by James M. Branum
See update.
In the messaging put out by US military recruiters, one common theme is that the military “protects freedom,”[1] but unfortunately the military itself does a poor job of protecting the rights of its members to engage in their own free speech, particularly in the context of protest.
Admittedly, free speech in the context of the military has always been controversial. The brass, of course, is concerned about the possibility of dissent within the enlisted ranks,[2] while others are rightly concerned about the possibility that generals and admirals could speak from their positions in ways that blur the constitutional separation of our nation’s military and its political decision-making process. And finally, there is the First Amendment itself, which provides for the protection of free speech, but the courts are left to sort out what the limits of lawful free speech would be.
These tensions have been reflected in both caselaw and in military regulations, most notably in Department of Defense Instruction 1325.06, enclosure 3, paragraph 6,[3] which sets the following general parameters on times and circumstances when military servicemembers may participate in off-post[4] protests:
- Only when off-duty,
- Only when out of uniform,
- Only when located in the United States,[5]
- Not in “breach of law and order”
- Not in circumstances where “violence is likely to result”
These criteria are not ideal, at least from the perspective of free speech advocates, because they restrict a significant amount of free speech (such as for the thousands of troops who are stationed overseas). However, four of these five criteria do manage to satisfy one concern: clarity.
Clarity is important because if a law is not clear, it could be found to be void for vagueness, as articulated by Justice Sutherland in the case of Connally v. General Construction Co., 269 US 385, 391 (1926):
[T]he terms of a penal statute […] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
To restate this principle in the context of the US military, a military law or regulation[6] must be understandable and clear to a servicemember of “common intelligence,” so that said servicemember would be able to know what conduct is required and/or prohibited.
Going back to DODI 1325.06, the provision that prohibits protest where “violence is likely to result” is arguably vague, as exemplified by the pending case of Captain Alan Kennedy of the Colorado Army National Guard. He has thankfully agreed to share part of his story here.[7]
There are a few things you need to know about CPT Kennedy: (1) he is a JAG attorney when on duty with the National Guard, and (2) he is also an activist for progressive causes he believes in. Most of the time, CPT Kennedy does his activism through the power of written words (including op-eds published in local and national publications) but he does it carefully, mindful of the boundaries set by the Department of Defense, including the requirement that he always explain to the press that he is writing in his personal capacity.
CPT Kennedy takes this same cautious approach to participating in demonstrations, as he did when he joined the many people from all walks of life who protested the racist murder of George Floyd by police. CPT Kennedy joined a group of peaceful protestors in downtown Denver, while carrying a small sign that invoked the name of “George Floyd.” Unfortunately, that day’s action did not end peacefully, because the Denver police instigated violence against the protesters by firing tear gas.
When this happened, CPT Kennedy left the scene, because . . . there was tear gas being deployed! He then went home and wrote about his experiences to the Denver Post and Colorado Newline.[8]
The command of CPT Kennedy had previously expressed its displeasure with his writing op-eds,[9] but now the stakes were higher as he was told that he could not legally participate in Black Lives Matter protests because “Black Lives Matter protests are inherently violent,” and hence prohibited under DODI 1325.06.[10]
Of course, this is not true. Many Black Lives Matter protests have taken place across the country and the majority have been peaceful. This protest was also peaceful, until police fired tear gas. Unfortunately, the logic used by CPT Kennedy’s commanders was that any situation where violence might occur, even if that violence was done illegally by those opposed to the protest, would disqualify a servicemember from being able to exercise their constitutional rights. In fact, this same logic would have also barred the participation of servicemembers in protests against racial segregation, since police-initiated violence was expected by the marchers in the Civil Rights era.
And yet, a mere “plain reading” of DODI 1325.06 would seem to support this faulty logic.
The reality is that it is impossible for CPT Kennedy, or any other servicemember for that matter, to know if a planned protest is one where “violence is likely to result,” because it is impossible to see into the future. And so, most servicemembers facing this ambiguity (and command pressure) will concede the point. They end up not going to the next protest. They keep their mouths shut and their rights are denied.[11]
CPT Kennedy’s commanders decided to put pressure on him to stay quiet too, eventually even giving him a General Officer Memorandum of Reprimand (GOMOR), which will lead to him being denied promotion, which is the first step toward CPT Kennedy being involuntarily discharged from the military.
