U.S. military service members have always operated under different rules than civilians. The military’s special system of laws—known as the Uniform Code of Military Justice (UCMJ)—employs its own regulations for prosecuting and punishing violators, which often includes a court-martial.
Many military crimes are not punishable under civilian law, and the rights of military service members often differ from those of ordinary citizens. This may have you wondering—do military members have First Amendment rights?
When cases arise regarding freedom of speech, expression, religion, assembly, and the right to petition, the Supreme Court consistently permits the military to restrict the First Amendment rights of service members in ways it doesn’t permit in civilian contexts. In short, First Amendment protections do not apply in the military—or at least, they do not apply to the same extent. Here’s what you need to know if you have been charged with a crime related to First Amendment rights.
When Can the Military Deny Service Members First Amendment Rights?
Under the doctrine of “military necessity,” the unique interests of this “separate society” often override or outweigh the free speech rights of individuals. After all, service members are responsible for protecting national interests, which doesn’t always go hand-in-hand with exercising a right to free speech. This has long been the opinion of the Court, which said the following in Parker v. Levy in 1974: “The different character of the military community and of the military mission requires a different application of (First Amendment) protections.”
Take a look at the following restrictions on First Amendment rights in the military and how they have played out in real-life cases.
The Military Restricts Political Expression
The UCMJ prohibits service members from speaking ill of the President and other political leaders, thus suppressing political expression. Ignoring this rule could violate Article 88, which forbids commissioned officers from using contemptuous words against certain officials. The punishment for participating in an anti-war rally, for instance, could include dismissal, forfeiture of pay, and imprisonment.
The Vietnam War era tested military restrictions on freedom of political expression. Several rules were unsuccessfully challenged in multiple Supreme Court cases. For instance, in Parker v. Levy (1974), an officer was convicted of criticizing the military and arguing that soldiers should refuse to serve in Vietnam. Then, in Greer v. Spock (1976) and Brown v. Glines (1980), the Court upheld military regulations restricting or prohibiting the distribution of political materials on military bases.
The Military Restricts Religious Observance
One of the military’s primary objectives is to maintain a cohesive, homogeneous community among its ranks. This goal outweighs an individual’s right to wear certain clothing, even for religious purposes. For example, in Goldman v. Weinberger (1986), the Court held that the Air Force could prohibit an Orthodox Jewish service member from wearing a yarmulke because it violated the dress code.
The Military Restricts Freedom of Speech on Social Media
Military members are free to express themselves on social media based on their First Amendment rights. However, anything they post, share, like, or comment on is still subject to the UCMJ and basic rules of service member conduct. This means talking negatively about or being disrespectful toward a supervisor officer is not allowed. Officials recommend that “if you wouldn’t say it in formation to your leader’s face, don’t say it online.”
Freedom of speech on social media is about more than just being respectful—it’s also about maintaining operational security. Releasing sensitive information could be detrimental because “the enemy is watching” at all times.
Disloyal statements on social media are treated just as seriously as if they’re spoken in person. Take the case of Marine Lt. Col. Stuart Scheller Jr., who was prosecuted for publicly criticizing military leadership for the chaotic withdrawal from Afghanistan in August and September 2021. He was accused and pleaded guilty of violating several articles of the UCMJ, including:
- Article 88, displaying contempt toward officials
- Article 89, disrespect toward a superior commissioned officer
- Article 90, willfully disobeying a superior commissioned officer
- Article 92, failure to obey an order or regulation
- Article 133, conduct unbecoming an officer and a gentleman
Scheller stated: “I did what I did because I thought it was in the best long-term interest of the Marine Corps. Going forward, I am still demanding accountability.” Corps officials have made it clear that proper channels are in place for Marines to raise concerns about accountability via their chains of command, and criticizing leadership on social media is not an acceptable substitute for this.
The Military Denounces All Acts of Sedition and Insurrection
Freedom of speech and the right to peaceably assemble are at the very heart of the United States Constitution. However, these rights have their limitations, whether being applied to military members or the general public.
This issue came to light following the attack on the US Capitol on Jan. 6, 2021. An analysis conducted by NPR determined that nearly 20% of the people charged with involvement in the assault have a military history. (For comparison, about 7% of American adults are military veterans.) In response to the attempted insurrection, top military leaders reminded all those involved that free speech is limited to peaceable protests and petitions, not violence, sedition, and insurrection.
When Do Service Members Receive First Amendment Protections?
While military members don’t enjoy the same access to free speech as civilians, they still have certain rights. For instance, all service members have a right to protected communication under the Inspector General Complaints Resolution program. This program allows service members to lawfully report any fraud, waste, abuse, criminal activity, violations of directives, or other wrong doings to others up the chain of command. If a military member believes an action was taken, withheld, or threatened against them for making a protected communication, they may file a complaint and request whistleblower protection, if necessary.
Service members should know that statements to the press and on social media are not considered protected communications, so disciplinary action may occur if the communications violate the UCMJ. However, many properly aired grievances are permitted, especially if the member speaks out of uniform, the issue is not strictly partisan, and it’s clear the statement doesn’t necessarily reflect the military’s position. Still, it’s wise to seek legal advice before making any statements to the press or on social media.
Defend Yourself against Military Prosecution
The military may be a distinct society governed by its own criminal code, but you can still defend yourself against allegations. Joseph L. Jordan, Attorney at Law, is here to represent your case. We’ll make sure you receive the best possible legal advice and protect your rights before a judge. We only handle cases pertaining to the articles of the UCMJ, so you can trust our experienced team to help you achieve the best possible outcome.
If you are facing a court-martial for crimes related to the First Amendment, please reach out to our military law office. You can contact us online or call us toll-free at 800-580-8034 or 254-221-6411 to speak directly with Mr. Jordan about your case.