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Free Speech In Armed Forces
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Free speech in armed forces
Freedom of speech tends to be a guaranteed right for every citizen in United States. However, the members of the military tend to have content-based restrictions on how this right should be exercised. According to article 88 of UCMJ, 10 U.S.C 888, it makes it a crime for commissioned military officer to use contemptuous words against the congress and president among others (Policinski 2012). The Department of Defence tends to have expanded this rule so as to include all the military enlisted personnel. The Freedom of speech clause as seen in the First Amendment has been posing unique challenges towards the military community. The active duty of military members is normally subjected to the Uniform Code of military Justice that limits their conduct and also certain forms of speech. In 1974, the US Supreme Court wrote that while military members are not excluded from protection that is offered in the first Amendment, the varying character in the military community and the military mission need different application of the protections.
Such a dilemma has plagued the nation for the duration of modern warfare. A sort of issue that aids in the propagating of communicative ineptitude whereby diminishing the bond between nation and those tasked with its defense. The United States Supreme Court has issued mandate that members of the armed forces, to an extensive degree, possess the freedom of speech of their civilian counter-parts (Policinski 2012). However, insufficient profiling leads to mass conjecture in the wake of ambiguity. This circumstance affects the emotional well-being of armed forces members and their faith in the government. A scenario alluding to contingencies predisposed to occur, yielding political and social ramifications alike. The rights of those in service are of the much significance and should never be subject to confusion.
When arguing about freedom of speech in the military, the Supreme Court and the military court argued that the unique nature of the military as being a separate community necessitated the different application of the principles of First Amendment. Courts continue to exhibit deference on the judgment of military commanders regarding the threat to military interest that is posed by certain speeches (Carr 1998). When the changes of free speech of military personnel are reviewed under the traditional First Amendment doctrine, the courts find that restrictions are permissible because of the interest of the military are not related to suppression of free expression. This means that the military can impose restriction on speech of military personnel if the speech poses a threat to morale, discipline, or civilian supremacy. This paper will aim at explaining the issue of free speech in the army and why there should, not be free speech in armed forces.
Regulation of speech in the military
When courts are confronted with the constitutional challenges to the military regulation, they show a substantial amount of reverence to the government authorities on two reasons. The first reason refers to the responsibility that is imposed by the constitution on executive and legislative branches to administer the military. The second reason is the idea of the military as being a separate community. The rationale for a separate community is based on the unique mission of the military, critical importance of subordination and obedience, and complimentary development of military custom (Morris 1982). Based on these characteristics, when courts are confronted with issues of free speech in the military, they refuse to apply the free speech protection that is offered to civilians and government employees. Thus, courts prefer to defer on the judgment of the military on the disruptive effect of the speech in question.
A major problem in the difference of opinion in this area is the ill-defined character of the decisions of the judicial. The current approach on the right to freedom of speech of a soldier has developed alongside with the civilian’s rights approach (Werhan 2004). Even though there are no decisions by the Supreme Court directly on point, there are opinions of individual members of Supreme Court claiming that servicemen should retain their constitutional rights. The problems that currently exist is determining up to what extent the rights apply.
The judicial body in this area has been the Court of military appeals. In a decision made in the case of United States v. Howe, the court has stated that the right to constitution protection of the freedom of speech applies to the soldier (Jeremy 2013). A major problem has been in determining the procedure that is used by the court in determining when the right to speech freedom is infringed. In past decisions about freedom of speech, the court has touched on censorship, commander’s orders to prohibit speech to certain individuals, and use of contemptuous language towards the president. All of these decisions have used the test of balancing the military interests against the rights of the soldier to freedom of speech (Morris 1982). First, when considering if an action violates the First Amendment protection of speech besides looking at the action, the Court of Military Appeals should weigh the element of military necessity. Military necessity is the argument that because military must concentrate on fighting, it should not concern itself with the protection of free speech.
The two concepts that underlie the issue of military free speech are service connection and military necessity. The concept of military necessity claims that the military is a unique society that has unique characteristics and demands. The characteristics include uniformity, discipline, and national security. Therefore, the military should be allowed to operate based on its rules to the maximum degree possible. Service connection refers to the rule that the military cannot prosecute the service members unless the conduct that is in question is service-connected (Werhan 2004). This means that unless the conduct implicates the interest of the military, then the member can be prosecuted. This is the concept that limits military necessity.
Restricted application of free speech
Both critics and supporters of the issue of free speech rights for military exist. Among people claiming direct constitutional protection of military, some argue that the military cannot have unlimited application of constitutional rights. Their argument is based on the nature of the military mission. The writers argue that some of the areas of military life justify less freedom of speech for the servicemen. These limitations are allowed in case of matters of national security, contemptuous language towards the governmental leaders and disrespect towards superiors (Jeremy 2013). It is also allowed in case there is a need of the military to present solid front to the public, need for discipline within armed forces, and belief in civilian domination of military. People favoring restraints on the rights of army to free speech than civilians, maintain that the restraint is allowed when the rights of the soldiers are balanced against need for strong and disciplined, armed forces.
