lgo

Military Counseling Network
Located in Germany.
phone: 0631-624 873 93 (new!)
email: mcn@dmfk.de

search only MCN
donate
 
 

Free Speech Fact Sheet

 
   
 

After you read this fact sheet, please call the Military Counseilng Network (06223-47506) or, if stationed CONUS, the GI Rights Hotline (877-447-4487) to talk over your options with a counselor.

Overview
Religious Freedom
Expression of Opinion
Speech and Conduct towards Officers
Publications and printed material
Assembly and Demonstrations
Wearing the Uniform
Unions and Labor Organizing

Overview

The First Amendment – which prohibits Congress from making any law restricting freedom of religion, freedom of speech, freedom of the press, the right of peaceable assembly, or the right to petition the government for a redress of grievances – guarantees only minimal political rights to members of the military. Legal restrictions placed on the exercise of those rights have been accepted by Congress, and the courts, because of the military's perceived need to maintain loyalty, discipline, and morale, and the fear that unrestricted freedom of expression could lead to undue military influence on political affairs.

The laws and regulations governing the rights of members of the military, while restrictive, provide for a fair number of rights. However, informal retaliation and improper punishment are not unusual consequences for members who exercise their rights. Servicemembers should not assume that it is safe to exercise a right simply because regulations and the Constitution provide for it.

Commands often look for other reasons to take disciplinary steps. Soldiers who make protests find that haircut regulations are applied to them with enthusiasm, that their tendency to be five minutes late after lunch like the rest of their unit is suddenly not acceptable. Health and welfare inspections and random drug searches may increase after GIs attend a rally. Informal reprisals, harassment, and allegedly unrelated personnel actions are common as well. These are discretionary matters – assigning protesters more deck-swabbing or clean-up duty than others isn't illegal, only doing so because they are protesters. Recipients of arbitrary actions of this sort can challenge them successfully only if they can prove the improper motives behind them. (Rules of Disengagement p.72)

DoD Directive 1325.6 can be difficult to read because it often speaks in the negative, explaining prohibitions and limits on the rights rather than describing the rights themselves (RoD p.79). For example, it explains the right to participate in off-base demonstrations in the United States only by pointing out that servicemembers may not demonstrate on base.


Religious freedom Back to Top

Many servicemembers find that there are conflicts between the requirements of their religion and the rules governing military life. People who wear religious clothing, such as yarmulkes or veils or whose beliefs require them to eat specific foods or worship at particular times often find their commands unsympathetic to their needs. A servicemember's freedom to practice his or her religious beliefs will be accommodated “when accommodation will not have an adverse impact on military readiness, unit cohesion, standards, or discipline.” When there is continued “tension between the unit's requirements and the individual's religious beliefs, “commanders are instructed to consider assignment, reassignment, reclassification, or separation” as well as punishment under the UCMJ. (DoD Directive 1300.17)

Expression of opinion Back to Top

Members are permitted to express unpopular views, although many commands are unaware of, or ignore, that right. Servicemembers can speak to each other, to civilians, and to the media about their views. However, public expression must be off-duty and out of uniform, without implying that the person or statements represent the military.

Freedom of speech for members of the military is restricted by several articles of the UCMJ. For example, Article 134 prohibits “disloyal statements” made “with the intent to promote disloyalty or disaffection” or “to interfere with or impair the loyalty to the United States.” A disloyal statement is more than simply complaining or criticizing US policies, officials, or departments. To be prosecuted, a statement must be made publicly with the intent to interfere with loyalty to the “political entity” of the United States. For example, a criticism of the Army would not be disloyal but advocating the overthrow of the US government might be. UCMJ articles 99 and 104 list further restrictions placed on servicemembers' freedom of speech when facing an enemy.

DoD Directive 1325.6 also attempts to regulate participation in “organizations that espouse supremacist causes; attempt to create illegal discrimination based on race, creed, color, sex, religion or national origin; advocate the use of force or violence; or otherwise engage in efforts to deprive individuals of their civil rights.” (RoD p.80)

In much the same manner as other federal employees, servicemembers are also restricted in their participation in electoral politics and may not participate in partisan political management, campaigns, or conventions to support a political party or candidate. (DoD Directive 1344.10)

Speech and conduct towards officers Back to Top

Articles 89 and 91 of the UCMJ restrict a servicemember's freedom of speech by prohibiting “disrespect toward [a] superior commissioned officer,” and, further, it is also a crime if a member “treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer.”

Publications and printed material Back to Top

Servicemembers can print their own publications as long as the work occurs off-base, on their own time, and with their own money and equipment. Underground newpapers are part of military tradition. During World War II, GI newsletters helped lesbian and gay soldiers and sailors stay in touch and provided a refuge from military homophobia. During the Vietnam war, they gave voice to anti-war and civil rights sentiments, and they provided invaluable information about the reality of US policy in Vietnam. The editors and writers of the publications almost always faced threats of punishment when their identities were discovered. Servicemembers may also possess a single copy of any publication – but they may not distribute anything on base without the prior approval of the commander. The commander will prohibit distribution of any material that presents “a clear danger to the loyalty, discipline, or morale of military personnel, or if the distribution of the publication would materially interfere with the accomplishment of a military mission.” The “mere possession of unauthorized material may not be prohibited,” but material can be impounded if the commander determines “that an attempt will be made to distribute.” Possession of more than one copy of a publication is usually considered an attempt to distribute. (DoD Directive 1325.6, see also AR 600-20 §5-9.; AFI 51-903 §2)

Assembly and demonstrations Back to Top

The right of peacable assembly is restricted as well. Off-base gathering places may be placed off limits by military commanders when they determine that “activities taking place there, including counseling members to refuse to perform duty or to desert, pose a significant adverse effect on servicemembers' health, morale, or welfare; or otherwise present a clear danger to the loyalty, discipline, or morale of a member or military unit.” Demonstrations or activities on military bases are prohibited when they “could result in interference with or prevention of orderly accomplishment of the mission of the installation or facility, or present a clear danger to loyalty, discipline, or morale of the troops.” Servicemembers may participate in demonstrations off-base, as long as they are not in a foreign country, are off-duty, their activities do not “constitute a breach of law and order,” and violence is not “likely to result” from the demonstration. (DoD Directive 1325.6)

Wearing the uniform Back to Top

Military servicemembers may not wear their uniform when doing so “would tend to bring discredit upon the Armed Forces.” Wearing of the uniform is expressly prohibited “when participating in activities such as public speeches, interviews, picket lines, marches, rallies, or any public demonstration (including those pertaining to civil rights)” not sanctioned by the military. (DoD Directive 1334.1)

Unions and Labor organizing Back to Top

A right denied to members of the military is to organize as a labor force. US law states that “unionization of the armed forces,” including “conventional collective bargaining and labor-management negotiation” are “incompatible with the military chain of command, ...undermine the role, authority, and position of the commander, and would impair the morale and readiness of the armed forces.” Strikes, slowdowns, picketing, and “other traditional forms of job action” have “no place in the armed forces” and are prohibited. The anti-unionization bill goes well beyond what is often thought of as labor or union organizing and prohibits collective presentation of grievances. (10 USC §976; DoD Directive 1354.1)