Military speech

By Bill Kenworthy, Legal Researcher

When the subject of this article came up during a conversation with a friend and military veteran, he laughed and said he could write the article himself. He said he would simply write “The First Amendment and the Military … it doesn’t apply.”

Certainly this belief is widespread, and actually, it’s not far from the truth. In 1974 the U.S. Supreme Court wrote, “While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it” Parker v. Levy, 417 U.S. 733, 758 (1974). This quote from the Court sums up what is known as the Doctrine of Military Necessity or the military-deference doctrine.

Though it did not become entrenched in modern legal thought until the Levycase in 1974, the view of the military as a separate community, where constitutional freedoms can be applied differently, was first recognized by the Supreme Court in 1953. Ruling in Orloff v. Willoughby, 345 U.S. 83 (1953), the Court said: “The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.”

Military necessity has played a defining role in almost all cases involving the First Amendment freedoms of service members since 1974.

Religious liberty in the military
“A basic principle of our nation is free exercise of religion. The Department of Defense places a high value on the rights of members of the Armed Forces to observe the tenets of their perspective religions. It is DOD policy that requests for accommodation of religious practices should be approved by commanders when accommodation will not have an adverse impact on military readiness, unit cohesion, standards, or discipline.” So reads the first paragraph of Department of Defense Directive 1300.17 “Accommodation of Religious Practices Within the Military Services.” Military commanders are given the authority to determine the appropriateness of any request based on their assessment of how it will affect a unit’s morale, cohesiveness and discipline; individual liberties are of secondary consideration.

Goldman v. Weinberger
The leading Supreme Court case concerning religion and the military is Goldman v. Weinberger, 475 U.S. 503 (1986). S. Simcha Goldman, an ordained Orthodox rabbi, served as a clinical psychologist in the U.S. Air Force beginning in 1977. From Sept. 1, 1977, to May 8, 1981, Goldman wore his yarmulke without incident. In April 1981, Goldman testified as a defense witness at a court martial wearing his yarmulke but not his service cap. Later, opposing counsel lodged a complaint with the base commander arguing that Goldman had violated an Air Force regulation that stated in part that “[h]eadgear will not be worn … [w]hile indoors except by armed security police in the performance of their duties.” Goldman was notified by the base commander that wearing his yarmulke indoors did indeed violate Air Force regulations and ordered him to cease wearing it indoors on base except in the base hospital. Goldman refused to obey the order, received a formal reprimand and his application to extend his term of service was denied.

Goldman filed suit in U.S. District Court for the District of Columbia on July 2, 1981, claiming that the regulation violated his First Amendment right to exercise his religious belief. The district court granted a preliminary injunction against enforcement of the regulation. This ruling was appealed to the U.S. Circuit Court of Appeals for the District of Columbia, which reversed the lower court’s decision.

In 1986, the case reached the U.S. Supreme Court, which, in a 5-4 decision, affirmed the appeals court decision against Goldman. Justice William Rehnquist, writing the opinion for the Court, noted that Goldman argued for the Court to analyze the Air Force regulation under the standard the Court had used in an earlier, non-military related, free-exercise case. This standard required the government to show a compelling interest to justify restricting a citizen’s free-exercise right. The need to show a compelling interest involves a higher standard of scrutiny and is a more difficult standard to reach.

Rehnquist rejected applying this standard in Goldman’s case, saying, “[W]e have repeatedly held that the military is, by necessity, a specialized society separate from civilian society. Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.” The Court held that the military was the best judge of whether a particular regulation was proper and that courts are “ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have.”

Rehnquist added that although these types of regulations may make military life more objectionable for some, “the First Amendment does not require the military to accommodate such practices in the face of its view that they would detract from the uniformity sought by the dress regulations.”

Adair v. England / In re: Navy Chaplaincy
Another case highlighting a different sort of conflict is Adair v. England / In re: Navy Chaplaincy. This is a long-running, still active case consolidated in 2007, involving several current and former Navy chaplains, the U.S. Navy, and dozens of motions. The plaintiffs in this case are 17 non-liturgical Navy chaplains and Chaplaincy of Full Gospel Churches, an ecclesiastical endorsing agency that certifies non-liturgical Christian clergy for service in the military. (Non-liturgical denotes Christian denominations that do not have a formal liturgy or order in their worship service.) They brought suit in U.S. District Court in Washington, D.C., against the Department of the Navy alleging that certain Navy policies and practices violate, among other things, the establishment and free-exercise clauses of the First Amendment by favoring liturgical over non-liturgical Christian chaplains. The first big decision in this case came in response to a motion to dismiss by the Department of the Navy in January 2002. (See Adair v. England, 183 F.Supp. 2d 31 (D.D.C. 2002)).

The plaintiffs alleged that in the late 1980s the Navy instituted a subjective “needs of the service” policy to determine how many chaplains it would hire from various religious denominations to fill its Chaplain Corps. The plaintiffs called this policy the “thirds policy” because allegedly the Navy reserved a third of its slots in the corps for liturgical Christians, a third for Catholics, and a third for all other religions. The “thirds policy,” plaintiffs say, was also used in decisions on promotions and retentions on active duty. According to the claim, the problem with this policy is that only about a third of Navy personnel belong to a liturgical church. Half of all those serving in the Navy belong to non-liturgical faiths, according to a defense-manpower report. Yet two-thirds of the chaplain slots are reserved for liturgical churches — Catholics and other liturgical Christians.

