Must the Soldier Be A Silent Member of Our Society?

• Pages: 03

By Major Michael A. Brown**The author compares the rights of the individual soldier with the rights of the private citizen in the area of 00%

stitutianallu protected sseech. In odditim. the nutho? analyzes obn&ssional hnd execvtive resiraints upon freedom of speech and Department of the Army regulations implementing such restraints. He then compares these restraints with those extant in the oivilion community. Conclusiom are then woffered as to whether substantial differences in the freedom of soeech riohts

. .

exist between the civilian and military spheres.

1. ISTRODUCTION

   "One of the things thst I don't like about the Army is not being able to say what I'm thinking."

   "If you always speak aut for what you believe in the military service your career is finished."

   "I'm not staying in the service because I want to be my own boss and say what I feel."

   How many times have these statements, and a thousand like them. been heard in conversations among all members of our society, bath civilian and military Daea the sddier' really have more restraints upon his speech than the ordinary employee? Does a member of the armed forces of the United States forego some of the constitutional rights he is defending because he is a soldier? Certainly the average civilian feels that he has more freedom in his speech than his military counterpart. Is this just because of the less regimented life in the civilian society as opposed to the well disciplined life in the military service? Does

   This article was adapted from a theais presented to The Judge Advocate General'? Sehool, U.S. Army, Chsrlattesvilie, Virginia, while the author wasa member of the Sixteenth Advsnced Coume. The opmioni and e~neiu~ions presented herein are those of the author and do not necessarily represent the views af The Judge Advocate General's Schaal OT any other govern-menta1 agency.

   **JAGC. US. Army; Executive Office, Office of the Judge Advocate General: LL E., 1961, St. Mary's University; admitted to practice before the Supreme Court of Texas. the U.S. Court of Claimi. and the U.S. Court of Military Appeals.

   'The term "soldier" is used in this Instance and throughout this article, unless otherwise Indicated, ta indicate a member of the armed farces, either officer or enllated.

   43 MILITARY LAW REVIEWthe first amendment right to freedom of speech extend farther for a civilian than far a soldier? To answer this question i s the purpose of this article.

   In pursuit of this answer the area of freedom of speech under the first amendment will first be explored generally, and then a specific compariaon between the civilian and military practlcee in the major aread of free apeech will be made. Fzam this a m - parison the soldier's rights to freedom of speech will be determined. Hopefully, a conclusion will then be reached as to whether the civilian has rights that his uniformed counterpart does not.'

   11. DOES THE COSSTITUTIONAL RIGHT TO FREEDOM OF SPEECH APPLY TO THE SOLDIER?

   In discussing freedom of speech under the first amendment in relation to the soldier, first it must be determined nhether the constitutional guarantee of freedom of speech extends to mem-bers of the armed forces. The applicability af the Constitution and, in particular, the Bill of Rights ' to the military has occupied the thoughts of leea1 scholars for many years Colonel Ml'iliiam Winthrop, the famous authoi'ity on military law, was of the opinion that the Bill of Rights did not hare application to the military community.'

   Contemporary writers map generally be grouped into three categories. The first group, in support of Colonel Winthiop, can- 'me COXIT. amend I. "Congress shall make na la- . . abridging the freedom of speech, or oi the pre~e . . , ."

   'The on elusion^ drsan from this eompariion of military and ~i~ilisn rights muit be put into proper perapedm Comparing a civihan'i rightsto iree speech m general to those of a soldier 1s much like a comparisonof apples and oranges. The rights of all citizens m e being compared with thaw of ii specific class It should be noted that a civili~n'~nghtr may

   change when he 1% considered not BP a member of the general category but BI B member of B ~peeific category. L.Q., labor union or iaige corporation, where he mar haie assumed certain rertrictions upon hw right to free I p f e e h .

   'us. COYST amend. I-X [hereinafter cited as "Bill of Riphtr"] 'Thx C O ~ C I U P ~

   IJ based upan comments by Colonel Winthrop in his book. VIILITARY LAW AND PRECEDEXIS (2d ed. 1920 reprint). In discvpilng the rlght to counsel rer forth I" u.s COTST. amend. VI, he raid thar the

   menta did not bind military courts-martial but should be followed 8s e rule of practice I'd at 3981.

   72 *GO li?iB

   FREEDOM OF SPEECH

   tend that the first amendment right to freedom of speech does not extend to the mi1itary.l The seeand group seems to be of the opinion that the first amendment does apply, but in a partially restricted fashion: Finally, the third proup takes the position that the Constitution's protections were intended to apply to the armed forces fully and without restrictimS

   1. THE VIEW THAT IT DOES NOT APPLY

      The supporters of the view that the soldier i8 afforded no constitutional rights generally analyze three essential paints : the history of the early military criminal codes in relation to the Constitution; the provisions af the present Cniform Code of Militwy JusticeP and its historical antecedents: and the wording of the Constitution itaelf.

