When soldiers speak out: a survey of provisions limiting freedom of speech in the military

Parameters, Autumn, 2007 by John Loran Kiel, Jr.

"The war in Iraq violates our democratic system of checks and balances. It usurps international treaties and conventions that by virtue of the Constitution become American law. The wholesale slaughter and mistreatment of the Iraqi people with only limited accountability is not only a terrible moral injustice, but a contradiction to the Army's own Law of Land Warfare. My participation would make me a party to war crimes."

--Lieutenant Ehren Watada (1)

"When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."

--Justice Oliver Wendell Holmes, Jr. (2)

As America continues surging troops into Baghdad, a number of active-surging duty service members have publicly condemned President George W. Bush and criticized his handling of the war in Iraq. Remarks against the President have become more prevalent among service members because they communicate through a host of mediums unfathomable to yesterday's generation of fighting men and women. Soldiers frequently post digital journals, cell phone photos, and music videos on popular Internet sites such as YouTube and MySpace. A few techno-savvy troops even manage their own milblogs, or online personal diaries where they can communicate in cyberspace about virtually anything to virtually anyone. In fact, some military blogs and videos have become so popular that they garner tens of thousands of visits each day.

One byproduct of Internet-related technology is the growing number of soldiers, sailors, airmen, and Marines who use these tools as a means to publicly express their disapproval of the President and his foreign policy agenda. For instance, one particularly astute group of active-duty war protesters came to Capitol Hill to formally present a petition titled "Appeal for Redress" to Representatives Dennis Kucinich (D-Ohio) and Jim McGovern (D-Mass.). The group created their own Web site where they explained their purpose and posted a short petition calling for the immediate withdrawal of American military forces from Iraq. Over the course of three months, approximately 1,000 active-duty personnel, reservists, and National Guardsmen signed the online petition. (3)

In addition to Web-based technology, service members continue to rely on traditional methods of communication to vent frustrations. For example, members of the group Appeal for Redress appeared on the CB S program 60 Minutes to discuss why they oppose the war and support a timeline for redeploying all US forces from Iraq. Army Lieutenant Ehren Watada is scheduled to be courts-martialed later this year for a series of damning statements he made about President Bush at an antiwar convention in Seattle, Washington, last year. Watada also published a series of contemptuous remarks about the President in a number of local newspapers following his refusal to deploy to Iraq.

As service members become more vocal about the war, commanders need to become more familiar with how freedom of speech is applied in a military context. For instance, when a company commander openly questions the futility of serving another tour in Iraq is his conduct heroic or is it conduct unbecoming an officer? When Corporal Smith posts a blog alleging that the war is the result of corporate greed and that none of the troops support it is he simply expressing a personal opinion or does his speech present a threat to the morale and discipline of his unit? Soldiers are citizens in uniform, after all, and the Constitution they swear to defend bestows upon each of them the freedom of speech. But what happens when that speech has a detrimental impact on the good order, discipline, and morale of a particular unit or individual within the unit?

This article will examine the dilemma of dissension in the ranks--a dilemma that has largely remained dormant for more than 40 years. The last time soldiers lashed out against the President in any noticeable degree was during the Vietnam War. More recently, a number of commissioned officers publicly ridiculed President William J. Clinton after his affair with Monica Lewinsky came to light. The article will discuss these examples and a handful of seminal cases that comprise the body of law governing free speech in the military. What the cases and statutes indicate is that the content of the message itself and the nature in which it was delivered will ultimately determine its lawfulness. The more contemptuous and public the remark, the more likely punishment will be prescribed for the messenger.

DOD Directives

There are two pertinent Department of Defense directives (DODD) that govern political speech in the military. Directive 1325.6 establishes guidelines for dealing with protest and dissident activities, and Directive 1344.10 specifies the types of political activities that may be appropriate for active-duty service members to engage in. The directives establish principles that are intended to help commanders balance the free speech rights of their troops with their own command obligations. For instance, DODD 1325.6 counsels commanders to preserve the service member's right of expression to the utmost extent on the one-hand while on the other they are cautioned not to ignore conduct that could destroy the effectiveness of their units. (4) The directives also presuppose that commanders will exercise calm and prudent judgment when trying to properly reconcile these two interests when they clash.