Military expression is an area of
military lawMilitary justice is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use...
pertaining to the United States military that relates to the free speech rights of its service members.
While the civilian population of the United States is afforded the right to free expression under the
First AmendmentThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the Congress from making laws "respecting an establishment of religion", prohibiting the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the...
, the U.S. Supreme Court has affirmed the notion that service members have a reduced level of free speech. 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.
Military expression is an area of
military lawMilitary justice is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use...
pertaining to the United States military that relates to the free speech rights of its service members.
Limitations on Military Expression
While the civilian population of the United States is afforded the right to free expression under the
First AmendmentThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the Congress from making laws "respecting an establishment of religion", prohibiting the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the...
, the U.S. Supreme Court has affirmed the notion that service members have a reduced level of free speech. 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".
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 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
Vietnam Era
The seminal case of military expression during the Vietnam War related to an Army officer who joined a protest and stated "End (President Lyndon) Johnson's fascist aggression in Vietnam." The officer was convicted for his participation and verbal statement.
Since September 11, 2001
With the advent of the the controversial 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. One of the most prominent cases revolved around a former Marine (still under contract with the
IRRIRR is a three-letter acronym that may refer to:* In finance, the internal rate of return* In computer science, Interrupt Request Register, used to indicate interrupts awaiting service* In electrical engineering, the image rejection ratio...
) who was photographed by the Washington Post wearing a partial uniform during an anti-war demonstration in Washington, DC. 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. 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. That case, which was argued by noted military expression attorney
Mike LebowitzMichael J. Lebowitz is an international journalist, as well as a Washington, D.C., attorney and expert in the field of military law and Military Expression...
in representation of prominent anti-war and political activist
Adam KokeshAdam Charles Kokesh was a Corporal in the United States Marine Corps Reserve and is a veteran of the Iraq War. He is opposed to the US-led occupation of Iraq and is notable for wearing portions of his military uniform to anti-war protests and the attempts of the Marine Corps to effectively...
, is regarded as the first military expression case of its kind to result generally favorably for the service member.
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. It is important to note that many of these issues have little or nothing to do with anti-war or political behavior as scholars and attorneys involved in military expression report that technology has changed the game for all service members. 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. This has prompted the military to takes steps at limiting the use of blogs by requiring the consent of individual commanders. However, many soldiers have reported being confused by military anti-protest rules that "seem haphazard and subjective" while the military is "scrambling to adjust its policies to fit a world changed by YouTube, blogs and digital photos."
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.
"Military Expression"
While "military free speech" was the term used during the Vietnam era, "military expression" has become a niche area of
military lawMilitary justice is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use...
legal field since 2001. 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 LebowitzMichael J. Lebowitz is an international journalist, as well as a Washington, D.C., attorney and expert in the field of military law and Military Expression...
was identified as testifying as a legal expert in "military expression." That hearing also included references by US Rep.
Sheila Jackson LeeSheila Jackson-Lee is an American politician. She has been a Democratic member of the United States House of Representatives since 1995. She represents Texas's 18th congressional district.-Early life:...
(D-TX) who also referred to the area of law as "military expression."
See also
- Military Law
Military justice is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use...
- First Amendment
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the Congress from making laws "respecting an establishment of religion", prohibiting the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the...
- UCMJ