Military expression
Encyclopedia
Military expression is an area of military law
pertaining to the United States military that relates to the free speech rights of its service members.
, the U.S. Supreme Court has affirmed the notion that service members have a reduced level of free speech. While the Court acknowledged that service members do have First Amendment rights, these rights are limited.
"They do, in fact, have the same first amendment rights as their civilian brothers. They are, however, not absolute...The difference is that the military has peculiar needs and interests apart from those of the civilian community it serves, and they preclude the exercise of the right of free speech on as broad a basis as is the practice in the civilian community. No officer or man in the armed forces has a right, be it constitutional, statutory or otherwise, to publish any information (or make any statement) which will imperil his unit or its cause".
This justification offered new precedent to the military expression limitations and differs from those stated in the Articles of War in 1775 where Congress feared a military coup In fact, the Uniformed Code of Military Justice UCMJ specifically includes criminal charges against a service member for various UCMJ offenses that have been levied for verbal and written statements or public displays of political speech.
) who was photographed by the Washington Post wearing a partial uniform during an anti-war demonstration in Washington, DC. The individual faced a military tribunal for his participation in this demonstration, as well as for a politically charged email he sent to a Marine officer. However, in this case, the service member managed to avoid the other than honorable discharge being sought by the military due to the First Amendment arguments posed on his behalf. That case, which was argued by attorney Mike Lebowitz
in representation of anti-war and political activist Adam Kokesh
, is regarded as the first military expression case of its kind to result generally favorably for the service member.
Political speech, to include being active in a political party, also has become an issue as the Internet and email permits easier participation despite rules against such activity.
legal field since 2001. Besides numerous media references relating to specific cases, the term was used at military whistleblower committee hearings with members of the United States House of Representatives and Senate on May 14, 2008. Transcripts of the hearings show that attorney Mike Lebowitz
was identified as testifying as a legal expert in "military expression." That hearing also included references by US Rep. Sheila Jackson Lee
(D-TX) who also referred to the area of law as "military expression."
Military law
Military justice is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use...
pertaining to the United States military that relates to the free speech rights of its service members.
Limitations on military expression
While the civilian population of the United States is afforded the right to free expression under the First AmendmentFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, the U.S. Supreme Court has affirmed the notion that service members have a reduced level of free speech. While the Court acknowledged that service members do have First Amendment rights, these rights are limited.
"They do, in fact, have the same first amendment rights as their civilian brothers. They are, however, not absolute...The difference is that the military has peculiar needs and interests apart from those of the civilian community it serves, and they preclude the exercise of the right of free speech on as broad a basis as is the practice in the civilian community. No officer or man in the armed forces has a right, be it constitutional, statutory or otherwise, to publish any information (or make any statement) which will imperil his unit or its cause".
This justification offered new precedent to the military expression limitations and differs from those stated in the Articles of War in 1775 where Congress feared a military coup In fact, the Uniformed Code of Military Justice UCMJ specifically includes criminal charges against a service member for various UCMJ offenses that have been levied for verbal and written statements or public displays of political speech.
Vietnam era
During the Vietnam War an Army officer joined a protest and stated "End (President Lyndon) Johnson's fascist aggression in Vietnam." The officer was convicted for his participation and verbal statement.Since September 11, 2001
With the advent of the Iraq War in 2003, the issue of military expression was again thrust into the public eye as a relatively small amount of service members and veterans began demonstrating and speaking out. One case revolved around a former Marine (still under contract with the IRRIndividual Ready Reserve
The Individual Ready Reserve is a category of the Ready Reserve of the Reserve Component of the Armed Forces of the United States composed of former active duty or reserve military personnel, and is authorized under...
) who was photographed by the Washington Post wearing a partial uniform during an anti-war demonstration in Washington, DC. The individual faced a military tribunal for his participation in this demonstration, as well as for a politically charged email he sent to a Marine officer. However, in this case, the service member managed to avoid the other than honorable discharge being sought by the military due to the First Amendment arguments posed on his behalf. That case, which was argued by attorney Mike Lebowitz
Mike Lebowitz
Michael J. Lebowitz is a Washington, D.C., attorney and expert in the field of military law and Military Expression. Along with being an advocate for veterans' issues, he is known to be at the forefront of First Amendment issues pertaining to the military...
in representation of anti-war and political activist Adam Kokesh
Adam Kokesh
Adam Charles Kokesh is an American activist and talk radio host. Kokesh was a Corporal in the United States Marine Corps Reserve and is a veteran of the Iraq War. He is an outspoken opponent of the U.S. military intervention in Iraq and has received media attention related to anti-war protest...
, is regarded as the first military expression case of its kind to result generally favorably for the service member.
Effects of technology
Despite this change in direction in regard to military expression issues, numerous instances of military free speech conflicts continue to be reported. Much of this relates to easy access to the Internet, blogs, and digital cameras available for use by service members while deployed to a combat zone. This has prompted the military to takes steps at limiting the use of blogs by requiring the consent of individual commanders. Many soldiers report being confused by military anti-protest rules that "seem haphazard and subjective."Political speech, to include being active in a political party, also has become an issue as the Internet and email permits easier participation despite rules against such activity.
"Military Expression"
While "military free speech" was the term used during the Vietnam era, "military expression" has become a niche area of military lawMilitary law
Military justice is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use...
legal field since 2001. Besides numerous media references relating to specific cases, the term was used at military whistleblower committee hearings with members of the United States House of Representatives and Senate on May 14, 2008. Transcripts of the hearings show that attorney Mike Lebowitz
Mike Lebowitz
Michael J. Lebowitz is a Washington, D.C., attorney and expert in the field of military law and Military Expression. Along with being an advocate for veterans' issues, he is known to be at the forefront of First Amendment issues pertaining to the military...
was identified as testifying as a legal expert in "military expression." That hearing also included references by US Rep. Sheila Jackson Lee
Sheila Jackson Lee
Sheila Jackson Lee is the U.S. Representative for , serving since 1995. The district includes most of inner-city Houston. She is a member of the Democratic Party.-Early life and education:...
(D-TX) who also referred to the area of law as "military expression."
See also
- First AmendmentFirst Amendment to the United States ConstitutionThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...