The Military, Freedom of Speech, and the Internet: Preserving Operational Security and Servicemembers' Right of Free Speech*

Article excerpt

I. Introduction

Traditionally, courts have viewed the military as a "specialized society" that entitles servicemembers to fewer free speech rights than civilians.1 Consequently, they have historically deferred to the military, permitting it to restrict the speech of servicemembers as it deems necessary to preserve order and discipline. Increased Internet access and online communication pose a new and great threat to the interests that the military attempts to protect through speech restrictions. The Internet allows servicemembers to reach millions of people anonymously and almost instantaneously, making it difficult to identify those speakers who violate a law or regulation. However, unlike restrictions that only affect servicemembers while they are on duty or in uniform,2 restrictions on servicemembers' speech on the Internet affects all communications: "The military code has always been applied to soldiers both on- and off-duty; military office has always been conceived to be a 24-houra-day job."3 Because the Internet is quickly becoming the dominant method of communication, restricting a servicemember's ability to communicate over the Internet means restricting a servicemember's ability to communicate at all.4

In the face of new threats to operational security posed by the Internet, the military has crafted new regulations on Internet use by servicemembers. Part II discusses these regulations and their impact on servicemembers' speech rights. Part III addresses courts', especially the Supreme Court's, deference to military restrictions on speech. Part IV analyzes three speech rights that are likely affected by the new regulations - the right to private communication, the right to criticize the government and military officials, and the right to anonymous speech. Finally, Part V proposes technical solutions that the military should implement to reduce the impact of the new regulations on the speech rights of servicemembers while still preserving operational security. Additionally, this Note argues that the Supreme Court should adopt a balancing test to determine when the military has impermissibly restricted these rights.

II. Military Internet Regulations

A. The Internet and Operational Security

Due to the increased servicemember access to communication tools made possible by the Internet, the military faces new challenges in preserving operational security (OPSEC). As one Army veteran noted, "[T]he Army has been flooded with young soldiers who have laptops, iPods, digital cameras, recorders, and that has put the fear of god into some of the generals."5 Additionally, the Internet and blogs are becoming an "evergreater source of open source information for adversaries."6 According to the Department of Defense (DOD), as a result of changes in the "global information environment," open-source material has become a significant source of intelligence for adversaries.7 This open-source information is inexpensive to collect and can be procured with very little risk.8 DOD estimates that the United States' adversaries can satisfy eighty percent of their intelligence needs through open sources.9 DOD has taken advantage of open-source intelligence as well, mining blogs for intelligence as a part of the War on Terror.10

Communication on the Internet threatens more than operational security. One of the leading online problems for the military is the posting of photos of servicemembers in uniform while making sexually offensive or racist remarks.11 Another major concern is the posting of criticisms of DOD online.12 Thus, military speech restrictions also "protect the integrity of the Armed Services."13 As a result, members of the military may be subject to disciplinary action for using offensive language or posting inappropriate images on social-networking sites such as MySpace or Facebook.14

B. Online-Posting Regulations

Despite the risks posed by the Internet and blogs, military blogs are an important source of information about military activities and a useful tool to help servicemembers stay in touch with family and friends while stationed overseas. …