has not as yet reversed itself. In light of this shift, and because Overseas Weekly had "received numerous letters from individual servicemen and company commanders and officers in the field requesting distribution of Overseas Weekly in Viet Nam and the Pacific area," appellants decided to publish a Far East edition of this newspaper and to seek distribution facilities throughout the area.
There appear to be three methods by which newspapers and periodicals are purchased for military newsstands in the Far East.
Appellants decided to print a Far East edition of their paper in Hong Kong, or other similarly situated Asia city, and to send each weekly edition by commercial air freight to post exchange distribution centers throughout the area. To further this objective, they wrote, in March, 1965, to the Far East Exchange Service in Yokahama, Japan, seeking instructions on the approved procedure for obtaining rights to use military newsstands. For some months this request was channelled through a number of regional exchange offices. Finally, in August, 1965, the President of Star Distributing Company informed Overseas Media that, because of space limitations, "we do not wish to handle these [publications] on our newsstands" in Viet Nam.
After further contacts with service exchange personnel had proven fruitless, appellants approached Mr. John C. Broger, Directorate of Armed Forces Information and Education, Office of the Secretary of Defense (Manpower). In sworn affidavits in the district court, appellants alleged that "we asked Mr. Broger what were the criteria or the formula for getting approval for distribution in the Far East through the Exchange System. He said, in effect, there were no criteria, but he would attempt to set up a committee to devise a formula which would enable publishers to learn how to go about getting approval." This was not done; and appellants next arranged a conference with Mr. Thomas D. Morris, Assistant Secretary of Defense (Manpower), who affirmed that "there were no established criteria for obtaining distribution rights in the Far East and said he preferred to leave such decisions to the Post Exchanges themselves. He added, however, that if inaction on their part was tantamount to commercial discrimination or unfairness, he would intervene." On the advice of the Defense Department, appellants reapplied for distribution rights through the same channels they had previously attempted, only to be met again with similar rebuffs. Appellants further alleged, by way of affidavit in the district court, that over 30 additional publications were granted access to military newsstands in the Far East after Overseas Weekly was denied such access.
In view of their complete failure to win approval for Exchange distribution, and acting on a suggestion of the Defense Department, appellants next attempted to ascertain the feasibility of selling Overseas Weekly without benefit of competitive access to the military newstands. A special Far East edition of the paper was replated in Frankfurt and commercially airlifted to Saigon. Copies were hawked on the streets of the city, and the entire edition was soon sold out. Encouraged by this success, appellants asked the Defense Department, through Assistant Secretary Morris, to furnish them a "no objection letter," assertedly a sine qua non of the publication and distribution of newspapers in certain Far Eastern countries, without falling afoul of the ban
After an invocation of the good offices of the Secretary of Defense resulted in a letter from his Acting General Counsel reaffirming the position of Secretary Morris, the appellants filed suit on July 25, 1966.
Appellants' complaint the prayer for relief of which is set out in the margin,
The court heard both parties at some length, and then delivered an oral opinion granting appellee's motion. Being of the view that "military authorities have full discretion to determine what items of merchandise to handle," the court reached the conclusion that
It thus appears that the grant of summary judgment was based upon the view that, no matter what facts might be proven, the court was without jurisdiction to grant any relief.
It thus appears to us that, at least upon this appeal, the multiple issues raised by the parties can be reduced to a single one, namely, does the Secretary of Defense, purportedly acting without reference to established criteria,
Appellee suggests that action of the Defense Department is totally insulated from judicial review because it falls into "[t]wo categories of governmental determinations which have traditionally been viewed as `committed to agency discretion' and thus not judicially reviewable."
With respect to this first category, we note that we deal here with a matter far removed from what is ordinarily subsumed under the head of military operations. It is — and must — be true that the Executive should be accorded wide and normally unassailable discretion with respect to the conduct of the national defense and the prosecution of national objectives through military means. The power of the armed services to make their dispositions of men and materiel, and to take measures for the safeguarding of each, does not admit of fragmentation.
There is, however, only one aspect of the record before us which seems related to the conduct of military operations. This is the statement of Assistant Secretary Morris, which appears to be limited to Viet Nam, that "in consideration of the saturated condition of the aerial distribution system in-country, there appears to be no justification for changing or expanding the list of representative publications now on order by the Army-Air Force Exchange Service." If the military authorities bearing the awesome responsibilities of Viet Nam concluded that transport was needed for other things than newspapers, judicial scrutiny of such a determination might well be wholly unfeasible. But the allegation is that, after this statement was made, over 30 publications were added to the list of newspapers and periodicals available to the exchanges in Viet Nam. The allegation also is that appellants do not propose to use military transport in order to get their papers to Saigon; all they need to effect distribution there and in other countries of the Far East, without utilization of any military facilities whatsoever, is a "no objection" letter. Thus, in the light of these allegations — which may or may not prove to be true — it is impossible to say at this time that the necessities of military operations justify appellee's refusal to respond to appellants' requests.
Appellee alternatively contends that his decision fell into the area of procurement, and that his discretion in the purchase of supplies is not subject to question.
118 U.S.App.D.C. at 184-85, 334 F.2d at 574-75.
It is so ordered.
