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

By Cornyn, Danley K. | Texas Law Review, December 2008 | Go to article overview
Save to active project

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

Cornyn, Danley K., Texas Law Review

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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

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


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?