Air University Review, May-June 1980
Major Felix F. Moran
THE first amendment to the Constitution of the United States provides, in part, that "Congress shall make no law. . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble. . . ." Despite the almost unquestioned acceptance of this principle within American society, there remains a great deal of misunderstanding as to its application to members of the military forces.
Much of this misunderstanding is voiced in highly publicized comments of senior military officials and prominent legal commentators. The recent experiences of Major General John K. Singlaub, USA (Ret), are a case in point. Recalled from his post in Korea after making critical comments concerning President Carter's decision to withdraw United States ground forces from that country, General Singlaub has, with much fanfare and a great deal of publicity, made many references to the suppression of senior military officers' tactical, strategic, and political opinions. From his perspective, free speech does not exist in the military.
Likewise, freedom of expression by lower-ranking personnel is thought not to exist. Melvin Wulf of the American Civil Liberties Union has commented that free speech in the military is opposed by "those who enjoy the picturesque spit and polish of traditional military life, as well as its predictability, security and class structure. They recognize that those features of their life are threatened by unfamiliar political ideologies and cultural habits."1
The truth, of course, lies somewhere along the spectrum represented by this attitude of misunderstanding on one end and absolute free speech on the other. The purpose of this article is to explore that truth, to examine the first amendment as it applies to members of the armed forces.
the first amendment versus
the national interest
Free speech, as guaranteed by the first amendment, does exist in the military. There are curbs placed on free expression, but they are not as restrictive as they appear on the surface, and they are not without counterparts in civilian life. There are, after all, few wholly free agents in our society. For example, a judge is not free to practice civil disobedience from the bench but must conform to the rulings of the Supreme Court; nor is an employee of a private company protected by law from dismissal for expressing opinions distasteful to management. The situation is much the same in the armed forces.
Freedom of speech, press, and assembly as secured by the Constitution does not mean that the right to speak or publish one's convictions may be practiced without responsibility or without consideration for other factors. Justice Oliver Wendell Holmes stated in Schenck v. United States: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic."2 As concluded in the Schenck opinion, the right to free speech is dependent on the circumstances surrounding its exercise. In considering these circumstances, the question becomes one of outcome. Again, Justice Holmes provided a guideline in the Schenck opinion: "the question in every case is whether the word are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. "3
By 1950, the clear and present danger test was well established. In that year, however, a new requirement was forecast by the dissenting opinion of Justice William O. Douglas in Dennis v. United States.4 He argued that for speech to be punishable some immediate injury to society must be likely. This requirement was adopted outright nineteen years later in Brandenburg v. Ohio. The Supreme Court observed that statements must go beyond mere advocacy and be directed toward "inciting or producing imminent lawless action."5
In a military context, that standard forces us to ask whether or not free expression represents an imminent threat to the national interest. The national interest can take many forms, but for our purposes here it is generally synonymous with the ability of the armed forces to perform their wartime military mission. Senior officials, both military and civilian, agree that unlimited free speech is inconsistent with command, control, and military authority on which the armed forces are based and, therefore, must be restricted in some degree if the military is to maintain its capability for immediate and unified action.6 An army or navy whose members are allowed to spread internal dissension and disorder constitutes a hazard with perhaps as great a potential for danger to the country as a hostile foreign power.7 Thus, as an early legal commentator on military free speech states, "The national defense brooks no opposition and overrides many freedoms. . . even in peace time the military must act as if war were imminent, for new habits cannot be established on the day the balloon goes up. ..."8 It is a true paradox that the soldier, under certain circumstances, must sacrifice some of the liberties that he is called on to protect.
of the first amendment
This suggested relationship is a balancing between the free speech rights of the individual military man on one side and the national interest on the other. As suggested by Justice Holmes, the balance is never even, nor is it always tipped in favor of one side only. The circumstances of the particular situation provide additional weight to one side, and the balance shifts in favor of the individual or the national interest.