The Adair plaintiffs claim the Navy instituted the “thirds policy” to create a denominational barrier allowing liturgical Christian chaplains to maintain control of the Chaplain Corps. This, in effect, would be an impermissible endorsement of liturgical Christianity as the preferred official religious tradition in violation of the First Amendment’s establishment clause.

The plaintiffs also claim “that the Navy’s discriminatory policies … deny would-be congregants their First Amendment constitutional right to the free exercise of their religion by denying or severely limiting their access to chaplains and worship services of their faith group.”

U.S. District Judge Ricardo M. Urbina started his analysis by determining the appropriate standard of review for the case. Urbina looked to U.S. Supreme Court precedent and concluded that in cases in which government allegedly prefers one religion over another, strict-scrutiny analysis applied. Strict-scrutiny is the most rigorous test used by the courts to analyze government policies and laws, requiring the government to show that a given law serves a compelling government interest and is the least restrictive means to achieve that interest. The Navy urged the district court to apply a more deferential application of the strict-scrutiny test, as in Goldman v. Weinberger. Urbina, however, disagreed and pointed out that “since operational or strategic considerations are not at issue [in this case], the court need not give the military the same level of deference that it otherwise might.”

Using strict scrutiny, Urbina found that the plaintiffs had successfully stated a claim that the Navy’s practices and policies related to hiring and retention of its chaplains were not justified by a compelling government objective, were not narrowly tailored to accomplish that objective and that they violated the establishment clause. Thus the claims survived the defendant’s motion to dismiss.

The Adair plaintiffs have also challenged other Navy policies and alleged other discriminatory practices. For instance, they alleged that the Navy’s policy of having only a “general Protestant” service and restricting other forms of non-liturgical services was an attempt to “establish a de facto liturgical religion for its personnel,” which amounted to an unconstitutional endorsement for a specific religious tradition. The Navy claimed, because of the broad range of faiths of Navy personnel, that the ‘general Protestant’ service policy was justified in order to fulfill the religious needs of as many Navy personnel as possible.

In another claim, the plaintiffs allege that senior officials in the Chaplain Corps criticized and berated non-liturgical chaplains “for preaching and teaching truths of the Christian faiths and their specific religious tradition” and disciplined a non-liturgical chaplain for ending his prayers by saying “in Jesus’ name.” The plaintiffs asserted that these actions were unconstitutional abridgements of religious speech. Urbina ruled that these claims survived the defendant’s motion to dismiss, finding that the alleged policies were not justified by a compelling government interest.

Since this decision was reached, the courts have published more than a dozen opinions addressing various motions from both parties. The latest came in August 2008 when the U.S. Circuit Court of Appeals for the District of Columbia upheld a ruling from Judge Urbina, which said that the plaintiffs lacked standing to bring the claim. The plaintiffs had sought a preliminary injunction to prevent the Navy from giving preferential treatment to Catholic chaplains. Urbina found the plaintiffs failed to show that they personally suffered a concrete and particular injury, a key element to establish standing to bring a lawsuit. The case is currently before Urbina.

Veitch v. Danzig
Adair v. England / In re: Navy Chaplaincy is not the only time an alleged conflict between liturgical and non-liturgical chaplains has been litigated.

In February 2001, a federal judge in Washington, D.C., heard the case Veitch v. Danzig. Former Navy officer Philip Veitch, an ordained minister of the non-liturgical Reformed Episcopal Church, sought a preliminary injunction to reinstate him in the Navy. Veitch claimed his resignation was, under the circumstances, involuntary; that he was forced to resign “by unconstitutional demands of his command chaplain and others.” Veitch v. Danzig, 135 F.Supp. 32, 33 (D.D.C. 2001). Veitch argued that he was unconstitutionally required to preach “pluralism among religions” and that this went against his religious beliefs. Veitch claimed the cause of the unconstitutional treatment was due to his affiliation with a non-liturgical church.

U.S. District Judge Thomas Penfield Jackson denied the injunction, ruling that Veitch did not demonstrate a substantial likelihood of success on the merits of his claim and that he failed to show that irreparable harm would result from denial of his motion. The defendants then filed a motion to dismiss, which was granted. Jackson ruled that Veitch’s resignation from the military was voluntary and not the result of coercive action by his superiors.

Veitch appealed to the U.S. Circuit Court of Appeals for the District of Columbia, which wrote: “Veitch would have us confront a rather troubling constitutional question: whether chaplains in the armed services can be required to endorse pluralism in their religious practices.” The appeals court did not answer the question, writing, “Fortunately for us — and unfortunately for Veitch — we need not decide this difficult question. We agree with the district court that [Veitch’s] resignation was voluntary.” Veitch v. England, 471 F 3d. 124 (D.C. Cir. 2006). Since Veitch resigned voluntarily and was no longer in the Navy, he lacked standing to bring the suit, the appeals court said in dismissing it.

Larsen v. U.S. Navy
In April 2007, the federal court in Washington, D.C., heard another chapter in the liturgical/non-liturgical debate, and handed down a decision that could affect the Chaplaincy case as well as any future cases challenging religious practices in the military. In Larsen v. U. S. Navy, three non-liturgical Protestant ministers claimed that the Navy had unconstitutionally established quotas for chaplain hiring that intentionally favor liturgical clergy. Both parties in the case filed motions for summary judgment.

Judge Urbina said that the case boiled down to a challenge to the Navy’s “now extinct thirds policy” and its current chaplaincy hiring policy. The Navy, while not admitting that it ever actually had employed the “thirds policy,” said it had “abandoned” using faith group specific goals or targets in their hiring process in 2001 and now used a “faith group neutral system.” Urbina accepted this statement and ruled that, since the “thirds policy” was no longer in use and no allegations were made that it would be reinstated, an injunction to end the “thirds policy” would serve no purpose. The challenge was dismissed as moot.