      Illustrative of this Yiew is Frederick Bernays Wiener.ln As to the first point he notes that shortly after the adoption of the Bill of Rights, then Secretary af War Knox stated that the military code then in effect had to be changed to conform to the Con-8titution:l MI. Wiener further shows that no change was forthcoming and reasons that the present Code, as the s~~cces8or to

      the earlier military codes, still does not provide constitutional protections.

      As to the second point generally referred to by those taking the "no constitutional rights far the military" approach, Mr.

      * Ssbei. Civil Soleguavd Before Courts-Me7tinl. 25 MI". L. m. 828 (1941); U'lener, Cowt~-,na~tialand the Bill oi Right.: The Ongmal Pmo-tzor I. 72 HARI. L. REV. 1 (1968): Wiener, Courts-.Martial and the E111 ofRights: Thr Original Practice II, 72 HART. 1. REY. 266 (1958).

      .Quinn, The United State8 Court of Military Appeal8 and Indiwduol Rights in the .Whtory Serum. 3i NOTRE DAXE L A ~ E R

      491 (19SOj; Quinn,

      The Cnited States Cauit a/ .Milita7y Appeals end Yilitary Due Process,35 61. JORI'S L. REII. 225 (1961j: Vasts, Free Speech in the Armed FO~OBB, 67 COLUX. L. REY. 187 (19671: Warren. The Bill of Rzahts a d the Militan!

      "See supra"note 6. .

      "The Continental Avtieles and Rulea io, the Bette7 Government a i the T~oapi, adopted 20 Sep. 1776, 1 JOUR. COND. 4, 82 i1176).

      " 1 AMERICAX STATE PAPERS MILITARY A ~ A I R B

      6 iLo4tie & Clark Eds. 1832). The comment was contained in a report by Secretary Knox on the troops in the sewice of the United States. No reasom or specifies m e &en by Seeretary Knox vhy the adoption Of the Bill of Rights would neceaaitate B change in the military code.

      *

      Wiener goes on to paint out that the soldiers at the time of the adoption of the Bill of Rights were volunteers and their military codes proscribed military offenses only. civil criminal of-fenses being handled by civilian courts of appropriate jurirdiction From this he concludes that the military codes were never intended to confoim to constitutional standnids or to afford conitltutiona! protections.

      Concerning free ipeech in particular 31s IViener believes that

      words towards rhe President or Congress TVhen this right of the indiridual Citizen was impinged an by the Sedition Act of 1798 '. President Jefferaon opposed it as unconstitutional. How eyer. Prerident Jefferson did mgn a similar bill that first enacted this same restraint on the soldier.' Since article 88. 89 and 91 do not conform to the Constitution, Mr. TIiener reasons, It 1s eri-dent that the freedom of Bpeech guarantee was not intended to

      Consequently, the unconstitutional little import since the right of conis not extended to the soldier.

      With respect to the third point mentioned above, one writer reasons that because of the wording of the Conatitution "constitutional guaranteea only apply to ~ e r d o n ~ who are entitled to indictment under the fifth amendment.'' I' Since the military services are specifically excluded from this right in the Constitution he then reasons that it is an express exclusion of the military from all constitutional rights

      ~ POI TV-lmpr aumm note fl Xlentioned as conshtutmnal restraints 01

      .~~ ~~

      free speech are the articles punishing provoking speech (UCMJ art 1171,rolmtine desertmn OT absence ICCMJ art. 82). emresmndini with the '

      "Ict of 14 Jul. 1798, 1 L '"Code of 1806. Act of 10

      emy ?UCDlJ art. 1041, and betraying a eavnterslen [CCMS art. 101).

      Itat. 196.

      , A m 1806. eh. 20 2 Stat. 359.

      FREEDOM OF SPEECH

      Also emphasized in this third area is the wording of the Constitution, article I, dame 14, giving Congress the power "[tlo make Rules for the Government and Regulation of the land end naval Forces" which, it is reasoned, shows that the rules for the armed forces are beyond constitutional protections since they are specifically stated in the Constitution to be dictated by the whim of Congress.

   2. THE VIEW THAT IT DOES APPLY

      Proponents of both the "restneted" and the "unlimited" application of free speech rights analyze three points to arrive at their view: the hiatary of the early military codes in relation to the Constitution: the wording of the Constitution itaelf; and the relationship of the soldier's duties to his rights. One writer agrees that the original military codes provided only for military offenses and left civilian offenses to be tried by the civilian courts. However, in his opinion this is the major reason to believe that because soldiers were guaranteed the...