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Navigating "Free Speech" for Service Members in the World of Social Media

"9/11 has officially been declared grandparents day by the Whitehouse. Somebody please f**king kill Obama."

As Jeff B. Woodmansee's still-relevant piece from The National Law Journal points out, you do not have to search long on social media to find military service members airing their grievances against President Obama and his administration. In "When Soldiers Go Social on Politics," Woodmansee examines the free speech restrictions placed on members of the military, the prevalence of critical social media posts against President Obama from these service members, and the nuanced dilemma on whether or not they should be punished for this activity.

Free speech does apply to members of the military, but with significant caveats. Service members are held to a higher standard than civilians and there have been court rulings and guidelines that define these standards. The Uniform Code of Military Justice prohibits the use of "contemptuous words" against the president and other high-ranking government officials. As former Chairman of the Joint Chiefs of Staff Admiral Mike Mullen stated in 2009: "The U.S. military must remain apolitical…and be a neutral instrument of the state, no matter which party holds sway."

This concept has had precedent for some time. In the 1974 Supreme Court case Parker v. Levy, a Navy doctor was punished for expressing anti-war sentiments and even encouraging African-American soldiers to resist deployment to Vietnam. In the ruling, the court expressed that limitations on military speech are a "fundamental necessity for obedience, and the consequent necessity for imposition of discipline, [which] may render permissible within the military that which would be constitutionally impermissible outside it." Thus, a clear distinction was made between the protections of the First Amendment and the "different character of the military community and of the military mission." As such, military members are largely restricted from participating in partisan political activities.

Undermining the Chain of Command?

In 2012, Marine Sergeant Gary Stein was issued an other-than-honorable discharge when it was found that he had started an Armed Forces Tea Party Facebook page, where he had posted material like "I say screw Obama, I will not follow all orders from him." While Stein and his case became a rallying cause for some Conservative pundits, others felt that Stein's actions were legitimately damaging to military morale and integrity. "The Marine Corps cannot tolerate a noncommissioned officer undermining the chain of command," said former Army colonel and military prosecutor Tom Umberg of Stein's case.

Stein v. Dowling, however, embodies what many see as a dilemma on this issue—especially in the time of such prevalent social media use. First of all, should a distinction be made between valid, thoughtful criticisms of political matters and other, less than constructive comments or the sharing of decisive or inflammatory material? And if so, should military members be punished at all for social media activity? As Woodmansee and many others have pointed out, the military doesn't serve any one political party or administration—they serve the Constitution. Military members remaining publicly apolitical doesn’t only foster a consistent standard of dedication and service no matter who’s in the White House, but also serves an important role in preserving the free speech rights of the citizenry in which they are tasked with defending.

Are you a military service member who is facing administrative or criminal penalties due to your social media activity? If so, then we invite you to contact Joseph L. Jordan, Attorney at Law. Attorney Jordan has more than a decade of experience in the Army and has traveled the globe to defend the rights of U.S. service members. He has the knowledge, resources, and insight to ensure your rights and reputation are fiercely spoken for.

Discover the difference a dedicated military law attorney can make. Contact our firm today.

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