Urbina then tackled the issue of the Navy’s current hiring policy. To start, he had to determine the level of scrutiny to use in the present case. Urbina had dealt with this issue in Adair, when he determined that the strict-scrutiny standard should be used to analyze the Navy’s hiring practices. In Larson,however, even with the similar facts and same controversy, Urbina said that a relaxed standard should be used. He explained the change by pointing out that in the Adair case, no attempt was made to show how the challenged policies and practices — alleged religious preferences for liturgical Christian chaplains, as in this case — would further any operational, strategic or tactical objectives. In Larsen, Urbina wrote: “Without the Navy demonstrating a link between the chaplaincy and strategic or national defense concerns, the court (in Adair) was left to conclude that the Navy’s interest in creating the chaplaincy constituted only quality-of-life issues which were designed to hire, retain, and promote chaplains to satisfy the religious needs of Navy service members.”

With no strategic or national defense concerns at issue, Urbina had felt in Adairthe need to analyze the Navy’s policies using the higher standard.

In Larsen, however, the Navy told Urbina that “Chaplains help prepare and maintain sailors’ and marines’ ability to engage in combat and other tactical, strategic, and operational missions, directly tying chaplains to the Navy’s ability to defend the nation.” The judge took the Navy’s statement at its word and concluded “that the Navy’s interest in developing a chaplaincy is akin to the Air Force’s needs in mandating standards of uniformity at play in Goldman; that is, it concerns operational, strategic, or tactical matters. For this reason, the relaxed scrutiny employed in Goldman is the appropriate level of judicial scrutiny in evaluating how the Navy goes about implementing those goals.” Therefore, Urbina established that the case would be evaluated using “the relaxed scrutiny standard set forth in Goldman.

Under this standard “the court assesses whether legitimate military ends are sought to be achieved and whether the program is designed to accommodate the individual rights to an appropriate degree.” The judge explained that since the military is not constitutionally required to organize and maintain a chaplaincy program, it need not satisfy every single service member’s free-exercise needs. The program needs only to promote free exercise of religion and, if it works toward accommodating those needs, then the program is constitutionally sound. Taking this into account, Urbina found the Navy’s chaplaincy program does serve a legitimate military end and “does what is possible under the circumstances to accommodate individual rights to an appropriate degree.”

This case was appealed to the U.S. Circuit Court of Appeals for the District of Columbia but, as that court wrote, “the plaintiffs challenged only the legality of the … Thirds Policy.” The appeals court agreed that the entire case was moot and thus it had no jurisdiction to evaluate it.

Other cases
Wilkins v. U.S. — Ronald Wilkins claimed that he was unconstitutionally selected for early retirement due to the Navy’s discriminatory policies toward non-liturgical faith groups in the Chaplain Corps. The Navy was granted summary judgment; no precedents set.

Klingenschmitt v. Winter — Lt. Gordon James Klingenschmitt, a former Navy chaplain, claimed that the Navy had conspired to restrict him from practicing his faith and wrongfully commenced termination proceedings when he switched his religious affiliation. Again, the Navy was granted summary judgment, which was upheld the U.S. Circuit Court of Appeals for the District Of Columbia Circuit.

Hall v. Welborn — On March 5, 2008, Army Specialist Jeremy Hall filed suit accusing Army Major Freddy J. Welborn of violating his First Amendment rights when Welborn disrupted a meeting of soldiers who identified themselves as atheists, freethinkers or adherents to non-Christian religions. Hall, an atheist, brought the suit in U. S. District Court in Kansas. Hall had organized the meeting after getting permission from an Army chaplain. During the meeting, however, Welborn allegedly confronted the attendees and threatened to bring charges against Hall under the Uniform Code of Military Justice and to prevent him from re-enlisting. Hall also claimed that he faced other discrimination because of his views.

In October 2008, Hall dropped his lawsuit, saying he planned to leave the Army in early 2009.

Chalker v. Gates — As one lawsuit was dropped, another was filed. In October 2008, Specialist Dustin Chalker, an atheist, filed suit in the same district court as Hall. Chalker claimed that his First Amendment rights were violated because he was required to attend three events where sectarian Christian prayers were delivered. Chalker is seeking an injunction barring the military from interfering with his right to be free of compulsory religious practices and prohibiting mandatory attendance at functions that include a sectarian prayer.

On Dec. 30, 2008, Chalker filed an amended complaint to his lawsuit listing additional specific examples of “constitutionally impermissible promotions of religious beliefs within the [DOD] and the United States Army.” The amended complaint also claims that Chalker has failed to obtain the relief sought through the official Army administrative process and has exhausted that process. The claim that Chalker obtained no relief is important because the military argued in Hall’s case that he had not exhausted the process.

Freedom of speech and the military
Various military regulations and directives place limits on service members’ right to free speech. These include the Uniform Code of Military Justice (UCMJ) and Defense Department Directives. In the civilian world, many of these restrictions would not be allowed. However, with the courts’ deference to the military’s judgment, the restrictions have been upheld.

The UCMJ was passed by Congress in 1950 and became effective a year later. Subchapter X of the UCMJ is the “Punitive Articles,” which include four of the more scrutinized articles in the UCMJ. These are Article 88, Contempt Toward Officials; Article 92, Failure to Obey Order or Regulation; Article 133, Conduct Unbecoming an Officer and a Gentleman; and Article 134, General Article.

