Why is it that those who risk their lives to defend our
right to free speech are not entitled to the same extent of free speech as
civilians? This is the question I find myself asking after reading the section
titled “First Amendment Rights in the Military” from Chapter 12 in our
textbook. As stated in the first paragraph of the section by Chief Justice
Rehnquist, “…the rights of armed forces personnel ‘must perforce be conditioned
to meet certain overriding demands of disciple and duty.’” (Tedford and Herbeck
347). The text goes on to add that the Uniform Code of Military Justice (UCMJ)
is the legal base that enforces the “overriding demands of discipline and duty”
required of military forces. Between the UCMJ and the directives of the
Department of Defense, the First Amendment rights of active members of the
military are greatly diminished (347). The reason for this exclusion to certain
rights of free speech, as declared by Justice Rehnquist in Parker v. Levy, is that “…the different character of the military
community and of the military mission requires a different application of those
[First Amendment] protections.” (348).
The
reason outlined above is substantial one as to why limited Freedom of
Expression is required for members of the military. As noted earlier in the
course, one of the few reasons that the U.S. government can restrict free
speech is if doing so serves a compelling governmental interest. In this
situation, the compelling interest is maintaining national security and the
integrity of the United States armed forces. As this is a major concern of the
government, there is indeed a compelling interest that warrants restrictions on
Freedom of Speech allotted to military personnel. However, I believe that some
of the restrictions currently in place are too excessive in comparison with the
end goal. One that particularly troubles me is the prior permission regulation
on distributing any written or printed material other than official government
documents. As described in the sub-section “Petitioning for Redress of
Grievances,” members of the Air Force are required to seek permission from
their commander before they can distribute any personal/unofficial papers. The
rationale behind this rule is that the government doesn’t want soldiers handing
out materials that lowers morale or promotes dissent among the ranks (349).
Once again, there is a valid concern behind the regulation, but this is an
instant where I feel that the restraint oversteps the concern.
For one,
members of the military are highly trained and disciplined individuals. As
stated in a document published by the Department of Veteran Affairs, an
individual learns to be disciplined and make sound and timely decisions while
in military service. Additionally, they undergo personal and interpersonal
growth, which can include enhanced maturity (personal and interpersonal),
strengthening of resiliency, improved coping skills, and understanding the
importance of cooperation (“Positive Outcomes of Military Service”). To me, all
of this says that soldiers are tough individuals that don’t need to be shielded
from harsh realities. Therefore, I find it difficult to believe that a pamphlet
alone could dishearten a soldier enough to seriously diminish their fighting
ability, or incite infighting among the ranks.
Hypothetically, let’s say that a
soldier was approached by one of his comrades and asked to sign a petition to show
his support for a cause while on the base. This kind of activity is forbidden,
so the soldier would most likely inform his comrade that he was breaking the
rules. If the other soldier refused to heed this warning, what would this soldier
do? Would he get aggressive to stop the rule-breaker? If the soldier has been
well trained to live up to the high military standard, then I almost certain
that they would not stoop to violence. Rather, they would probably inform their
supervising officer of the situation and let them handle it from there.
On another note, Tedford and
Herbeck do mention that soldiers have the right to contact members of Congress
individually (349). However, I believe that this is not always enough. If one
soldier brings a grievance forward, Congress might write it off. However, if
the members of Congress were delivered a petition with the signature of dozens
of soldiers, then they would have to acknowledge that there is a problem and
devise a solution. Furthermore, what if the grievance involves the unit’s
commander? How can a petition be formed to bring the commander’s faults forward
when it must be approved by the commander before being circulated? For these
reasons, I believe that the right to peacefully and civilly petition should be
guaranteed to members of the military.
In summary, I understand the motive
behind severely restricting the free speech rights for members of the military.
In several instances, I agree that maintaining National Security and the
integrity of our armed forces is a vital interest that warrants the reduction
of the individual rights of soldiers. However, I also believe that we can’t
forget that members of the military are still citizens; citizens that are
entitled to at least some of their constitutional rights. Furthermore, I think
that the government needs to reevaluate some of their uses of prior restraint
within the military. After all, does prior restraint need to be so heavily
relied upon when the military is already extremely disciplined? Additionally,
isn’t prior restraint only to be used as a last resort? What are your thoughts
on the matter?
Sources:
“Positive Outcomes of Military Service.” Mental Health Services, https://www.mentalhealth.va.gov/communityproviders/docs/changes.pdf
Accessed 9 Nov. 2017.
Tedford, Thomas L., and Dale A. Herbeck. Freedom of Speech in the Unites States.
8th ed. Strata Publishing, INC., 2017.
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