Some people are arguing that the freedom of speech should extend to the military with no limitation. The proponents claim that either the Bill of Rights applies and all rights are applicable or that it does not apply, and no constitutional rights are available for soldiers. Therefore, when the conclusion arrives that the Bill of Rights applies to soldiers, then all rights that are included there also apply in fully (Morris 1982).
The different character of the armed forces and the military mission is the reason as to why military freedom of speech is limited. The mission of the military is based on the fundamental need for obedience and the need for imposition of discipline. In the armed forces, some restrictions tend to exist for the purpose that they have no counterpart in civilian community. Contemptuous and disrespectful speech and even advocacy of violent change are normally tolerant in the civilian community (Policinski 2012). This is because it does not affect the Government capacity to discharge its responsibilities unless it has been directed to incite imminent lawless action or may produce such actions.
However, everything is different in the military life because some considerations have to be weighed. The armed forces normally depend on the command structure that should commit men to combat, not just hazarding their lives, but also involving the security of the nation. The speech that has not protected in civil, population may however undermine the effectiveness of command response (Jeremy 2013).
Reason against Free Speech in Armed forces
There are two arguments that justify the restriction of free speech in armed forces. The first argument tends to focus on the threat to good order and discipline. According to this argument, the speech activities tend to be effective accomplishment of military mission. The second argument is about the maintenance of proper relationship between military and civilian leaders of the nation. The need for protecting the military interest tends to justify the argument of restricting free speech in armed forces.
Threat to good order, morale, and discipline
The reason as to why free speech should not be allowed to armed forces is because of the threat to good order, morale, and discipline that is posed by the dissenting voices in the ranks. The military normally fulfill a unique purpose and mission. It is a requirement that the armed forces should be prepared every time to defend the interests of the nation anywhere in the world (Policinski 2012). The military tend to be entrusted with vast array of technologies and weapon systems that are capable of destroying not only the country, but human civilization. Because of this responsibility, it tends to distinguish the military personnel from other civilian paramilitary officers such as prison guards and police.
The Supreme Court tends to have acknowledged the special relationship between service member and the military. It is argued that when an individual changes his status from being a civilian to military, the duties, living conditions, assignments, grooming standards, and privacy are all governed by the military necessity, but not personal choice. The military necessity normally requires that a high training level and unit readiness should be maintained all times because crisis may erupt at any time. Thus, the unique mission and responsibilities of the military underlying separate community rationale demands a different application of First Amendment principles than those applying to other civilians. In the case of Brown v. Glines, the Supreme Court noted that discipline, loyalty, and morale are essential attributes of all military personnel (Morris 1982). The court also claimed that the military personnel can be called deal with any natural disaster or civil disorder irrespective of where they have been assigned. Thus, the military member should sacrifice some liberties that he is called upon to protect.
The mission of the military tends to have prompted substantial deviation from free speech protection afforded civilians. As explained in United States v. Priest, the standard of military for illegal advocacy has continued to be a present danger test. From the case, the commander concluded that the speech will cause some harm to the unit even though the harm has not materialized. As a military organization occupies a unique role, most people have questioned the application of the court of different standards of First Amendment to the military community. First, most servicemen tend to pursue careers a bit different from and not more dangerous and strenuous than numerous civilian pursuits (Policinski 2012). As the military privatizes on positions that were formally occupied by the uniformed personnel, the rationale that supports different standard of non-combat positions tend to have faced questioning. Second, it is argued that in an era of the all-volunteer force, as armed services continue to seek induced educated, talented, and upwards youths to select a military career, reliance on horn, duty, and country has diminished. There is a different type of military that tend to be emerging that is based on the model that is more occupation-oriented, democratic, managerial, and personalistic.
Some addition to the argument concerning the need for exclusion of all uniformed personnel from the civilian free speech protection, it is noted that not all dissenting speech is detrimental to armed forces. It is argued that dissenting speech can be supportive of military effectiveness through uncovering error and inefficiency (Carr 1998). The armed forces have provided various channels where the members can use to voice their concerns. The personnel may air their grievances through a chain-of-command and can initiate an inspector general complaint. The personnel can also communicate with the members of the congress in an unofficial capacity without being afraid of retaliation. There is no need for free speech in armed forces because the military organization has developed a host of various channels for reporting any perceived problem to appropriate authorities.
It is argued that if the speech freedom is offered to the armed forces, the process can pose two local threats to the military. The first problem is the disturbance that is caused by the debate of the issue itself. While it may appear appropriate and useful for many to debate about the military policy under construction, one the decision is made and course of action initiated, the continued discussion about free speech may pose threat to discipline and obedience that is extremely vital in the military mission. The CAAF states that the primary function of a military organization is to execute orders (Werhan 2004). It is not its function to debate about the wisdom of decisions that the constitution and entrusted to judicial and legislative branches of the government and also to the Commander in Chief. A second threat that will be posed in case the free speech debate starts is that individual members are likely to conclude that the organization’s policy is flawed.