Parker v. Levy
The 1974 Supreme Court case Parker v. Levy challenged the constitutionality of two of these UCMJ articles. Howard Levy, a physician and captain in the Army, was prosecuted under Articles 133 and 134; 134 punishes, among other things, “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” He was charged with “wrongfully and dishonorably” making “intemperate, defamatory, provoking, disloyal, contemptuous and disrespectful” statements to Special Forces personnel and enlisted personnel who were patients or under his supervision.

Levy was chief of the dermatological service at Fort Jackson, S.C., and one of his duties was to conduct a clinic for the training of Special Forces medics. The hospital commander gave Levy a written order to conduct the training after it came to the commander’s attention that it was not being carried out satisfactorily. Levy said he would not carry out the order because of his medical ethics, which the court opinion did not specify.

During the same period Levy made several public statements to enlisted personnel, such as:

“The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don’t see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.”

Levy was convicted in the military courts and appealed the decisions all the way to the 3rd Circuit, which reversed his conviction, holding that the articles were void for vagueness. But the 3rd Circuit decision was eventually heard by the U.S. Supreme Court.

The Supreme Court reiterated its stance from the Orloff case that the military is “a specialized society separate from civilian society” and added that “military law … is a jurisprudence which exists separate and apart from the laws which govern in our federal judicial establishment.” With this in mind, the high court concluded that “Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [the military] shall be governed.”

The Court also noted in its 5-3 ruling that because of this greater breadth the military makes an effort to advise its personnel of the contents of the UCMJ rather than presuming that they know it. In addition, and again taking into account the differences between civilian and military life, the Court found that the proper standard of review for a vagueness challenge to UCMJ articles is that which is applied to civilian criminal statutes regulating economic affairs. As the Court put it, “one to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Thus, Levy had no standing to make a vagueness challenge since, according to the Court, he should have had no reasonable doubt that his statements were in violation of the UCMJ.

The high court also dismissed the overbreadth challenge to the UCMJ articles. It said that challenges to the articles must still be weighed against the military’s necessity for obedience and discipline and that speech that may undermine the effectiveness of command is not constitutionally protected. The Court also analyzed the amount of speech affected by the articles and found that: “While there may lurk at the fringes of the articles, even in the light of their narrowing construction by the United States Court of Military Appeals, some possibility that conduct which would be ultimately held to be protected by the First Amendment could be included within their prohibition, we deem this insufficient to invalidate [the articles].”

U.S. v. Howe
Only one military officer has been convicted under Article 88, Contempt Toward Officials, since it was enacted in 1951. (U.S. v. Howe, 17 U.S.C.M.A. 165 (C.M.A. 1967)) In 1967, 2nd Lieut. Henry H. Howe was charged and convicted by a general court martial of using contemptuous words against the president and conduct unbecoming an officer and a gentleman for his participation in a Vietnam War protest. Howe was seen walking with a group of protesters and carrying a sign that said, “LET’S HAVE MORE THAN A ‘CHOICE’ BETWEEN PETTY, IGNORANT, FACISTS (sic) in 1968” on one side and “END JOHNSON’S FACIST AGRESSION (sic) IN VIETNAM” on the other. Howe was not involved in organizing the protest, joined it in progress, was off duty and was not in uniform.

Howe appealed to the U.S. Court of Military Appeals, claiming that the charges against him violated the First Amendment, among other things. The court discussed the historical and judicial history of Article 88 and its predecessors, and noted that “the evil which Article 88 … seeks to avoid is the impairment of discipline and the promotion of insubordination by an officer of the military service in using contemptuous words toward [the President.]”

The military appellate court then discussed the First Amendment and quoted the U.S. Supreme Court, noting that freedom of speech is not absolute and can be restricted by the government in certain situations. In particular the court applied the clear-and-present danger test from Schenck v. U.S. (1919), and concluded: “In the present times and circumstances such conduct by an officer constitutes a clear and present danger to discipline within our armed services.” The military appeals court ruled that Article 88 did not violate the First Amendment.

U.S. v. Wilson
Charges based on Article 92, Failure to Obey Order or Regulation, are more frequent but are rarely challenged on First Amendment grounds. One such challenge came in 1991 in the case U.S. v. Wilson, 33 M.J. 797 (A.M.C.R. 1991). Military Policeman Samuel M. Wilson was convicted of disobeying a lawful order and dereliction of duty when, while preparing for a flag-raising detail, he blew his nose on the American flag. Wilson “complained to his fellow MPs that the Army and the United States ‘sucked’” and then blew his nose on the flag, saying “[this] is what I think.” Wilson was charged with dereliction of duty in that he “willfully failed to ensure that the United States flag was treated with proper respect by blowing his nose on the flag when it was his duty as a military policeman on flag call to safeguard and protect the flag.”

The military judge deciding the case found that Wilson’s actions amounted to expressive conduct and were entitled to First Amendment protection “unless there is a greater countervailing government interest in suppressing the particular speech or expressions in question.” The judge then acknowledged that members of the military do have freedom of speech, but that it is limited in comparison to what civilians enjoy and that if Wilson had been a civilian he would have been protected. However, the judge found that the government did have an overriding interest in proscribing this type of conduct, especially in that Wilson violated a specific military duty.

The case was taken to the Court of Military Review, which upheld the conviction. The court said military necessity can be a compelling government interest warranting the limitation of free speech. The review court summed up by saying “the military judge … properly took into account the unique needs of the military community, [Wilson’s] flag-raising duty as a military policeman at the time of the incident, and the fact that the prosecution was for dereliction of duty to safeguard the government-owned flag. Furthermore, the military judge correctly balanced the needs of the government in promoting a disciplined military force with [Wilson’s First Amendment rights.]”

