WHAT FREE SPEECH RIGHTS DO MEMBERS OF THE MILITARY HAVE?
Members of the military have rights under the U.S. Constitution, laws passed by Congress, and the military’s own regulations. If you are in the military, you probably know by now that the military doesn’t tell you much about your rights. This leaflet provides basic information about your right to attend demonstrations, as well as to protest and say what’s on your mind. You can get more information by reading the military’s regulations yourself. It is also a good idea to talk to a civilian lawyer or counselor experienced in military law. Military regulations give you important ways to protest what’s going on in Iraq, Afghanistan , the Philippines and elsewhere. They also impose important limitations you need to know about. People in the military don’t have the same constitutional right to express themselves as civilians do. Courts have upheld some of these limitations, reasoning that the right to free speech must give way if the military says that is necessary for it to accomplish its mission. Other limitations haven’t been tested in court yet. While many lawyers and even some judges disagree with the way the Supreme Court has decided military First Amendment cases, all courts are required to follow the Constitution as it has been interpreted by the Supreme Court.
THE RIGHT TO READ AND DISTRIBUTE THIS MEMO OR ANTI-WAR MATERIAL.
The military regulation that covers protest and dissent by members of the military is Department of Defense (DoD) Directive 1325.6 — “Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces.” This directive allows members to possess and read anything they want. Limitations apply to distribution. For example, the command may prohibit members from distributing written materials on base, other than through “official outlets,” without prior approval. If the command finds that you have more than one copy of anything, it may claim that you intend to distribute it. If the command thinks that you are going to distribute something without prior approval, the authorities may take it from you. The command may not prevent you from distributing printed material simply because it is critical of government policies or officials. The command may limit distribution of printed material if the command believes the material presents “a clear and present danger to the loyalty, discipline, or morale of military personnel, or if the distribution of the publication would materially interfere with the accomplishment of the military mission.”
Although DoD Directive 1325.6 permits military members to possess and read anything they want, it limits what organizations a member may participate in. Members may not participate in organizations which advocate discrimination based on race, sex, creed, religion, or national origin. They also may not participate in organizations which advocate the use of force or violence (other than the military, of course!). Although having literature from these organization is not itself illegal, it could raise suspicions that you are participating in those organizations.
THE RIGHT TO ATTEND PEACEFUL DEMONSTRATIONS OFF BASE
DoD Directive 1325.6 says it is DoD policy to preserve military members’ “right of expression … to the maximum extent possible, consistent with good order and discipline and the national security.” Then it puts limits on that right. Members of the military may attend demonstrations. But only in the United States. Only off base. Only off duty. And only out of uniform. Free speech may be forbidden if it “constitute[s] a breach of law and order.” It is also forbidden “when violence is likely to result.” Peaceful demonstrations are not a problem. Violent ones are. Members who do not want to risk court-martial, should stay away from demonstrations they think are likely to become violent.
THE RIGHT TO PETITION A MEMBER OF CONGRESS AND THE INSPECTOR GENERAL.
THE RIGHT TO FILE A COMPLAINT UNDER ARTICLE 138 OF THE UCMJ
DoD Directive 1325.6 protects these rights. They are also discussed in DoD Directive 7050.6 (Military Wistleblower Protection). The organizations listed at the end of this leaflet can help you exercise them.
THE RIGHT TO SAY AND WRITE WHAT YOU THINK
Members of the military have the right to say or to write what they think, up to a point. They can’t say things that encourage violence (other than as part of authorized military operations) or urge others to violate military regulations. They can’t communicate with “the enemy,” for example, by writing letters to Iraqi officials or soldiers. Article 88 of the UCMJ (Uniform Code of Military Justice) makes it a crime for a commissioned officer to use “contemptuous words” against the President, Vice-President, Secretary of Defense, and other specified high government officials. Enlisted members can be prosecuted under Article 134 for using similar words. The words have to be “to the prejudice of good order and discipline in the armed forces, or conduct of a nature to bring discredit upon the armed forces.” Military members have gotten into trouble for calling officials “fascists,” “thieves,” murderers” “tyrants” “fools” and “gangsters.” This law is selectively enforced. Some officers didn’t get in trouble for saying bad things about President Clinton, for example. Article 117 of the UCMJ outlaws using “provoking or reproachful words or gestures” towards someone else in the military. The more real danger, however, if from saying things that could make other members desert, disobey lawful orders, or refuse to do their jobs. That kind of speech could violate Article 82 of the UCMJ, which makes it a crime for someone in the military to ask someone else to desert or mutiny (disobey orders as a group).