Relationship between civilian and military leaders
Another argument as to why armed forces should not be allowed to have free speech is in order to maintain proper relationship between the civilian and military leaders. The rationale that support the restriction on speech activities of the armed forces personnel addresses the risk to civilian control of the armed forces that the rebel may create. The civilian leaders of military that have been both appointed and elected may be threatened by the vocalized dissent of high-ranking officials and involvement of military personnel in the partisan political causes. The threat posed to the civilian leadership by the military varies from the seizure of power by military coup to refusal of obeying orders. The civilian leaders who bear ultimate responsibility require to be protected from irresponsible abuse by their subordinates. This is the rationale that is almost related to the maintenance of discipline and good order.
Two possible threats to civilian control of military exist that is posed b the speech of armed forces. The first threat originates from the personnel who voice disagreement with official policies of civilian leaders (Carr 1998). It is unquestionable that a troop’s commander who is preparing to deploy should not be allowed to question the wisdom of the decision. The next threat originates from unauthorized statements of military personnel that can be interpreted as being the official voice of the service.
The harm resulting from the unauthorized statement may be felt internationally and domestically because it can cause the germ of truth from which meretricious propaganda claims of warmongering may be cultivated. The major challenge is defining the proper role for military soldiers and leaders who do not agree with a certain political decision (Sunstein 1995). In this case, the question is not based on if the military members should obey the directive because he must, but if he should be allowed to voice disagreement with the policy. It is normally argued that allowing the armed forces personnel to voice their disagreement in the public can promote a proper relation among military, its civilian leadership, and people. It also helps in bringing to the public opinions and facts that may go unreported.
There are strict limitations that have been placed on the ability of the government to restrict the type of civilian speech. The military commanders tend to have the authority ex-ante of protecting the interests of the military from civilian threats through restricting the access to the base (Sunstein 1995). It can also protect military interest through regulating speech of those on the base in a manner that is reasonable and viewpoint-neutral. The commander can also issue an exclusion order ex-post to an individual who is posing a threat to good order and discipline even if the order is interfering with or based on the First Amendment Rights. The ability of the base commander to restrict the speech of the civilian and protect the interest of the military is normally determined by whether the military owns the land where the civilian is standing.
When arguing why the armed forces are restricted from free speech, it is necessary to understand that the regulations of the military is to protect the maintenance of discipline and good order. The regulations also aim at protecting the reputation of armed forces in the public eye and the politically-disinterested force. For instance, a group of soldiers who are planning an on-base political protect can pose a threat to discipline and good order whether the discussion takes place in the dormitory, squadron room or off-base coffee shop. Therefore, because of the significance of unit cohesion to readiness and the discipline of the military, the military should ensure that it restricts this type of activity (Sunstein 1995). Many commentators view the free speech restrictions as being oppressive arguing that personal autonomy concerns, and need for free flow of information need generous free speech protections. However, the president and the congress have established various official channels that guarantee and also protect the military personnel to the right way of airing their grievances.
The use of the standard provided in First amendment in the issue of the military community has continued to remain of great importance and also divisive endeavor. Courts have also realized that the constitution has placed the primary responsibility for maintaining and regulating them military in executive and legislative branches. Due to the unique nature of the mission of the military, the court has recognized that most of the traditional First Amendment values should be conditioned through countervailing the needs of the military. The military commanders have been allowed to restrict and also punish the speech of soldiers when the discipline and good conduct of the service have been threatened.
The judicial admiration to the military and discretion possessed by commander can be disturbing to many. However, it is essential for continued maintenance of the armed forces as being an efficient and effective fighting force. The restriction to freedom of speech among the members of the armed forces tends to be consistent with the special purpose of the military. This report has evaluated the issue of free speech in the military and also explained why free speech should not be allowed. The major reason the free speech should not be allowed is because of the threat to good order, morale, and discipline that is posed by the dissenting voices in the ranks. Free speech should also not be allowed is armed forces so as to maintain proper relationship between the civilian and military leaders.
Carr, J (1998). Free speech in the military community Air Force law review 45, 303
Jeremy, W (2013). Political speech, the military, and the age of viral communication Air Force law review 69 91-153
Morris, L (1982). Free speech in the military The Marquette law review 65
Policinski, G (2012). In the military, speech can be punishable conduct retrieved from http://www.firstamendmentcenter.org/in-the-military-speech-can-be-punishable-conduct
Sunstein, C (1995). Democracy and the problem of free speech New York, Simon & Schuster
Werhan, K (2004). Freedom of speech USA, Greenwood publishing Group, Inc
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