CPT Kennedy decided to stand up for his rights by bringing a civil suit in federal court against the Colorado Army National Guard commanding general, chief of staff, staff judge advocate, and immediate commander, National Guard Bureau chief, Secretary of the Army, and the Secretary of Defense, in their official capacities. In part, he argues that the ambiguity of DODI 1325.06 has denied him his right to speak out on the most important issues of our day and that this is an ongoing harm that must be addressed, not only for him but for all servicemembers.[12]
The MLTF has decided to support CPT Kennedy in his suit because we have historically prioritized the protection of free speech in the military, both for the sake of the servicemembers who want to speak and also for our society as a whole, which is made poorer by not hearing the voices of the rank and file.
We support this litigation because we believe it is time to change DODI 1325.06 through either court action or though the executive branch. It should be clarified once and for all that military servicemembers can participate in peaceful protests.
We urge our readers to consider taking the following actions:
- Join our amicus committee: The MLTF is in the process of convening an amicus committee, both to draft our planned amicus filing in CPT Kennedy’s case, and also to draft amicus filings in other worthy cases. If you are a lawyer, law student or legal worker with interest in being considered for this committee, please fill out the form on this page.
- Look for other cases of military persecution of anti-racist protesting: There have likely been many commanders who have sought to use misuse DODI 1325.06 to stop servicemembers from participating in Black Lives Matter protests, but unfortunately these commands will likely get away with it. If you have clients who have experienced this (and are willing to speak out), please contact the author[13] as we hope to gather statements from servicemembers that might potentially be used in a litigation context, but also for action #3 below.
- Work to change the vague provision of DODI 1325.06: The US military does not have to wait to be forced to change DODI 1325.06 but instead could take action now to revise DODI 1325.06 to remove the words “Violence is likely to result.”[14] In the coming weeks, we will be exploring ways to engage the branch secretaries, the Secretary of Defense and President Biden, urging them to take actions to ensure that the right of peaceful protest is preserved.
The struggle to protect the rights of servicemembers to peacefully protest will not be an easy one, in part due to the judiciary’s “longstanding deference to Congress on matters of national defense and military affairs,”[15] but this struggle is worth fighting. Military servicemembers who enlist in good faith should not be denied their basic civil rights, and our nation loses when it is deprived of the experiences and perspective of servicemembers.
James M. Branum is a solo attorney who practices military defense law in Oklahoma City. He is also a MLTF steering committee member and is an interfaith minister with the Objector Church, a religious humanist community.
[1] For example, a recent US Navy recruiting slogan is “Life, liberty, and the pursuit of all who threaten it.” See Tony Pollreisz, “U.S. Navy propaganda,” online at: https://people.southwestern.edu/~bednarb/su_netWorks/projects/pollreisz/navy.html#:~:text=Liberty…%20and%20the%20Pursuit,threaten%20our%20life%20or%20liberty.
[2] Not an unreasonable fear given the history of the Vietnam War era. For more information on the history of this era, please visit: https://www.displacedfilms.com/films/sir-no-sir/.
[3] Department of Defense Instruction (DODI) 1325.06, “Handling Dissident and Protest Activities Among Members of the Armed Forces,” online at: https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/DODI/132506p.pdf.
[4] The distinction between on-post and off-post protests is important, especially for servicemembers who work and live at isolated military installations. DODI 1325.06, enclosure 3, paragraph 5, further restricts on-post protests.
[5] The military justifies this restriction based on their concern for avoiding international incidents. Given the historic opposition of the MLTF to the United States operating overseas military installations, we believe an easier solution is to not station troops overseas. Still the present rule at least provides predictability and clarity.