Members of the military can write letters to newspapers — so long as they are not part of an organized letter campaign for a political candidate, party, or partisan political cause. (This rule, is found in Army Regulation 600-20, Appendix B). It is unclear what the Army means by “partisan political cause,” but it probably means a cause promoted by a political party. Military members can also publish their own newspapers – so long as they do it while they are off duty and don’t use military paper, ink, computers, phones, or other supplies or equipment. Of course, members may not say or give the impression that they are speaking on behalf of the military.
Military members can put bumpers stickers on their cars and signs in their yards — subject to the limitations discussed in this leaflet. Civilians who live with military members are not subject to these limitations, unless they live in on-base housing – then they are subject to local orders having to do with such things.
THE RIGHT TO CONSULT A CIVILIAN ATTORNEY
Military members have the right to consult civilian attorneys. It’s also perfectly legal for them to talk with and get help from civilian “military counselors.” Counselors are not attorneys, but they have information about discharges, administrative complaints, and exercising your rights in the military.
DoD Directive 1325.6 promises that “The Service members’ right of expression should be preserved to the maximum extent possible, consistent with good order and discipline and the national security.” The Directive also asserts that this right must be balanced against how the exercise of free speech affects the “effectiveness of [the] unit.” “Balancing” these two interests is left to “the calm and prudent judgment of the responsible commander.” You don’t have to be in the military long to find out that that “balancing” can lead to retaliation against members who exercise their rights to protest. Sometimes innocent and completely legal actions lead to retaliation in the form of poor performance evaluations, bad recommendations, and bogus disciplinary charges. Sometimes folks are labeled as troublemakers and face informal harassment from co-workers and superiors. Sometimes this kind of retaliation backfires by producing admiration from fellow members.
If the command tried to retaliate against you for exercising your free speech rights, get some legal assistance. Talk with a civilian military counselor and/or a civilian attorney familiar with military law. You may be able to file a complaint under Article 138 of the UCMJ. You may be able to file a complaint under the Military Whistleblower Protection Act. There may be other legal channels. An attorney or counselor can help you file a complaint or communicate with your command about the problem.
Since the war in Iraq started, many soldiers have talked to the media, both in Iraq and in the States. They have said they want to come home and that the war is wrong. Some soldiers have talked with and written to members of Congress to oppose the war. Many have marched in demonstrations. So far, the military hasn’t done much to stop this, perhaps because there is so much dissent, and perhaps because many Americans support soldiers who want to come home now. Some commands have threatened soldiers and sailors, even for actions like these that are completely legal. The best way to protect yourself is to be prepared in advance. Before you exercise your rights, read the regulations. Talk with an attorney or civilian counselor. Try to arrange in advance for legal backup in case your command develops an attitude.
It is also important to think about whether you are vulnerable. Is there anything in your record or any action pending against you that might be a problem if your command wants to cause you trouble? An attorney or civilian counselor can help you to be sure you have as much protection as possible against harassment or retaliation.
If officials ask you questions about subjects that could get you in trouble, even if you believe you were in the right, you have a right under the Fifth Amendment to the Constitution and Article 31 the UCMJ not to answer. You don’t have a right to lie. Lying can get you in trouble. Saying “I don’t know” when you do know is a lie. Saying “I exercise my rights under the Fifth Amendment and Article 31 not to respond to that question” or “I choose not to respond to your questions before consulting with an attorney” should not get you in trouble.
DoD Directive 1325.6. Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces. Also has a provision that tries to prevent racial, gender, religious, or ethnic hatred. The individual branches have their own regulations which implement this Directive. AF Instruction 51-903, AR 600-20 Appendix B (having to do with partisan politics); MCO 5370.4B, and OPNAVINST 1620.1B. These regulations also deal with racial, gender, religious, or ethnic hatred. There are also often local directives.
DoD Dir. 1334.1. Wearing of the Uniform. Prohibits wearing uniform at certain events, including demonstrations.
DoD Directive 1354.1. DoD Policy on Organizations the Seek to Represent or Organize Members of the Armed Forces in Negotiating or Collective Bargaining. Prohibits members of the military from joining a union, attempting to enroll other members in a union, or striking.
DoD Directive 7050.6. Military Wistleblower Protection.
10 U.S.C. § 976. Makes it illegal for members of the military to unionize.
10 U.S.C. § 774. Establishes limited right to wear conservative items of religious apparel while in uniform (For details on implementation, see DoD Directive 1300.l7).
10 U.S.C. § 1034. The Military Wistleblower Act – Protects right to complain to Congress and the Inspector General, and protects members from retaliation for filing complaints. UCMJ Art. 138. Establishes the right to complain to a higher officer when wronged by your commanding officer.
www.dtic.mil/whs/directives/ (official site for DoD Directives)