Only a couple of Defense Department directives restrict speech, and from these the individual services have generated their own regulations. A challenge to one of these regulations, Brown v. Glines, is discussed later in this article in the petition section. The main directives that restrict speech are DOD Directive 1344.10, “Political Activities by Members of the Armed Forces” and 1325.6, “Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces”

Rigdon v. Perry
Only DODD 1344.10 has been directly involved in a free-speech case. In Rigdon v. Perry several military clergymen filed suit against the military, challenging, among other things, the constitutionality of directives prohibiting them from encouraging their congregants to contact members of Congress concerning pending legislation.

In June 1996, the U.S. Catholic Church initiated a campaign urging Catholic priests to encourage parishioners to write to their members of Congress asking them to override President Clinton’s veto of the Partial Birth Abortion Ban Act. The three branches of the military all issued memoranda informing staff chaplains that participation in the campaign was against directives.

U.S. District Judge Stanley Sporkin ruled for the clergymen. Sporkin said the memoranda and Directive 1344.10 prohibit the use of “official authority or influence to … solicit votes for a particular candidate or issue.” Since the clergymen were urging their congregants to contact their representatives and asking the representatives to vote in a certain way, they did not run afoul of the directive. The judge concluded that such indirect solicitation was within the allowable limits of the directives. In addition, Sporkin noted that military clergy have no “official” authority. Their legal status in the military is “rank without command,” which means they cannot give orders and thus have no official authority to misuse. As a final point, the judge said the Defense Department directive violated the Religious Freedom Restoration Act and the First Amendment. He determined that chapels on military property are designated public forums, meaning the government has opened these facilities as a place for public assembly and speech, for use by certain speakers, or for discussion of certain subjects. In a designated public forum any speech restrictions must be content- and viewpoint-neutral — i.e. restrictions, can’t be based on the message or viewpoint of the speech in question.

New technologies, new problems
Technological advances in online communication have given rise to a new set of problems and concerns for the military, as well as to those concerned with service members’ First Amendment freedoms.

In the past several years servicemen and women have begun writing online journals about their experiences and opinions about the world, politics and their everyday experiences in the military. The popularity of these online journals, known as milblogs, has skyrocketed with both authors and readers. According to Milblogging.com, a database that tracks military blogs, there were more than 2,000 military blogs in 38 countries as of August 2008. More than 500 of them originated from the front lines of the wars in Iraq and Afghanistan. Those milblogs provide an important look at the war by presenting unique insights from the points of view of those who are fighting it.

The DOD is of course concerned about the content of posts made in these blogs, fearing that operational security may be compromised. In 2005 the commander of the multinational forces in Iraq, Lt. General John R. Vines, issued a policy memorandum concerning “Unit and Soldier Owned and Maintained Websites.” The policy required all U.S. military and DOD personnel to register their Web sites with their unit chain of command. These personnel were to provide their unit, location, Webmaster name, domain name, IP address and the company hosting the site. They were also instructed that no prohibited information was to be published. Prohibited information includes classified information, casualty information before next-of-kin notification, anything protected under the Privacy Act, information related to ongoing investigations, and “For Official Use Only” information. In addition, the unit commanders were to do a quarterly review of the registered sites to ensure compliance with the policy. The Army has since revised its regulations and added that bloggers must “consult with their immediate supervisor and their OPSEC (Operational Security) Officer for an OPSEC review prior to publishing or posting information in a public forum.”

First Amendment advocates fear that these regulations will have a “chilling effect” on the free speech of military personnel and result in many milblogs getting shut down. The military, on the other hand, insists that it has the highest respect for the First Amendment rights of its service members and that these regulations are necessary to prevent the release of sensitive information.

In a further monitoring effort, the DOD created AWRAC, the Army Web Risk Assessment Cell. According to an article written by Maj. Pam Newbern for the Army News Service, “Virginia National Guard eyes Web sites, blogs,” AWRAC was created in 2002 to monitor official Web sites, but this mission was expanded in 2005 to include unofficial sites written by service members. Then in July 2006, a team of 10 Virginia National Guardsmen was activated to scan official and unofficial Army Web sites for one year looking for operational-security violations. Over that year that group looked at 878 Army-run sites and 594 soldiers’ blogs; it found 1,956 security violations on the official sites and 26 violations on the blogs, showing that official sites were more likely to violate its regulations than the soldiers’ blogs.

The media, the military, and the First Amendment
During the Vietnam War, the mainstream press enjoyed virtually unlimited access to combat zones and other areas of military operations, so long as Pentagon guidelines were followed. Official censorship was practically nonexistent and journalists’ access was limited only by the field commanders’ discretion. This relationship changed drastically, however, as the news media showed the realities of war and, according to military leaders, its reporting turned negative. In an article for Parameters, a quarterly journal from the U.S. Army War College, Margaret H. Belknap wrote, “The media’s enormous negative coverage of the Tet Offensive marked the turning point in the Vietnam War and, as such, became the basis for heated debate as to whether the military or the media lost the war.” This debate led both parties to distrust the other and undoubtedly led to the military’s decision to prohibit journalists from riding along to cover U.S. military operations in Grenada and Panama.

Flynt v. Weinberger
This prohibition was challenged by Hustler publisher Larry Flynt in 1984. Through the first two days of the Grenada operation, Oct. 25-26, 1983, the news media were barred access to the island and the invasion force. After that, a limited number of reporters were allowed on the island and by early November all restrictions were lifted.

