By Denise Ouellet
This past week, a Marine was cleared of charges that he mis-handled classified information by allowing it to pass to a civilian group and disobeyed orders by agreeing to an interview with a newspaper reporter. This case made me wonder exactly what the limitations are on free speech for people in the armed forces who hold classified information. Are they bound by secrecy forever and what else are they not allowed to say?
As it turns out, our active duty military personnel are barred from saying and doing a lot more than revealing classified information. For instance, Article 88 of the Uniform Code of Military Justice (UCMJ) makes it a punishable act for an active duty member of the military to make negative comments about the president, vice president, and other United States political officeholders such as the governors of any state. The text of this Article reads:
“Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”
Article 2 of the UCMJ requires retired members to abide by the UCMJ for life. This means that for their entire life, even after retiring from service, military persons can be punished for making a bad comment about the president. The limitations of this radical law are not clear. If an officer made a joke at a dinner party thirty years after leaving the military honorably, would it really make sense to punish him? This, unlike protecting classified information, doesn’t seem to advance any national interest, so why does no one protest this dramatic limitation on free speech? The only thing preventing radical occurrences like the dinner party mentioned above are other laws that make it impossible to bring a non-active duty member into a military court. Therefore, they can’t technically be punished for violating Article 2, but why should we leave the law on the books at all?
For active military members, the rule is over-bearing and limits not just public comments but prevents general outward expression of discontent. Albeit a few years old, this blog post examines whether military persons in Iraq are prevented from demonstrating discontent with the war.
It doesn’t end there. Department of Defense Directive 1344.10 specifically prohibits active duty members from a host of political activities ranging from running for office to simply attending an event that politically sways one way or another. Directive 1344 lists, fairly clearly exactly what a member can and cannot do. It includes several free speech violations including writing editorials to newspapers or preparing other communications that support or criticize a political figure. It seems outrageous that there are such significant, blanket rules that do not seem to serve a national interest equal to the activity they prevent.
The government justifies the limitations on free speech in the military as necessary to maintain civilian control of the military. In 1967, in United States v. Howe, the Military Court of Appeals affirmed the conviction of a second lieutenant based in Texas that was observed carrying a sign with comments suggesting to end President Johnson’s term and found guilty of using contemptuous words against the President and conduct unbecoming an officer and gentleman. (See 17 United States Court of Military Appeals 165, 37 Court-Martial Reports 429 (1967)). The reasoning in this case hearkens back to the earliest laws of war in which the military had to be controlled by these types of laws to prevent a military coup. A 1974 Supreme Court decision, Parker v. Levy, (417 U.S. 733 (1974)), the Court used the following rationale from a U.S. Military Court of Appeals decision to justify the free speech restrictions:
“In the armed forces some restrictions exist for reasons that have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.”
There does not appear to be any balance in preserving the First Amendment rights of the members of our military. It appears that the national interest warrants an absolute ban on a limitless amount of speech that would otherwise be protected. It’s an area where the government has placed a bottle top on and no one seems to be trying to get out. With the prevalence of social media tools such as Twitter and Facebook, it’s only a matter of time before the military brings an action against a member to punish him/her for an inappropriate comment made while casually talking online. Maybe then light will be cast on this area of the law and we will be forced to reexamine the rights lost under these directives.