Military expression

Military expression is an area of military law pertaining to the United States military that relates to the free speech rights of its service members.^{[1][2][3][Full citation needed]}

Limitations on military expression

While the civilian population of the United States is afforded the right to free expression under the First Amendment, the U.S. Supreme Court has affirmed the notion that service members have a reduced level of free speech.^{[4][Full citation needed]} While the Court acknowledged that service members do have First Amendment rights, these rights are limited.

"They do, in fact, have the same first amendment rights as their civilian brothers. They are, however, not absolute...The difference is that the military has peculiar needs and interests apart from those of the civilian community it serves, and they preclude the exercise of the right of free speech on as broad a basis as is the practice in the civilian community. No officer or man in the armed forces has a right, be it constitutional, statutory or otherwise, to publish any information (or make any statement) which will imperil his unit or its cause".^{[5][verification needed]}

This justification offered new precedent to the military expression limitations and differs from those stated in the Articles of War in 1775 where Congress feared a military coup^[5] In fact, the Uniformed Code of Military Justice UCMJ specifically includes criminal charges against a service member for various UCMJ offenses that have been levied for verbal and written statements or public displays of political speech.^{[6][clarification needed]}

Vietnam era

During the Vietnam War an Army officer joined a protest and stated "End (President Lyndon) Johnson's fascist aggression in Vietnam."^{[7][Full citation needed]} The officer was convicted for his participation and verbal statement.^[8]

Since September 11, 2001

With the advent of the Iraq War in 2003, the issue of military expression was again thrust into the public eye as a relatively small amount of service members and veterans began demonstrating and speaking out.^[9] One case revolved around a former Marine (still under contract with the IRR) who was photographed by the Washington Post wearing a partial uniform during an anti-war demonstration in Washington, DC.^[10] The individual faced a military tribunal for his participation in this demonstration, as well as for a politically charged email he sent to a Marine officer.^{[11][Full citation needed]} However, in this case, the service member managed to avoid the other than honorable discharge being sought by the military due to the First Amendment arguments posed on his behalf.^[12] That case, which was argued by attorney Mike Lebowitz in representation of anti-war and political activist Adam Kokesh, is regarded as the first military expression case of its kind to result generally favorably for the service member.^{[13][Full citation needed][POV? – Discuss][14]}

Effects of technology

Despite this change in direction in regard to military expression issues, numerous instances of military free speech conflicts continue to be reported.^{[15][citation needed]} Much of this relates to easy access to the Internet, blogs, and digital cameras available for use by service members while deployed to a combat zone.^{[citation needed]} This has prompted the military to takes steps at limiting the use of blogs by requiring the consent of individual commanders.^{[16][Need quotation to verify]} Many soldiers report being confused by military anti-protest rules that "seem haphazard and subjective."^{[17][Need quotation to verify]}

Political speech, to include being active in a political party, also has become an issue as the Internet and email permits easier participation despite rules against such activity.^{[18][citation needed]}

"Military Expression"

While "military free speech" was the term used during the Vietnam era, "military expression" has become a niche area of military law legal field since 2001.^{[19][not in citation given]} Besides numerous media references relating to specific cases, the term was used at military whistleblower committee hearings with members of the United States House of Representatives and Senate on May 14, 2008. Transcripts of the hearings show that attorney Mike Lebowitz was identified as testifying as a legal expert in "military expression."^{[20][Full citation needed]} That hearing also included references by US Rep. Sheila Jackson Lee (D-TX) who also referred to the area of law as "military expression."^{[further explanation needed]}

References

1. ^ Detlev F. Vagts "Free Speech in the Armed Forces" Columbia Law Review 1957
2. ^ also cited in more recent BC law review page 9 http://www.bc.edu/schools/law/lawreviews/bclawreview/meta-elements/pdf/49_4/05_mcfadden_web.pdf^{[dead link]}
3. ^ see also Congressional testimony of May 14, 2008
4. ^ United States v. Voorhees
5. ^ ^{a b} http://www.airpower.maxwell.af.mil/airchronicles/aureview/1980/may-jun/moran.html
6. ^ 10 United States Code, para 801-904 (1970), Articles 88, 89, 91, 92, 117, 133, and 134
7. ^ United States v Howe 17 United States Court of Military Appeals 165, 37 Court-Martial Reports 429 (1967)
8. ^ US v. Howe
9. ^ http://ivaw.org/inthenews^{[dead link]}
10. ^ From Washington Post Washington Post covering legal issue http://www.washingtonpost.com/wp-dyn/content/article/2007/05/30/AR2007053002627_pf.html
11. ^ "Corps accused of 'muzzle' tactics," by Stephen Koff. Cleveland Plain Dealer, May 31, 2007
12. ^ "Antiwar to the Corps: Marine Reservist-Protesters Face Discipline", by David Montgomery. Washington Post May 31, 2007; Page C01
13. ^ Zip it, Soldier! What Happens to Iraq Veterans who Speak out Against the War? By Justine Sharrock in Mother Jones Magazine, Sept. 29, 2008
14. ^ Also see Boston College Law Review article on this case written by McFadden http://www.bc.edu/schools/law/lawreviews/bclawreview/meta-elements/pdf/49_4/05_mcfadden_web.pdf^{[dead link]}
15. ^ See Mother Jones article for numbers.
16. ^ DOD Directive 8570
17. ^ See quote in above NPR story
18. ^ "Modern Whig Party has Appeal to Some Troops," by William H. McMichael for the Military Times on June 23, 2008
19. ^ See Yale University lecture for 2009 titled "Military Expression in the Modern Armed Forces http://www.yaleconservativeparty.com/stm
20. ^ transcripts for May 14, 2008, see also CSPAN coverage of hearings

See also

• First Amendment