1. Declaring that the banning of the Overseas Weekly in the Pacific area violates the First Amendment and the due process clause of the Fifth Amendment to the Constitution of the United States.
2. Declaring that the act and purpose of the defendant, in the purported performance of his duties as Secretary of Defense, as hereinabove alleged, has violated and violates the First Amendment to the Constitution of the United States, and enjoining and restraining the defendant, his agents, servants and employees from continuing the said act.
3. Issuing a preliminary injunction and a permanent injunction enjoining the defendant, his successors and subordinates, from denying Overseas Weekly distribution facilities in the Pacific area, on the grounds that such denial is unconstitutional, and directing defendant to make distribution facilities in the Pacific area available to plaintiffs, on the same basis that such distribution facilities have been and are being made available to other publications.
4. Declaring that the banning of the Overseas Weekly from distribution facilities in the Pacific area was imposed without observance of procedural requirements and was arbitrary and capricious and hence was an abuse of discretion by the defendant.
5. For such other relief as this Honorable Court may deem necessary and appropriate."
310 U.S. at 132, 60 S.Ct. at 879 (Emphasis added.) Appellants here show far more than "a mere possible injury to the public." They allegedly have suffered grave financial losses in the past few years and continue to do so. They do not attack a broad governmental decision applicable to an entire industry, but a ruling applicable to them alone which prevents their publishing Overseas Weekly in an area where a not insignificant number of their proven readers are residing. While we do not here suggest that the readers of appellants' newspaper have an enforceable interest in receiving the paper, we do suggest that appellee reads Lukens Steel too broadly. We note also in passing that Mr. Justice Black wrote Lukens Steel long before the Administrative Procedure Act, and its review provisions, were enacted into law.
Secretary McNAMARA. I would say (a) I would not buy it as a periodical and as a private individual; (b) I would not recommend that it be bought by any associate of mine or any subordinate of mine; (c) I would recommend specifically that they not buy it; (d) I am not exactly certain what I would do specifically if you asked me if I would take steps to prevent its distribution.
This is a serious problem. It relates to the freedom of the press. That is one of the things we stand for.
There are far worse periodicals than this being distributed today in the United States that your children, my children, are all exposed to.
I always wonder whether we should not be setting higher standards both as they relate to the distribution of printed matter and as they relate to the distribution of matter over the air, but it is a difficult question and I would want to think long and hard before I took the action to prohibit the distribution of this material and to make impossible the acceptance of it by troops or other citizens of this country.
Senator THURMOND. Mr. Secretary, the question is not whether you would try to prohibit the sale of it and prohibit free speech. The question is if you were making the decision today as to whether our servicemen overseas should have this paper, this sexy, malicious, low paper sent with the Stars and Stripes to our servicemen, whether or not you would permit it if you were making that decision today.
Secretary McNAMARA. I do not believe that it is sent with the Stars and Stripes to the servicemen. I believe it is made available for purchase by them, and the question would be should its availability for purchase be eliminated, and I am — frankly, I cannot answer the question. It is an extremely difficult question.
I would wish the counsel of my General Counsel, and the counsel of others in the Department before I made the final answer.
* * * * *
Senator THURMOND. Do you or not have the power as Secretary of Defense to discontinue assuming responsibility for the distribution of this Overseas Weekly even if Stars and Stripes is getting 40 percent or $100,000 a year, as I understand they are getting?
Secretary McNAMARA. I believe that as a practical matter, whether as a legal matter I cannot say for sure, but as a practical matter I believe I have the power to make it very difficult for one of the members of the Armed Forces to obtain that paper at the same point of distribution at which they obtain Stars and Stripes.
Senator THURMOND. You have taken no steps, of course, to try to prevent freedom of speech, and properly so. But aren't you assisting in the distribution of this putrid material when you allow the Stars and Stripes to distribute this paper along with the official Stars and Stripes for which the taxpayers of this country pay?
Secretary McNAMARA. No, sir; I do not believe I am assisting in its distribution. As I implied by the answer to your previous question, I think that I should be asking myself as I have, and as you are now, whether I should not utilize all the power I have available to me to put roadblocks in the way of its distribution.
I have been asking myself that question. The paper is distributed in the European theater, and it has taken me some time to obtain the information on which I may base an answer.
The information I have so far from the commanders concerned, four-star generals, two or three of them, plus subordinates of theirs, and the recommendations they have made all point to a continuation of the present policy.
I must say I find it a little difficult personally to accept that recommendation. I have not accepted it finally. The matter is still under consideration.
The points you raise are very valid points. There are, from my point of view, even more serious charges that may be made against it in terms of accuracy of reporting and appropriateness of editorial comment.
But these matters are still under consideration and, as I say, they involve some of our basic freedoms. The issues are very complex, and I want to be certain that I have considered them fully and properly before making a final decision.
Hearings before the Committee on Armed Services of the U. S. Senate on S. Res. 191, 87th Cong., 1st Sess. 45, 46 (1961).
Legislative History of the Administrative Procedure Act, Senate Doc. No. 248, 79th Cong., 2d Sess. 310-11 (1946).
118 U.S.App.D.C. at 185-86, 334 F.2d at 575-576. (Footnotes omitted.)