[6] It is important to note that many provisions of military law are found in regulations, not statutes. One example are the potential penalties for violations of the UCMJ. The UCMJ itself is a federal statute enacted by Congress, but the penalties are found in the MCM (Manual for Courts-Martial) which is a federal regulation, not a statute. This unfortunately undermines the constitutional principle of separation of powers, centralizing power in the Executive branch in a way that would be unacceptable in a civilian context.
[7] The author is one of the attorneys representing CPT Kennedy in his civil lawsuit. The facts discussed in this article have either been included in public filings in the federal civil suit or have been authorized for release by CPT Kennedy. This article does not reflect the views of the Colorado Army National Guard or the Department of Defense.
[8] Alan Kennedy, “Getting tear-gassed while protesting gave me hope,” Denver Post, June 4, 2020, https://www.denverpost.com/2020/06/04/tear-gas-george-floyd-protest-guest-columnist/; Alan Kennedy, “Why is the National Guard investigating peaceful protests?,” Colorado Newsline, July 9, 2020, https://coloradonewsline.com/2020/07/09/why-is-the-national-guard-investigating-peaceful-protests/.
[9] Alan Kennedy, “I Did Not Join the Army to Abandon Our Allies,” New York Times, October 18, 2019, https://www.nytimes.com/2019/10/18/opinion/trump-turkey-kurds-syria.html.
[10] Kennedy v. Paul, et al., No. 1:21-cv-00772, filed March 16, 2021 (D. Colo.), online at: https://coloradonewsline.com/wp-content/uploads/2021/03/Kennedy-Complaint-031621.pdf.
[11] An example of this ambiguity can be found in “Guidance details dos and don’ts for participation in political demonstrations” published by the 72nd Air Base Wing Judge Advocate (Jan. 25, 2021) online at: https://www.jbsa.mil/News/News/Article/2473420/guidance-details-dos-and-donts-for-participation-in-political-demonstrations/ Note that despite the guide’s claim that it provides instructions on political demonstrations, it does not provide any actual guidance about the meaning of the phrase “where violence is likely to occur.” It should not be a surprise that many servicemembers may decide that it is not safe to protest while in the military.
[12] John Herrick, “Captain sues Colorado National Guard’s top brass over First Amendment right to protest,” Colorado Newsline, March 17, 2021, https://coloradonewsline.com/2021/03/17/captain-sues-colorado-national-guards-top-brass-over-first-amendment-right-to-protest/; Marshall Zelinger, “Guardsman suing Colorado National Guard over right to protest,” KUSA, April 1, 2021, https://www.9news.com/article/news/local/next/guardsman-sue-colorado-national-guard-right-to-protest/73-2bbcb23e-991d-4a4b-a0e8-5dc0ecab2851; Michael de Yoanna, “How A Colorado National Guard Officer Got Reprimanded After Joining Black Lives Matter Protests,” KUNC, April 7, 2021, https://www.kunc.org/news/2021-04-07/how-a-colorado-national-guard-officer-got-reprimanded-after-joining-black-lives-matter-protests; Davis Winkie, “Colorado Guard JAG officer suing superiors over his participation in BLM protests,” Army Times, April 22, 2021, https://www.armytimes.com/news/your-army/2021/04/22/colorado-guard-jag-officer-suing-superiors-over-his-participation-in-blm-protests/; Denver Post Editorial Board, “Editorial: Colorado National Guard wrong to punish JAG for attending a Black Lives Matter rally,” Denver Post, April 28, 2021, https://www.denverpost.com/2021/04/28/colorado-national-guard-black-lives-matter-protest-alan-kennedy/.
[13] James M. Branum can be reached via email at girightslawyer@gmail.com.
[14] It is important to note that removing this provision would leave in place the restriction on “activities [that] constitute a breach of law and order,” which more narrowly restricts protests in which the servicemember actually engages in violence.
[15] “Statement of Sotomayor, J.” in NATIONAL COALITION FOR MEN, ET AL. v. SELECTIVE SERVICE SYSTEM, ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, 593 U. S. ____ (2021), online at: https://www.supremecourt.gov/orders/courtorders/060721zor_6537.pdf
