Free Speech Limitations in the Military

Free Speech Limitations in the Military

In America, our citizens are afforded a high degree of freedom when it comes to free speech. There are many areas of critical speech that are undoubtedly protected by the First Amendment. Some surprising examples include: openly criticizing public officials, allowing a congregation of hate groups (as long as the group does not seek to incite imminent lawless action), and even defaming a public official in the news (as long as it is not done with actual malice). Brandenburg v. Ohio, 395 U.S. 444 (1969); New York Times v. Sullivan, 376 U.S. 254 (1964). As a result, it is often rare for a court to apply deference to a legislative statute which broadly curtails civilian speech without a compelling interest.

With commissioned officers, there is a significant difference. The Uniform Code of Military Justice, Article 88, states in full:

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

10 U.S.C. § 888, Art. 88.

This statute differs drastically in respect to the amount of deference given to civilian speech. The reasoning, however, is readily understandable. With harmony comes efficiency, and with efficiency comes efficacy. While free speech is one of America's most valuable attributes that sets it apart from other countries, there is also the need for respect and obedience in a military setting. One disgruntled partisan officer can cause a severe discord by hastily expressing negative views on social media, or some other platform.

Free speech is a luxury that, unfortunately, many other countries are not able to experience to the degree that Americans are able. However, the limits on free speech are not boundless, and Article 88 of the UCMJ is a reminder that military security and free speech share a similar plateau.

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