William & Mary Bill of Rights Journal Volume 16 (2007-2008) Issue 1 Symposium: The Last Word? The Constitutional Implications of Presidential Article 18 Signing Statements October 2007 Second Class Citizen Soldiers: A Proposal for Greater First Amendment Protections for America's Military Personnel Emily Reuter Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Emily Reuter, Second Class Citizen Soldiers: A Proposal for Greater First Amendment Protections for America's Military Personnel, 16 Wm. & Mary Bill Rts. J. 315 (2007), https://scholarship.law.wm.edu/wmborj/vol16/iss1/18 Copyright c 2007 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj SECOND CLASS CITIZEN SOLDIERS: A PROPOSAL FOR GREATER FIRST AMENDMENT PROTECTIONS FOR AMERICA'S MILITARY PERSONNEL Emily Reuter* "Are [the generals] free to speak? How come every time a general retires he starts trashing the president's war policy, but doesn't say a word until he retires? In other words, do we have to wait for retirement to hear what these guys think?"' MSNBC's Hardball host Chris Matthews posed these questions to House Majority Leader John Boehner in a September 2006 discussion on whether the United States had sufficient troops on the ground in Iraq to control growing civil violence.2 Matthews's query, raised as a challenge to the Bush administration's willingness to incorporate military advice into Iraq military strategy, highlighted one of the effects of free speech restrictions on members of the military. Regulations restricting the free speech of active duty military members, both inside and outside the line of duty, are not new. Congress adopted the Uniform Code of Military Justice (UCMJ) in its modern form in 1950.3 The UCMJ governs all active duty military members, reservists, and, in certain circumstances, retired members.4 Several UCMJ articles either directly limit free speech or serve as a means to enforce organizational policies that limit free speech.5 * J.D., William & Mary Law School, 2008. I would like to thank Professor Judy Youngman, U.S. Coast Guard Academy, for her support, both with this article and through- out my career. Author is a Lieutenant in the U.S. Coast Guard. The views expressed herein are those of the author and are not to be construed as official or reflecting the views of the Commandant or of the U.S. Coast Guard. ' Hardball with Chris Matthews (MSNBC television broadcast Sept. 27, 2006), transcriptavailable at http://www.msnbc.msn.com/id/15045586. 2 id. 3 Pub. L. No. 506,64 Stat. 107 (1950) (codified as amended at 10 U.S.C.A. §§ 801-940 (West Supp. 2007); see also DAVID A. SCHLUETER, MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE 40 (6th ed. 2004). 4 MANUAL FOR COURTS-MARTIAL: UNITED STATES, Rule 202 (2005 ed.). Under the purview of "military," the UCMJ applies to members of the Army, Navy, Marines, Air Force, and the Coast Guard. The Coast Guard, under the Department of Homeland Security rather than the Department of Defense, is defined as a military service by law in 14 U.S.C.A. § 1 (West Supp. 2007). ' Uniform Code of Military Justice [hereinafter UCMJ] art. 88, 10 U.S.C. § 888 (Supp. II 2002) ("Contempt toward officials"); UCMJ art. 92, 10 U.S.C. § 892 (2000) ("Failure to obey order or regulation"); UCMJ art. 133, 10 U.S.C. § 933 (2000) ("Conduct unbecoming an officer and a gentleman"); UCMJ art. 134, 10 U.S.C. § 934 (2000) ("General article," which includes service-discrediting conduct). WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 16:315 These restrictions traditionally go unnoticed during times of relative peace but receive more scrutiny during conflicts. The last flurry of challenges to restrictive military speech policies occurred during the Vietnam War.6 As the Iraq War grows increasingly unpopular, a repeat of Vietnam-era military free speech debate threatens. The subject flared when a group of highly distinguished retired generals criticized the Bush administration's handling of the conflict in 2003.' Former ground commanders in Iraq and even active duty military members, speaking on the condition of anonymity, publicly challenged former Secretary of Defense Donald Rumsfeld's ability to successfully lead the military and questioned administration strategy.8 The debate over free speech in the military is also highlighted by public scrutiny of other military-specific First Amendment restrictions. Focus on the highly contentious "Don't Ask, Don't Tell" policy on homosexuality catapulted the name of Navy Petty Officer 1st Class Rhonda Davis into national headlines when she was discharged from the Navy for wearing her uniform to a same-sex marriage support rally and announcing on a radio interview that she was gay.9 Christian groups, especially evangelical Christians, are also pressuring the military to ease restrictions on the content of prayers given at military functions. ° These arguments are countered with concerns over the separation of church and state and the freedom not to worship."' The military response to charges of First Amendment violations is consistent. Defenders argue that the UCMJ and military policies implemented under it exist "to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and 6 John A. Carr, Free Speech in the Military Community: Striking a Balance Between PersonalRights and Military Necessity, 45 A.F. L. REv. 303, 304 (1998). 