Second Class Citizen Soldiers: A Proposal for Greater First Amendment Protections for America's Military Personnel

Article excerpt

"Are [the generals] free to speak? How come every time a general retires he starts trashing the president's war policy, but doesn't say a word until he retires? In other words, do we have to wait for retirement to hear what these guys think?"1

MSNBC's Hardball host Chris Matthews posed these questions to House Majority Leader John Boehner in a September 2006 discussion on whether the United States had sufficient troops on the ground in Iraq to control growing civil violence.2 Matthews' s query, raised as a challenge to the Bush administration' s willingness to incorporate military advice into Iraq military strategy, highlighted one of the effects of free speech restrictions on members of the military.

Regulations restricting the free speech of active duty military members, both inside and outside the Une of duty, are not new. Congress adopted the Uniform Code of Military Justice (UCMJ) in its modern form in 1950.3 The UCMJ governs all active duty military members, reservists, and, in certain circumstances, retired members.4 Several UCMJ articles either directly limit free speech or serve as a means to enforce organizational policies that limit free speech.5

1 Hardball with Chris Matthews (MSNBC television broadcast Sept. 27, 2006), transcript available at http://www.msnbc.msn.com/id/15045586.

2 Id.

3 Pub. L. No. 506, 64 Stat. 107 (1950) (codified as amended at 10 U.S.C.A. § 801-940 (West Supp. 2007); see also David A. Schlueter, Military Criminal Justice: Practice and Procedure 40 (6th ed. 2004).

4 MANUAL FOR COURTS -MARTIAL: UNITED STATES, Rule 202 (2005 ed.). Under the purview of "military," the UCMJ applies to members of the Army, Navy, Marines, Air Force, and the Coast Guard. The Coast Guard, under the Department of Homeland Security rather than the Department of Defense, is defined as a military service by law in 14 U.S.C.A. § 1 (West Supp. 2007).

5 Uniform Code of Military Justice [hereinafter UCMJ] art. 88, 10 U.S.C. § 888 (Supp. II 2002) ("Contempt toward officials"); UCMJ art. 92, 10 U.S.C. § 892 (2000) ("Failure to obey order or regulation"); UCMJ art. 133, 10 U.S.C. § 933 (2000) ("Conduct unbecoming an officer and a gentleman"); UCMJ art. 134, 10 U.S.C. § 934 (2000) ("General article," which includes service-discrediting conduct).

These restrictions traditionally go unnoticed during times of relative peace but receive more scrutiny during conflicts. The last flurry of challenges to restrictive military speech policies occurred during the Vietnam War.6 As the Iraq War grows increasingly unpopular, a repeat of Vietnam-era military free speech debate threatens. The subject flared when a group of highly distinguished retired generals criticized the Bush administration's handling ofthe conflict in 2003.7 Former ground commanders in Iraq and even active duty military members, speaking on the condition of anonymity, publicly challenged former Secretary of Defense Donald Rumsfeld's ability to successfully lead the military and questioned administration strategy.8

The debate over free speech in the military is also highlighted by public scrutiny of other military-specific First Amendment restrictions. Focus on the highly contentious "Don't Ask, Don't Tell" policy on homosexuality catapulted the name of Navy Petty Officer 1st Class Rhonda Davis into national headlines when she was discharged from the Navy for wearing her uniform to a same-sex marriage support rally and announcing on a radio interview that she was gay.9 Christian groups, especially evangelical Christians, are also pressuring the military to ease restrictions on the content of prayers given at military functions.10 These arguments are countered with concerns over the separation of church and state and the freedom not to worship.11

The military response to charges of First Amendment violations is consistent. Defenders argue that the UCMJ and military policies implemented under it exist "to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States. …