By David Gespass

During the Vietnam War, opposition to it was rife within military ranks. Protesters against the war were labeled as Communists or fellow travelers. Times have changed and now the targets of DoD limitations on protesters and dissenters who go too far, or may go too far, are “terrorists, extremists and criminal gangs.” But the change in, let’s call them enemy antagonists, has not resulted in much change in policy. Of course, DoD has had to adapt to new technology and now has policies about social media, along with the old ones about participating in demonstrations or distributing literature. But the emphasis remains the same – DoD does not want anything to interfere with “good order and discipline” or limit the ability of the United States armed forces to assert itself anywhere, any time. So, what can you do and what can’t you do?

DoD Instruction 1325.06, issued in 2009, and most recently updated in 2021, remains the cornerstone of the policy. It insures that just because you are in the military, your constitutional right to free expression (which is one of the things you are supposed to be defending) remains secure and inviolate “to the maximum extent possible,” limited only by not tolerating conduct that would “destroy or diminish the effectiveness of (one’s) unit.” How to balance these two competing needs is left to the “calm and prudent judgment of the responsible commander.” In short, what is or is not prohibited is mostly the luck of the draw.

But there are some things that you should know that provide guidelines. Be aware, for instance, that the UCMJ makes these things criminal for members of the service:  Solicitation (Article 82); Contempt toward officials (Article 88); Disrespect toward superior commissioned officer (Article 89); Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer (Article 91); Failure to obey order or regulation (Article 92); Improper use of countersign (Article 101); Aiding the enemy (Article 103b); Provoking speeches or gestures (Article 117); and, just to be sure, General Article (Article 134), which make anything else that might adversely affect good order and discipline or bring discredit on the armed forces (the latter is evidently something Congress and the President have reserved for themselves) illegal. And, by the way, you have not only the right, but the duty, to disobey illegal orders, though whether or not an order you disobeyed was illegal will likely be decided by your court martial. Happy to clear all that up for you.

Anyway, you are allowed, when off duty, not in uniform and not in a foreign country, to participate in demonstrations and protests unless, of course, “violence is likely to result.” That should be easy to predict, so no worries there. You can even have literature in your possession but a commander can prohibit you from distributing it if they think it would create a clear danger to the loyalty, discipline, or morale of military personnel or materially interfere with the accomplishment of the military mission. Not that you should be overly concerned about it, but Marines in Iwakuni back around 1969 or 1970 got in trouble for distributing copies of the Declaration of Independence on the Fourth of July because, after all, it called for the overthrow of the government.

But take heart. You are free to congregate, meet with others, gather off-post wherever and whenever you like as long as the CO doesn’t decide the activities there are bad for you or the military and makes the place off-limits. At least, you will be free to go there until you are advised otherwise.

And you are free to post things electronically or publish articles, statements and the like on your own time with your own money. The only limitation is if what you publish contains language which is punishable under the Uniform Code of Military Justice or other Federal law or otherwise violates any DoD issuances, in which case you “may face appropriate disciplinary or administrative action.” Anyway, that shouldn’t be a problem if you are a lawyer well versed in military and federal criminal law.

Bear in mind that you cannot engage in extremist activities, even if they would otherwise be constitutionally protected. But never fear, the term is clearly defined in the instruction. It means advocating or engaging in: (a) unlawful force, violence, or other illegal means to deprive individuals of their rights; (b) unlawful force or violence to achieve goals that are political, religious, discriminatory, or ideological in nature; (c) or supporting terrorism; (d) or supporting the overthrow of the government of the United States, or any of its political subdivisions by force or violence or seeking to alter their form by unconstitutional or other unlawful means; (e) encouraging military, civilian, or contractor personnel within the DoD or United States Coast Guard to violate the laws of the United States or any state or local government or to disobey lawful orders or regulations, for the purpose of disrupting military activities or doing so yourself; widespread unlawful discrimination based on race, color, national origin, religion, sex (including pregnancy), gender identity, or sexual orientation.

To be sure, this permits a wide range of activity. It can even include talking about or discussing theories that advocate violent revolution so long as it doesn’t cross the line to advocating for such. As long as you only talk about such things in the abstract, you are (presumably) protected, though one cannot be sure how any particular commander will decide when the line is crossed.

The instruction lists all sorts of ways one can actively participate in extremist activities. Most, like fundraising, recruiting, rallying, creating or leading an extremist group, are relatively clear, but you can go to meetings, even knowing they are for extremist groups, as long as they are not in violation of the law or likely to result in violence. Also, be aware that you cannot post, like, share, etc. anything on electronic media if you do so intending to promote or endorse extremist actions.

Nor can you actively participate in criminal gangs even by wearing gang colors or clothing or having tattoos or body markings associated with criminal gangs. This may appear relatively straightforward but supposed police “experts” in gang activity have been known to misconstrue signs or markings as being related to gangs when they were not. Nor does the instruction define criminal gangs. One supposes that, like pornography, you just should know it when you see it.

Finally, let’s turn to a more recent DoD Instruction, 5400.17, relating to social media. This became an issue with the arrest of Jack Texeira, a Massachusetts Air National Guard member who allegedly posted classified information on his social media platforms, evidently thinking that only his closest friends would see it and it couldn’t possibly get out broadly on the internet. Most of this is pretty obvious. You cannot use government sites for anything but official business. You cannot imply on your personal site that you are speaking officially for the US government or your branch of service, which is most often a concern for senior government officials. You cannot use your membership in the military for personal profit. It is okay to post pictures of yourself in uniform so long as it is clear that you are not speaking for your unit or branch of service or whatever. If there is any question, you should simply post a disclaimer that you are expressing your personal views and they are not necessarily those of the United States or whatever. Of course, you can only post to social media on your own time and from your own computer. And bear in mind, it is definitely prohibited for you to post, or even email, any classified information, which is not something anyone would have thought it necessary to say.

In sum, these are guidelines, the application of which can vary from one command to another. CO’s are told that they should watch for problems and resort to counseling first before taking any punitive action. The idea is to keep problems from developing rather than taking punitive action after they have snowballed. How that plays out in practice is dependent on a lot of factors, but the most important among them is whatever the commanding officer thinks.

Confused? Who wouldn’t be? If you’re planning to be involved in political activity, it helps to take a look at the DoD Instructions. That ought to give you an idea of what’s legal and what isn’t, though not a very clear one. It is always a good idea to talk with a civilian attorney experienced in military law before taking action, particularly if that action (like talking to a reporter about problems at the command or why we’re invading Country X, Y, and Z) might come to your command’s attention. The Military Law Task Force can put you in touch with attorneys familiar with these policies.

David Gespass is a past president of the NLG and a founding member of the Military Law Task Force. He spent a year in Japan with the Guild’s Military Law Office.

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