Judge George W. Latimer, in a separate opinion in United States v. Voorhees observed: "Undoubtedly, we should not deny to servicemen any right that can be given reasonably. But, in measuring reasonableness, we should bear in mind that military units have one purpose justifying their existence: to prepare themselves for war and to wage it successfully. That purpose must never be overlooked. ..."9
The unrestricted application of first amendment rights by servicemen could seriously jeopardize this single purpose by undermining discipline and morale. Judge Latimer succinctly noted in his Voorhee opinion, "A war cannot be won in the halls of debate, and conditions do not permit meeting lies with truth. . . . In times of peace, those who voluntarily or involuntarily work to protect our nation should not be required to toil in contention and strife engendered from within."10
It has been clearly established, beginning with the Schenck decision, that restraints which reasonably protect the national interest do not violate the constitutional rights guaranteed in the first amendment. Within the armed forces, the restraints take the form of regulations that require review and clearance for release of information by military members and prior approval for the distribution or posting of written material on a military installation. They also prohibit personnel stationed overseas from participating in demonstrations.11
Enforcement of these regulations, policy restraints, and traditional restrictions affecting discipline is accomplished through seven articles of the Uniform Code of Military Justice (UCMJ).12 Specific articles prohibit:
1. Commissioned officers from using contemptuous words against the President and other senior civilian government officials.
2. Any person from behaving with disrespect toward a superior commissioned officer.
3. Insubordinate conduct (speech) toward a warrant officer, noncommissioned officer or petty officer.
4. Willful disobedience of an order or regulation.
5. Persons from making provoking or reproachful speeches or gestures towards other persons subject to the UCMJ.
6. Conduct unbecoming an officer.
7. Conduct prejudicial to the good order and discipline of the armed forces, or that will bring discredit upon the service.
Within the framework of regulations and the UCMJ, the basic elements of the limitations imposed depend on the time, place, and circumstances associated with the particular expression made by the military member.13 The final authority in determining whether the application of these limitations denies the serviceman his basic constitutional rights rests with the United States Court of Military.
freedom of speech
A significant and much publicized military first amendment case of recent times was United States v. Howe.14 Howe, a second lieutenant stationed at Fort Bliss, Texas, was convicted of using contemptuous words against the President and conduct unbecoming an officer and gentleman, in violation of articles 88 and 133, Uniform Code of Military Justice. Specifically, he had participated in a demonstration in downtown El Paso and was observed by military police while carrying a sign reading: "Let's have more than a choice between petty ignorant fascists in 1968," and, on the reverse side, "End Johnson's fascist aggression in Vietnam." Lieutenant Howe appealed his conviction to the Court of Military Appeals, arguing, in part, that the charges against him violated his first amendment rights.
In affirming the conviction, the military high court answered the first amendment question by relying on the principle of civilian control over the military. Traditionally, members of the armed forces, particularly officers, have been restricted from using contemptuous words against or otherwise maligning the policies of the civilian leadership. Beginning with the adoption of the first Articles of War in 1775, Congress and other civilian leaders have sanctioned this restriction in order to prevent the possibility of a military coup. In applying this principle to the Howe case, the court stated:
True, petitioner is a reserve officer, rather than a professional officer, but during the time he serves on active duty, he is, and must be, controlled by the provisions of military law. In this instance, military restrictions fall upon a reluctant "summer soldier"; but in another time, and differing circumstances, the ancient and wise provisions insuring civilian control of the military will restrict the "man on the white horse "15
The rationale offered by the USCMA in its Howe decision traces the necessity of civilian supremacy over the military and the intent, from our earliest history, to use article 88 and its precursors to ensure that supremacy. Actual practice has not followed that intent, however. Past applications of article 88 have usually been confined to political activists, enemy sympathizers, and various types of malcontents. When civilian supremacy has actually been at stake, administrative actions, such as removal, reassignment, and forced retirement have been taken against the errant officer.16
A more recent military case that reached the Supreme Court, Parker v. Levy,17 has further defined the limits of military free speech. Dr. Levy was convicted for making disloyal and disrespectful comments to enlisted personnel intended to promote disaffection among the troops, in violation of articles 133 and 134, and for failure to obey a lawful order, in violation of article 92.