7 Jim Rutenberg, Ex-GeneralsDefend TheirBlunt Comments, N.Y. TIMES, Apr. 2,2003, at B 1. Retired generals continue to criticize war strategy, oftentimes in groups. Fred Kaplan, Challenging the Generals, N.Y. TIMES MAG., Aug. 26, 2007, at 34, 37. 8 David S. Cloud& Eric Schmitt, More RetiredGenerals CallforRumsfeld's Resignation, N.Y. TIMES, Apr. 14, 2006, at Al. 9 Davis was discharged after ten years of exemplary service. Vince Little, Ex-AFN Host IsDischargedfromNavyfor"Don't Ask, Don't Tell" Violation, STARS & STRIPES, July 31,2006, availableat http://www.estripes.com/article.asp?section= 104&article=38075&archive=true. 10 Alan Cooperman, Fasting ChaplainDeclares Victory, WASH. POST, Jan. 10, 2006, at A 13 (describing the efforts of evangelical naval chaplain Lieutenant Gordon Klingenschmitt to get the Bush administration to sign an executive order allowing military chaplains to pray "in the name of Jesus"). " Press Release, Americans United for Separation of Church and State, Americans United Warns Military Officials Not to Promote Graham Evangelistic Rally (Aug. 8, 2005), available at http://www.au.org/site/PageServer?pagename=press (follow "2005" press archive hyperlink, then follow "August" hyperlink, then follow hyperlink with article's name) (urging the military not to promote a seminar hosted by the Billy Graham Evangelistic Association on "Serving God and Country" because it favors one religion over another and is an unconstitutional governmental promotion of religion). 20071 SECOND CLASS CrrIZEN SOLDIERS thereby to strengthen the national security of the United States." 12 When service- members seek relief in the federal court system, the courts overwhelmingly defer to the military's judgment.' 3 The Supreme Court labeled the military a special community.' 4 The judiciary is reluctant to determine whether a military policy violates the First Amendment because the issue ultimately requires an analysis of whether the policy itself is so vital to military operations that it justifies the restraint on First Amendment freedoms-something the courts consider themselves unqualified to do. 5 Courts are quick to point out that the Constitution specifically gives control of the military to the President as the Commander in Chief' 6 and grants Congress oversight responsibility for maintenance and regulation of the military.'7 As a result, rather than examine the claims under the traditional First Amendment framework, the courts essentially analyze First Amendment complaints made against the military with a rational basis test and uphold the military regulations." This Note argues that although deference may be constitutionally given to the military by the courts, Congress and military leaders have an obligation to protect the First Amendment rights of servicemembers. Deference is not the equivalent of a blank check for the military to make policies that suppress First Amendment rights-specifically that of free speech-for convenient organizational control. Military judges, who have the specialized military knowledge that federal courts lack, should perform traditional First Amendment analysis within the military justice context when faced with cases involving free speech. Federal courts, though they may not be competent to review the substantive merits of a military court's decision, should review appealed cases to ensure the use of appropriate legal analysis. Moreover, as the defender of a free democratic society, the military should place more emphasis on protecting the First Amendment rights of its members. The military can provide such protection by carefully scrutinizing policies that restrict First Amendment freedoms and by making the punishment for violating a policy that restricts what is normally a First Amendment freedom an administrative rather than criminal consequence under the UCMJ. Part I of this Note provides a brief history of the purpose and creation of the modem UCMJ, a discussion of the UCMJ articles used to limit speech, examples of 12 MANUAL FOR COURTS-MARTIAL: UNITED STATES, supra note 4, Part 1(3) (describing the nature and purpose of military law). 13 See, e.g., Kalyani Robbins, Framers' Intent and Military Power: Has Supreme Court Deference to the Military Gone Too Far?, 78 OR. L. REV. 767, 775 (1999) (reciting a paragraph's worth of Constitutional challenges made against military policy where the Supreme Court gave deference to the military's judgment).