In Flynt v. Weinberger, 588 F. Supp. 57 (D.D.C. 1984), Flynt sought an injunction prohibiting the military from preventing or hindering him from sending reporters to “the sovereign nation of Grenada to gather news.” He also sought a declaration from the U.S. District Court in Washington, D.C., that the military’s prohibition on press coverage of the invasion was unconstitutional. The military moved to dismiss the challenge as moot. The court granted the military’s motion.

In his ruling, U.S. District Judge Oliver Gasch noted that by the time the case made it to court all restrictions had been lifted, leaving no relief for the court to provide. Gasch wrote that even though the invasion did not last long enough for the court to review the controversy, there was no “reasonable expectation” that the controversy would recur.

As a final word on the injunctive relief sought the judge wrote:

“Even if this Court were of the opinion that plaintiffs’ claim for injunctive relief continued to present a live controversy and that the temporary press ban had violated plaintiffs’ constitutional rights, which the Court doubts, it would exercise its equitable discretion and decline to enter an injunction restraining the government from restricting press access to future United States military operations. An injunction such as the one plaintiffs seek would limit the range of options available to the commanders in the field in the future, possibly jeopardizing the success of military operations and the lives of military personnel and thereby gravely damaging the national interest.”

As to declaratory relief, Gasch said such a claim “in cases where the challenged activity has ceased is only viable if the challenged activity resulted from a ‘fixed and definite’ government policy that was ‘essentially carved in stone and self-executing in nature [and] not contingent upon executive discretion.’” Because the press ban, according to the court, was a unique decision based on operational factors and not part of a fixed governmental policy, the request for declaratory relief was denied.

The case was appealed to the U.S. Circuit Court of Appeals for the District of Columbia. The appeals court agreed that the case was moot and dismissal was appropriate. It said, however, that the district court shouldn’t have offered an opinion on the underlying merits of the case because they were not discussed in court. For that reason, the appeals court confirmed the dismissal but vacated the rest of the opinion.

Nation Magazine v. Dept. of Defense
Another lawsuit challenged press restrictions during Operation Desert Storm in Kuwait and Iraq in 1991. In Nation Magazine v. Dep’t of Defense, 762 F.Supp. 1558 (S.D. N.Y. 1991), various news organizations challenged a Defense Department regulation that limited not only the number of journalists who could cover the war but also their access to the battlefield — and placed some restrictions on the content of their stories. The news media sought an injunction from a federal judge in New York to prevent the military from continuing the new restrictions and sought a declaration proclaiming the regulations unconstitutional. The fundamental claim made by the news media was “that the press has a First Amendment right to unlimited access to a foreign arena in which American military forces are engaged.”

U.S. District Judge Leonard B. Sand threw out the claim for injunctive relief, as the restrictions had been removed by the time he heard the case.

Concerning a claim for declaratory relief, Sand court found that since the restrictions were lifted but not formally ended they were capable of being repeated. But, as the judge noted, “the question of the court’s power to hear a case … is only the beginning … a separate and more difficult inquiry is whether it is appropriate for a court to exercise that power.” To answer that question, Sand took up the issue of access.

Because no courts have directly addressed the role and limits of newsgathering under the First Amendment in a military context abroad, the judge looked to U.S. Supreme Court cases that addressed another situation where press access is limited, namely criminal trials. The fundamental theme from these cases was the importance of an informed American citizenry. Judge Sand wrote:

“If the reasoning in these recent access cases were followed in a military context, there is support for the proposition that the press has at least some minimal right of access to view and report about major events that affect the functioning of government, including … an overt combat operation … but this conclusion is far from certain… . In order to decide this case on the merits, it would be necessary to define the outer constitutional boundaries of access. Pursuant to long-settled policy in the disposition of constitutional questions, courts should refrain from deciding issues presented in a highly abstract form, especially in instances where the Supreme Court has not articulated guiding standards. Since the principles at stake are important and require a delicate balancing, prudence dictates that we leave the definition of the exact parameters of press access to military operations abroad for a later date when a full record is available, in the unfortunate event that there is another military operation. Accordingly, the Court declines to exercise its power to grant plaintiffs’ request for declaratory relief on their right of access claim.”

Finally the judge addressed the plaintiff’s argument that the DOD criteria used to choose which organizations to include in the press pools were applied in a discriminatory, and thus unconstitutional, manner. Sand agreed that once the government chose to grant access to the press it created a limited public forum and that the government was obligated to ensure that “access not be denied arbitrarily or for less than compelling reasons.”

That being said, Sand wrote: “The right of the press to be free from regulations that are discriminatory on their face or as applied, however, is not synonymous with a guaranteed right to gather news at all times and places or in any manner that may be desired. The activities of the press are subject to reasonable time, place, and manner restrictions … upon showing that there is a significant governmental interest.” The judge observed that logistics or security concerns may mandate limiting the number of journalists on a battlefield. He went on to question the appropriateness of ruling on the subject at that particular time, expressing concern that doing so would affect future conflicts where limits on the news media might be warranted. The request for a declaratory judgment was denied.