Although the issue on appeal was the vagueness and overbreadth of articles 133 and 134, the Supreme Court's decision has considerable application to the issue of military free speech rights. The Court said that while members of the armed forces were not excluded from the protection of the first amendment, a different application was required because of the fundamental need for obedience and discipline. Stressing this uniqueness, the Court stated that civilian first amendment standards do not automatically apply to the military.18
In reaching its decision, the Court relied on the Court of Military Appeals to explain the unique need of the military. The latter court stated in United States v. Priest:
In the armed forces some restrictions exist for reasons that have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.19
This endorsement of the Priest decision clearly demonstrates the Supreme Court's application of the balancing test, weighing the peculiar needs of the armed forces as but one factor to determine the extent of military free speech rights.
freedom of the press
One of the earliest first amendment cases decided by the USCMA, United States v. Voorhees,20 involved a lieutenant colonel who wrote an account of his war service in Korea. He submitted the manuscript for review, as required by military regulation, but refused to delete certain passages as requested by the reviewing authority. Ignoring an order to withdraw the manuscript, Lieutenant Colonel Voorhees went ahead with publication. He was convicted by court-martial of five violations of the UCMJ for publishing his work without proper clearance. A board of review reversed all the findings of guilty except one but upheld the sentence of dismissal and total forfeiture of all pay and allowances.
On appeal, the USCMA concluded that a regulation requiring security review was valid and, therefore, did not violate the military member's first amendment rights, noting that the right to free speech is not an indiscriminate right and is qualified by the requirements of reasonableness in relation to time, place, and circumstances. Although the court failed to address the issue of policy review, Judge Latimer, in a separate opinion, concluded that the first amendment does not guarantee any expression that would jeopardize the efforts of the armed forces. He wrote:
A few dissident writers, occupying positions of importance in the military, could undermine the leadership of the armed forces, and if every member of the service was, during a time of conflict, or preparation therefor, permitted to ridicule, divide, deprecate, and destroy the character of those chosen to lead the armed forces, and the cause for which this country was fighting, then the war effort would most assuredly fail.21
Thus, the Voorhees decision clearly supports the military's authority to limit free speech with respect to both the security and policy interests of the armed forces.
The case, United States v. Priest,22 resulted from the publishing activities of a navy journalist convicted of two specifications of printing and distributing issues of a publication which contained statements disloyal to the United States, in violation of article 134. The paper encouraged desertion and gave the names of groups in Canada who would aid deserters. It made references to assassinating the President, taking over the government, and bombing the United States.
In affirming the conviction, the USCMA rejected the Brandenburg requirement that there be an incitement to imminent lawless action, holding that the clear and present danger test outlined by Justice Holmes in Schenck was the proper standard for determining the extent of free expression within the military services.23 The court further stated:
The danger resulting from an eroding of military morale and discipline is too great to require that discipline must already have been impaired before prosecution for uttering statements can be sustained As we have said before, the right to free speech in the armed services is not unlimited and must be brought into balance with the paramount consideration of providing an effective fighting force for the defense of our country.24
A final notable publication case is that of the Secretary of the Navy v. Avrech.25 Avrech, a Marine Corps private stationed in Vietnam, was convicted of attempting to publish disloyal statements with the intent to promote disaffection among the troops, in violation of articles 80 and 134. He had not actually published or distributed the material since he was apprehended while carrying the typed stencil.
The case eventually reached the Supreme Court and was decided as a companion case to Parker v. Levy. The value of the Avrech decision is that it indicates that, while in a war zone, the balance is shifted almost exclusively in favor of the need to protect the national interest.
freedom of assembly
There have been two notable cases concerning the serviceman's right to assemble peaceably, as guaranteed by the first amendment. In the first, Dash v. Commanding General,26 the commanding general of Fort Jackson, South Carolina, denied petitioners permission to distribute unofficial material on post and to conduct an open public meeting to discuss the war in Vietnam. The petitioners, twelve enlisted men, sought declaratory relief from the United States District Court in South Carolina, challenging the commander's authority UJ deny them the right to hold on-post meetings. The district court upheld the commander's power to deny such meetings, when it was reasonably determined that their purpose was to produce discontent, disorder, and dissension.
