Freedom of Speech - An Examination of the Civilian Test for Constitutionality and Its Application to the Militars

• Author: BY Slaior Jerome X. Leuis II
• Pages: 02

The aulhor herins b) dmeuostng rhe hislor) oi freedom oi npeech ond the firrr omendmenl Turning lo stud) the leg1 usof b) the Supreme Court an determining lhe breadlh 01 the firs/ amendment. he conrludes rho1 rho Court "balances the tnreie61 'mrolred tn eoch core low! rhe proper reobll. He concludes by suggegtJng lhal the snme 1es1 shoold be used zn cades I ~ L O ~ L ~ ~ R

militor>

personnel and freedom oispeech.

1. INTRODL'CTION

In 1776. Thomas Pame observed that those were the time8 that try men's souls. Those were the times of oppressLon by a tyrannical monarch. by a distant Parliament. and by what had become an all-too-near army of occupation. Those were the tunes in uhich Englrshmen of oubstance and standing ~n North America went to London in supDlicatmn to petition unsuccessfully for the redress ofthe won89 vlsrtcd upon them Those were the times in which these same men. in despiration. pledged their lives. their liberty. and their sacred honor to declare their independence and give birth to a new nation But ultmste victory on the field of battle was not destined to be their most difficult task Still remaining for these men of courage and mion was the uork offorglng a system of representative government which would guarantee to it6 citizens fundamental freedom while at the same time being malleable and of sufficient strength to withstand the shocksand 8tresses imposed by domestic tumult and world cetaclyw. The United States. wrth ~ t s

Constitution. stands today as a living shrine to their genius

-

'This article was adapted from a thesis presented to The Judge Advocate General's School, U.S. Army. Charlottesville. Virginia, while tha author was a member of the Fifteenth Advanced Course. The opinions and cond~sion~ prosented herein *re those of the author and do not neces88rily represent the views of The Judge Advocate General's School or any other governmental agency.

**JAGC, U.S. Army: Judge Advocate. NATOISHAPE Support Grovp (U.S.), Belgium. B.S., 1860, United States Military Academy; LL.6.. 1965, Georgetown Uniueraity; admitted to practice before the United States District Court for the District of Columbia and the United Stater Court of Military Agpenla.

'THE CaMPLmE WRITINGS ov TllOMA8 PMNE 50 (P. Fmer ed. 1845).

But if those days of 200 years past tried men's souls, if during those times men were adrift upon the seas of uncertainty and doubt as to their future course, then these present times equally try patriots' souls. While the infant years of our Republic were sheltered by the vast expanses of the seas which served as barriers to corrupting ideologies and foreign interventionists, the ever accelerating advance of the sciences. particularly those of communications and weaponry. has exposed this Nation to the noxious philosophies as well as to the wholesome, to the grim spectre of nearly instant atomic desolation as well as to the miracles wrought by the peaceful uses of the atom. Same among us would mark the beginning of this century as the dawn of a new epoch, anepoch which holds challenges and rewards, threats and horrors undreamed of by OUT forefathers, There are also those among uswho regard our Constitution as outmoded. overtaken by the events of recent history, unable to prevent this Nation from founderine on the social and political rocks and shoals that are presently hidden from our view. Such people point with incredulity and reprobation at the spectacle of extending the Bill of Rights to the confessed felon or even to those who would with violence overthrow our form of government Rut yet it is from these things that America achieves its greatness and its moral strength. Another more difficult question would be to ask whether the delicate system of checks and balances between the legislature, the executive, and the courts envisioned by the framers of the Constitution can function where the arrival of a state of war is heralded by a rain of atomic devastation: or where, by gradual, almost imperceptable stages, our Nation finds itself spilling the lifeblood of its youth in the defense of a distant besieged ally. In neither case would there be a formal declaration of war after due deliberation by the legislature. Likewise. in the conduct of foreign relations the executive agreement, unratified by the legislature and often unknown to it, has replaced the formal treaty. In recent years these questions have troubled the minds of constitutional scholars and others who look far regularity and orderliness in the conduct of our Nation's affairs.

On the other hand, what of the uproar generated by the multi-hued domestic bohemian, the pseudo-intellectual. and the dissenter who can be heard today on nearly any issue that divides men's minds? It is in this atmosphere that our youth are reared and from this environment that they enter into the military service. It is. therefore. not unexpected that there is today occasionally heard a dissenting voice raised from militart ranks. Can they speak with the same constitutional safeguards as their

FREE SPEECH

civilian friends? The answer is ascertainable only by inquiring into the freedom of speech accorded those in civilian society and comparing the application of the first amendment to those in both civilian society and military service.