JB Pictures v. Dept. of Defense
Another lawsuit springing from Operation Desert Storm in Kuwait and Iraq wasJB Pictures v. Dept. of Defense. The plaintiffs, JB Pictures and other media and veterans’ organizations, challenged a new Defense Department policy at Dover Air Force Base concerning media coverage of the return of U.S. soldiers killed abroad. Formerly, the return of U.S. war dead was open to the public and media, and was accompanied by ceremonies honoring the dead. The new policy stated:

“It is the military departments’ policy that ceremonies/services be held at the service member’s duty or home station and/or the interment site, rather than at the port of entry. Media coverage of the arrival of the remains at the port of entry or at interim stops will not be permitted, but may be permitted at the service member’s duty or home station or at the interment site, if the family so desires.”

The case, brought in 1993 in federal court in Washington, D.C., focused on access to Dover Air Force Base and the hangar where war dead were returned. U.S. District Judge Royce C. Lamberth granted the Defense Department’s motion to dismiss in the case, saying that none of JB Pictures’ allegations even raised the possibility of a First Amendment claim. JB Pictures claimed that the Defense Department’s restrictions indirectly limited their speech outside the base by keeping them from sources of information, thus denying their rights to free speech and their right of access. Lamberth reviewed U. S. Supreme Court precedent and determined that “the government need not open up all sources of information to everyone…and the government need not be a view-point neutral source of information.”

The case was appealed to the D.C. Circuit. The appeals court observed in J.B. Pictures v. Dept. of Defense (86 F.3d 236 (D.C. Cir. 1996) that the new policy “applies in a uniform fashion to all members of the press and public, regardless of their views on war or the United States military” and was not discriminatory or viewpoint based. The court also accepted the government’s stated interests in implementing the new policy, which was, according to the government, to reduce hardships on families and friends of the deceased who might feel obligated to travel to Dover for the ceremonies, and to protect the privacy of the bereaved.

The next round
Press restrictions imposed in the 2003 invasion of Iraq, Operation Enduring Freedom, touched off two more lawsuits. One, again involving Hustlerpublisher Larry Flynt, was similar to Nation. The other was similar to JB Pictures.

In Flynt v. Rumsfeld, 355 F.3d 697 (D.C. Cir. 2004), Flynt claimed the news media had a First Amendment right of access to U.S. troops in combat operations. He sought an injunction against any interference. Flynt also claimed that the DOD press restrictions were facially unconstitutional.

The U.S. District Court, which first heard the case, denied declaratory relief to Flynt, citing the absence of a concrete controversy and the uncertainty surrounding the publisher’s constitutional claims. Flynt’s request for an injunction also was refused by the court.

Before addressing Flynt’s claims, the D.C. Circuit clarified the right he sought to protect. As the appeals court saw it, Flynt was asserting “that there is a First Amendment right for legitimate press representatives to travel with the military, and to be accommodated and otherwise facilitated by the military in their reporting efforts during combat, subject only to reasonable security and safety restrictions.” But in the court’s view, “There is nothing we have found in the Constitution, American history, or our case law to support this claim.” Flynt’s claims were denied.

The second lawsuit was Getty Images News Services v. Dep’t of Defense, 193 F.Supp. 2d 112 (D.D.C. 2002). Getty Images claimed that the military excluded it from full and fair participation in press coverage of Operation Enduring Freedom. The company said its photographers were kept out of the National Media Press Pool, the Afghanistan Regional Press Pool and the press rotation covering the detention center at the Guantanamo Bay Naval Base.

U.S. District Judge John D. Bates threw out the claims related to the national and regional pools since Getty was given access to the national pool before the case reached the court, and the regional pool was discontinued and open access granted. The Guantanamo claim was also dismissed, though Bates expressed concern that the standards used by the DOD to determine access to the base, considered reasonable by the court, were not written, published or made known to the news organizations seeking access. Because Getty’s claim was dismissed on other grounds, this issue was not explored further.

Stars and Stripes
The Department of Defense publishes the Stars and Stripes newspaper for troops stationed abroad. The newspaper was first printed by Union soldiers in Bloomfield, Mo., during the Civil War, and has been published continually since World War II. Today, Stars and Stripes is published in several editions distributed in Europe, the Pacific and the Middle East.

Though the newspaper has a mandate to be editorially independent, in 1988 a congressional investigation found that military commanders over the Pacific edition of Stars and Stripes had censored it and repeatedly tried to influence its news coverage. The investigation was prompted by newspaper staffers’ repeated allegations of censorship, news management and command influence, which they had complained about since 1986.

A General Accounting Office investigative panel, along with a Society of Professional Journalists advisory group, conducted an analysis comparing news coverage and content in Stars and Stripes in March 1987 with that provided by the major wire services during the same period. The investigators found thatStars and Stripes carried fewer stories on sensitive political subjects, such as AIDS and the Iran-Contra affair, and fewer stories that presented a negative image of the DOD. Investigators also looked into 45 specific allegations of censorship and “news management” between September 1986 and January 1988 and found sufficient evidence to support the claims.

The investigative panel noted the inherent conflict between the dual missions of the newspaper. According to the GAO report, Stars and Stripes is to be like a “regular” newspaper protected by the First Amendment, with the aim of providing DOD personnel with stateside news to help them be informed citizens so they can “intelligently exercise their citizenship responsibilities.” At the same time, the newspaper is “to provide applicable news and information … that improve individual capability for mission accomplishment.” The report said this dual mission set up a conflict between “the media and their emphasis on skepticism and competition in breaking a story and the military and their emphasis on control and respect for authority.”

In response to the report, the Pentagon appointed an independent ombudsman to investigate the allegations. The ombudsman, Philip M. Foisie, also cited problems with the newspaper’s editorial leadership and agreed with the GAO recommendation that the newspaper’s military editors should be replaced with experienced civilian editors.