In another case, Culver v. Secretary of the Air Force,27 the federal appeals court upheld the conviction of an Air Force captain for participating in a demonstration in a foreign country, as prohibited by AFR 35-15, in violation of articles 92 and 133. In reaching its decision, the court reasoned that the military must be given wide latitude for the prevention of political activities that might embarrass the host country. From this decision, it is clear that under certain circumstances first amendment guarantees must yield to the interests of the government in maintaining cordial relations with the host country.
unique position of senior officers
The discussion of free speech to this point has centered on the balance between the national interest, as manifested in the morale and discipline of the armed forces, foreign policy and security considerations, and the individual military member's rights. Another frequently used justification for the suppression of first amendment freedoms, however, is the issue of civilian control of the Department of Defense. The ultimate purpose of civilian supremacy is, of course, to prevent the military take-over of the government, a possibility that seems quite remote in our time. A more likely goal for restricting the content of statements by military officials, particularly flag officers, is to prevent excessive influence of the military in the formulation of government policy.
In our democracy, formulation of policy is constitutionally vested in the civilian authorities of government. The professional military man merely executes policy in a nonpartisan manner. Prussian General Karl von Clausewitz explained this situation, stating: "The subordination of the political point of view to the military would be unreasonable, for policy has created war; policy is the intelligent faculty, war only the instrument, and not the reverse. The subordination of the military point of view is, therefore, the only thing which is possible."28
Throughout our history some senior military officers have been unable to accept this concept and have challenged its traditions, but most have recognized the wisdom of civilian supremacy and reconciled any differences they may have had with their government. The Continental Congress insisted in 1774 on civilian control of the military. General Washington made it clear that he would bow to the congressional will, even if he was personally opposed to its policy.29 General U. S. Grant, while commanding federal troops during the Civil War, expressed his feelings on the subject by stating: "So long as I hold my present position, I do not believe I have the right to criticize the policy or orders of those above me, or give utterance to views of my own, except to the authorities in Washington."30 General George C. Marshall, perhaps the greatest soldier-statesman in our history, recalling his differences with President Franklin D. Roosevelt, hastened to add, "But I didn't make any public speeches."31 General Marshall approved of General Douglas MacArthur's removal from command, saying that the situation of a local theater commander publicly voicing his displeasure and disagreement with the foreign policy of the nation was "wholly unprecedented."32
This view is shared equally by the civilian leadership within the government. The Senate Armed Services Committee, in a report released in October 1962, concluded that "once the decision has been made by the properly constituted authorities the military man must support it. . . . If, in good conscience, he cannot live with a decision, he should divest himself of his uniform and carry on his fight in a civilian status."33
Continuing this tradition, current guidelines have been clarified and reinforced by Secretary of the Army Clifford L. Alexander, Jr., in his address at West Point on 8 June 1977. Secretary Alexander outlined three distinct forums for opinion by the military professional:
1. Within the military: Opinions can be voiced freely within the chain of command. Once a final decision has been made, however, the soldier's responsibility is to work in a creative and dedicated manner to execute the decision.
2. Before Congress: A military man can freely express personal opinion when asked. Once policy has been established, it is his duty to cite the policy and his intent to follow it. If asked, he can state an opinion at odds with the policy, so long as the opinion is so identified.
3. Dealing with the media: The officer must be aware that even before policy is established, expressing personal opinion may be contrary to the national interest. On the other hand, in some cases, discussion may be helpful in the formulation of policy. The official must be sure to state that policy has not been established or is subject to final review by military or civilian authority.34
Secretary Alexander further noted that, "in almost no instance will the national interest be served by a military person voicing disagreement with established policy. . . . Attempts to achieve outside the chain of command what one could not achieve inside the chain of command are out of keeping with this tradition [of the President as Commander-in-Chief] and inconsistent with military professionalism."35
It is important to note that the general officer is just as susceptible to prosecution as a result of his expressed thoughts as the enlisted man, even though a general officer has not been prosecuted since the court-martial of Billy Mitchell in 1925. As mentioned earlier, these errant officers are usually dealt with through the use of administrative sanctions such as removal from command, reassignment, or forced retirement. Nevertheless, as one writer comments, "The pyramid that starts with privates, seamen, and airmen bound to respect their noncommissioned officers culminates in generals and admirals bound to respect civilian secretaries and the President: These officials who bear the ultimate responsibility need protection from irresponsible abuse by their subordinates."36 To demand less would destroy the framework of discipline necessary for the accomplishment of the military mission.