11. THE FRAMERS' INTENT

Out of the lawyers' and jurists' penchant for "retrospective s-etry"2 and their general aversion to the totally novel has grown the practice of delving deep into the past to rediscover long established principles which are consonant with contemporary thought. Accordingly, it isunderstandable that those wholearned their childhood lessons in American history should view ourfounding fathers as victims of the severest suppression of the freedom of expression. Representatives of the Crown in North America were not undeservedly cast in the role of the oppressors of those who sought ta question the acts of King George. his Council. the Parliament. or their agents. This is but a fragment of the diorama. What of the popularly elected assembliesin the colonies? Were they possessed of the tolerance of dissent that was so lacking in the common-law courts of the Crown? Reprettably. they were not. Borrowing from the manner of that mother of all legislatures. the Parliament.3 the Virginia House of Burgesses in 1620 com. menced the practice of punishing any criticism of the government, its procedures or its members, be it true or false.' Almost without exception. the other assemblies followed suit. The mold cast, prosecutions under the theory of criminal or seditious libel continued before state legislatures and courts without substantial abatement. at least until the adoption of the first amendment

-Roehe, American Liberty: A71 Erominafi~n

01 the "Tmdifion" ol Flee-dom. in ASPECT8 OF LIBmTY 130 i M . Konvitz & C. Rorriter ed. 19581. Perham it II alia B reflection af the le~aldoetrine of stare decrsw'See L. LE-, LEGACY UP SUPPRESSIOF

16 (1960)..See JUURNlLa OF THE HODbE OF BUROE89ES OF VIRDIXIIA: 1619-1776 wi. 1619-1659, p. 16 iM\leIllwln ed 1816)

'See generally L. Len', LEGACY OF SUPPREBslow 18-176 (lBSO), for an outstanding dinmidan a i the aolaniai background to the first amendment's frer-dom of expression clause

'Sa? A. HAMILTOX. THE FEDERALIST

No. 84 i1945); 4 J. ELLIOT, THE

DEBATEBor THE SEILUL STATE

Coinx~mmox THE ADOPWOX

CoNSTlrUTlOB 436, 463 (Zd rev. ed. 1941)

OF THE FEDERAE

more than a dangerous anti-Federalist tactic: To others. it was a neceseary protection against the evils of prior restraints which protection had. alter arduous battle. become a part of English constitutional Iaw.8 But whether the first amendment was origi. nally intended to do more than this, whether its protection was to have been absolute. is exceedingly doubtful.abridging the freedom of speech. or of the press ."9No other single clause of the Constitution has evoked such a torrent of scholarly (and some not so scholarly) comtemplation. On their face. it is astonishing that those unequi-vocal words could be subject to more than one interpretation. Yet there are scores. And how did the Nation's leaders of that era regard it? We know that many of the state constitutions of that time had similar guarantees,l@ but the states conducted trials for those who directed critical comment against either the state or the Federal Government." We know also that federal courts very quickly discovered a body ai federal criminal common law12 that included the law ai seditious libel.lJ Finally. we know of the Federal Sedition Act of 179W which silenced criticisms of the fledgling Federal Government, despite the fact that it incorpo. rated the requirements of the English For's Libel Act15 that the seditious nature of the expression be determined by a jury of peers along with the general issue of guilt or innocence. This was the extent of the protection afforded citizens in the years immediately

"Congress shall make no law

.See H. FORD, ESSAYS ON THE CONSTITUTION or TBE US IT^ STATES 289

'See F. SIPBERT, FREiOOM OF THE PRiiss Is ENDUND, 1476-1776, ehs 2.3,

i1892) i"Cserar" lettern by Hamilton m October 1788).

6-12 11952).

XXIV (1776) ; S C. CONET. art. XXXVIII (1778)777) : S.H COXST. art. V. Bill of Rights il'i841 : ration of Rights 117801 ; GA. COXST. art. XVI117771 i MD. COAST art. XXXIII, Declaration of Rights (1776). Theae articles which preserved the right af freedom af religion taak care to exempt from thia freedom any utterances deemed to be seditious Consequently, it seems unlikelythat the doctrine of seditious libel, BO earafully reserved I" m e part of the state mnitltutimi, would be reieeted elsewhere. See aka PI. COXST. art. IX. S

fiB%%o% ~ ~ ~ u ~ ~ ~ % K

176-249 (1860).ted States Y. Womall, 2 U.S. 12 Dail.1 384 !1783i, United State. v Ravara, 2 U.S 12 Dall.) 297 (17931. United States Y. Smith, 27 F. Caa. 1147 (KO.

163231 !C. C. Mars 17821: 1 Om APT'? GEN. 71 !17971. "See J. SMITH.

AKD S~ITIOT

AIIERICAP CWIL LZ~W~TIES

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