The management of Stars and Stripes is spelled out in federal regulations at 32 CFR Sec. 246 and in DOD Directive 5122.11. Because of the investigations, the regulations and the DOD Directives concerning management of the newspaper were revised in the early 1990s.

Stars and Stripes is now a Defense Department “authorized” publication. A military officer serves as “commander/publisher,” but the role of editor is now filled by a civilian. The ombudsman position was retained, with that person serving as an independent adviser to the Pentagon and Congress on the newspaper’s independence.

Regulations require Stars and Stripes to operate “without news management or censorship,” and “the calculated withholding of unfavorable news is prohibited.” However, the newspaper is required to include a disclaimer that the contents do not represent the official view of the U.S. government, and certain officials can pull information in limited situations:

“The only circumstances under which news or information that is not in the public domain may be directed to be withheld from publication in the Stars and Stripes by a Unified Command CINC are when such publication:

(i) Involves disclosure of classified national security information.
(ii) Would adversely affect national security.
(iii) Clearly endangers the lives of U.S. personnel.”

Stars and Stripes generates its own revenue through single-copy and subscription sales, advertising, and other authorized sources of revenue, as approved by the Department of Defense and the Congress. The Army is also authorized to dispense congressionally approved funds as necessary.

American Forces Radio and Television Service 
American Forces Radio and Television Service (AFRTS) provides radio and television information and entertainment programming from a mix of American broadcast networks to DoD personnel and their families overseas. Like Stars and Stripes, AFRTS is part of the Department of Defense and, also like Stars and Stripes, has a dual mission. AFRTS’s mission, according to its Web site, “is to communicate Department of Defense policies, priorities, programs, goals and initiatives” and to provide “stateside radio and television programming, ‘a touch of home,’ to U.S. service men and women, DoD civilians, and their families serving outside the continental United States.”

AFRTS broadcasts are only for overseas personnel and their families and are non-commercial. All advertisements are removed and replaced with DoD and other public-service messages. These broadcasts are not available in the continental United States, they are not used by commercial stations, foreign or domestic, nor are they broadcast within range of U.S. commercial stations.

AFRTS broadcasts are only available in foreign countries or on board U.S. Navy ships. This fact creates an interesting quirk in its broadcast policy. Like Stars and Stripes, military leaders aren’t supposed to censor AFRTS content; however AFRTS outlets can broadcast only with the approval of the host government, which assigns the frequencies to be used. Because of this, topics considered sensitive to a host country may be restricted. The U.S. Embassy and the host country collaborate to form a “Host-Country Sensitivity List.” If content of a news broadcast is found to contain “sensitive” content, it cannot be edited; the whole program must be pulled.

The facilities authorized to broadcast AFRTS programming operate under the military’s management and control. They are only allowed to broadcast AFRTS authorized information and entertainment programming and are not allowed to produce editorials, commentary or analysis; engage in investigative reporting; or initiate political news coverage. However, they may produce local news, entertainment and religious programming.

Right to assemble
The right to peaceable assembly may also be restricted by military commanders if the gathering is shown to be detrimental to loyalty, discipline or morale. U.S. District Judge Donald Russell in 1969 heard such a case, in which several enlisted men were denied the right to hold an open and public meeting on a South Carolina Army base for a free discussion of the Vietnam War (see Dash v. Commanding General, 307 F.Supp. 849 (D.S.C. 1969).

Judge Russell decided that post commanders had the authority to deny servicemen under their command the right to hold public meetings on post. Although the plaintiffs in this case asserted the purpose of the meeting was to discuss peaceably the justification for the U.S. involvement in Vietnam, the judge found it clear that they sought to generate discontent with the Vietnam War among servicemen in hopes that the political decision to involve the nation in the war “might be influenced, if not reversed.” Russell cited evidence presented by the defendants that, during an impromptu open meeting discussing the issue, fights broke out, orders were disobeyed and disciplinary control was lost. In light of this, the court found the post commander’s decision reasonable.

Right to petition
In 1980 the U.S. Supreme Court ruled in two cases, Brown v. Glines and Navy v. Huff, involving servicemen’s right to petition members of Congress. Glinesinvolved a challenge to U.S. Air Force regulations requiring service members to obtain approval from their commanders before circulating petitions on Air Force bases. Albert Glines, a captain in the Air Force Reserves, drafted a petition to several members of Congress complaining about the Air Force’s grooming standards. Though he at first limited his solicitations outside of Travis Air Force Base in California, he eventually gave the petition to an Air Force sergeant during a training flight. The petition was then circulated on Anderson Air Force Base in Guam, where military authorities halted the unauthorized distribution.

The high court voted 5-3, with the majority noting that regulations “prevent commanders from interfering with the circulation of any materials other than those posing a clear danger to military loyalty, discipline, or morale” and that “such limited restrictions on speech within a military base do not violate the First Amendment.” The Court said that without the opportunity to review materials before they are dispersed throughout the base, a base commander could not avert possible disruptions among the troops. “The unrestricted circulation of collective petitions could imperil discipline, the Court said. “We find no legislative purpose that requires the military to assume this risk.”

Navy v. Huff, heard the same day as Glines, was a nearly identical case. Huffinvolved a group of Marines seeking approval to circulate a petition to members of Congress. In a per curiam ruling, the Court found that the base commander had the authority to curb the unrestricted circulation of petitions within the military base.

Military regulations allow individuals to write to and submit petitions directly to members of Congress without sending their communication through official channels. “Unrestricted circulation of collective petitions,” however, is another story — it’s not allowed unless given approval by the base commander.

Updated February 2010.

 

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