SERVICEMEN do, in fact, have the same first amendment rights as their civilian brothers. They are, however, not absolute. But, then, neither are these rights absolute in civilian law. 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. As Judge Latimer wrote almost twenty-five years ago: "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."37
1. Melvin L. Wulf, "Commentary A Soldier's First Amendment Rights: The Act of Formally Granting and Practically Suppressing," Wayne Law Review, March-April 1972, p. 681.
2. 249 U.S. 47, 52 (1919).
4. 341 U.S. 494 (1951).
5. 395 U.S. 444, 447 (1969)
6. Homer E. Moyer, Justice and the Military (Washington, D.C.: Public Law Education Institution, 1972), p. 791.
7. Jerome X. Lewis, "Freedom of Speech—An Examination of the Civilian Test for Constitutionality and Its Applications to the Military," Military Law Review, July 1968, pp. 78-79.
8. Detlev F. Vagts, "Free Speech in the Armed Forces," Columbia Law Review, February 1957, p. 189.
9. 4 United States Court of Military Appeals 509, 16 Court-Martial Reports 83, 105 (1954).
10. Ibid., p. 108.
11. Department of Defense Directives 5230.9, Clearance of Department of Defense Public Information (Washington: Department of Defense, 24 December 1966) and 1325.6, Guidelines for Handling Dissident and Protest Activities among Members of the Armed Forces (Washington: Department of Defense, 12 September 1969).
12. 10 United States Code, para 801-904 (1970), Articles 88, 89, 91, 92, 117, 133, and 134, respectively.
13. United States v. Voorhees, 16 Court-Martial Reports 83, 95 (1954).
14. 17 United States Court of Military Appeals 165, 37 Court-Martial Reports 429 (1967).
15. Ibid., p. 175.
16. Moyer, p. 845, citing Kestor, "Soldiers Who Insult the President: An Uneasy Look at Article 88 of the Uniform Code of Military Justice," Harvard Law Review, vol. 81 (1968), pp. 1736-40.
17. 417 U.S. 733 (1974).
18. Ibid., p. 760.
19. 21 United States Code of Military Appeals 564, 16 Court-Martial Reports 338, 343 (1972).
20. 4 United States Court of Military Appeals 509, 16 Court-Martial Reports 83 (1954).
21. Ibid., p. 107.
22. 21 United States Code of Military Appeals 564, 45 Court-Martial Reports 338 (1972).
23. Ibid., p. 344.
25. 418 U.S. 676 (1974).
26. 307 F. Supp. 849 (D.S.C. 1969).
27. 559 F 2d 622 (D.C. Cir. 1977)
28. John W. Spanier, The Truman-MacArthur Controversy and the Korean War (Cambridge: Belknap Press of Harvard University, 1959), p. 3.
29. Alexander M. Haig, "The National Security Act and the Professional Soldier’s Role in National Security Policy" (unpublished thesis, Georgetown University, Washington, D.C., 1962), p. 8.
30. Trumbull Higgins, Korea and the Fall of MacArthur (New York: Oxford University Press, 1960).
31. Ibid., p. 124.
32. Spanier, p. 10.
33. George W. Brown, Generals and the Public (University of Kansas: Government Research Center, 1964), p. 10.
34. Headquarters Air Force Message 172355Z June 1977, Subject: Statements by Defense Officials.
36. Vagts, p. 188.
37. United States v. Voorhees, 16 Court-Martial Reports, p. 105.
Major Felix F. Moran III (M.A., California State University, Sacramento) is a Senior Controller at 22d Air Force Operations Center, Travis AFB, California. He has been an instructor pilot for C-5s and has served with the security police, but most of his Air Force career has been in flying C-141s. Major Moran is a graduate of Squadron Officer School and Air Command and Staff College. He is a previous contributor to the Review.
The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.
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