A soldier's blog: balancing service members' personal rights vs. national security interests.

• Author: Lytle, Tatum H.

1. INTRODUCTION II. RESTRICTIONS ON PRESS COVERAGE DURING THE WAR A. Pre- Vietnam Press Coverage During War B. Open Access: Press Coverage During the Vietnam War C. Post- Vietnam Press Coverage: Striking a Balance III. FREE SPEECH WITHIN THE MILITARY FORUM A. Clear and Present Danger Standard B. Military Bases are Generally Nonpublic Forums C. Subordination of Personal Rights for Military Personnel IV. REVOLUTION OF BLOGGING ON THE INTERNET A. A Brief Description of a Blog B. The Rise of Warblogs V. MILITARY REGULATION OF FREE SPEECH A. Uniform Code of Military Justice B. Regulations Proffered by the Department of Defense C. General Orders Given by Military Commanders VI. SOLDIERS' PERSONAL BLOGGING STORIES A. Popularity Killed the Soldier's Blog B. A Soldier's Punishment for Blogging C. Reigning in Blogs D. Is Military Regulation of Blogging One-Sided? E. Military Spreading the Good Stories VII. MODIFICATIONS AND ADDITIONS TO REGULATION OF SOLDIERS' BLOCS A. Amendments to the Uniform Code of Military Justice B. Orders Proffered by the Department of Defense C. General Orders Given by Military Commanders VIII. CONCLUSION I. INTRODUCTION

   Technological advances occurring within the last two decades are shrinking the world and exposing America to heightened homeland security risks. Threats posed by terrorism and weapons of mass destruction have resulted in an increased American military presence in foreign nations. These recent military efforts toppled Saddam Hussein's regime, denied al-Qaida a safe haven in Afghanistan, and dismantled the repressive Taliban. Even though military victories have been accomplished, these military operations have created competing priorities between protecting personal freedoms versus national security interests. This Note addresses the issue of regulation of Web sites created by military personnel containing war experiences that may threaten national security.

   Part II of the Note provides background on press coverage and press censorship of American wars. Part III of the Note generally addresses free speech in the military and discusses applicable case law governing freedom of speech claims within a military context. This Part discusses the unique regulations regarding conduct and speech that are placed specifically on soldiers rather than the civilian community. Part IV of the Note examines the revolution of blogging on the Internet. This Part contains a brief description of a weblog, illustrates the unique characteristics of a weblog compared to traditional media sources, and discusses the rise and popularity of weblogs. Part V examines the relevant articles of the Uniform Military Code of Justice which may subject soldiers to discipline for creating and maintaining a blog regarding their military conduct. Part V also addresses regulations implemented by the Department of Defense and general lawful orders given by military commanders which restrict a soldier's speech. Part VI of the Note describes stories of soldiers' personal experiences with blogging and the government and military's involvement with regulation of soldiers' blogs. Part VII sets forth suggested modifications regarding regulation of soldiers' blogs.

2. RESTRICTIONS ON PRESS COVERAGE DURING WAR

   Throughout periods of conflict during American history, tension between national security interests and First Amendment freedoms has surfaced. A conflict exists between the military's need to protect the military's operational tactics and strategies versus the public's right of access to the status of military operations.

   1. Pre-Vietnam Press Coverage During War

      As communications technology has changed over time, information on military operations has become more accessible. As such, the regulation of this information becomes more complex. During the American Revolution, communications were limited to personal letters and official messages. (1) Due to the transitioning state of the government, censorship of this form of communication did not occur, and press coverage of military operations was nonexistent. (2) With the advent of the telegraph, press coverage of the Civil War was much more extensive. (3) In turn, this led to the government's implementation of a "program of censorship 'imposed to prevent the publication of information of value to the enemy' and to 'stifle criticism of the conduct of war.'"(4)

      In 1917, during the first World War, the "State, Navy, and War Departments established the Committee on Public Information to provide information and enforce censorship regulations." (5) At this time, the Espionage Act was passed which prohibited publication of information useful to the enemy or any interference with military operations or war production. (6) The Sedition Act of 1918 was passed which prohibited critical remarks about the conduct of operations, the United States Government, or its military forces, including the flag. (7) The Espionage and Sedition Acts have since been repealed; however, the government continues to impose guidelines on the flow of information pertaining to military operations. After the attack on Pearl Harbor during World War II, Congress enacted the War Powers Act (8) which led to President Roosevelt's creation of the Office of Censorship. (9) This office set up guidelines which were codified as the Code of Wartime Practices. (10) Although this code imposed restrictions on press coverage of the war similar to those imposed during World War I, the relationship between journalists and the government regarding press coverage remained open and civil. (11) The press had access to battle zones and was even present at critical points of the war, including the invasion of Normandy. (12)

   2. Open Access: Press Coverage During the Vietnam War

      During Vietnam, relaxation of censorship occurred. The press had unprecedented access to military operations since there was no censorship of reports or television coverage. (13) Journalists during Vietnam merely had to agree to the following basic ground rules: (1) there would be no casualty reports on a daily basis; (2) troop movements should not be announced and would not be confirmed until the enemy knows of the movements; (3) no united identifications should be given when reporting on battles; (4) similar specific information should not be released on air strikes; (5) next of kin should not learn of a death through a news photograph, and privacy rights of the wounded should be respected. (14) The lack of formal censorship led to a conflict between the media's negative portrayal of the war and the government's push for gaining public support of the war. The press covered graphic and disturbing aspects of the war stifling public support. (15) The public relations stance on Vietnam "ended the cooperative relationship between the press and the military, as the government came to believe that the 'lesson' of Vietnam was that the press had 'lost the war for America.'" (16)

   3. Post- Vietnam War Coverage: Striking a Balance

      After Vietnam, the next military operation involving U.S. troops was Grenada. During Grenada, American journalists were not allowed to join the military invasion force for the first two days. (17) As a result of the pressure on government from the press regarding denial of access to the Grenada invasion, the government implemented a panel to study military-press relations. (18) Although this panel suggested recommendations for press coverage of future military operations, the press was nonetheless denied access to future military operations. (19) For instance, no journalists were present when the United States bombed Libya or during the invasion in Panama until the military operations had ceased. (20)

      Before the start of the first Persian Gulf War, the Department of Defense's Secretary for Public Affairs issued guidelines restricting press coverage of military operations. The guidelines restricted coverage of the following:

      (1) specific numbers of troops, aircraft, weapons systems; (2) details of figure plans, operations or strikes; (3) information on the specific location of military forces or security arrangements in effect; (4) rules of engagement; (5) intelligence collection activities; (6) troop movements; (7) identification of aircraft origin; (8) effectiveness or ineffectiveness of enemy camouflage, cover, deception, targeting, etc; (9) specific information on downed aircraft or damage ships while search-and-rescue missions were planned or underway; and (10) information on operational or support vulnerabilities of U.S. and allied forces. (21)

      After the Persian Gulf War, the press severely criticized the government's restrictions of the press as to reporting on military operations. Such criticism led to the formation of a committee aimed at reaching a compromise between the government and press correspondents. The nine principles agreed upon included: (1) open reporting would be the norm in covering military combat; (2) pools (23) should be used where they are the only feasible means of obtaining early access; (3) pools may sometimes be required for specific events due to logistical constraints; (4) a system of credentials would be implemented for journalists and violators of the ground rules would be expelled; (5) reporters would have access to major military units; (6) military public affairs officers should act as liaisons between the military and the press but should not interfere with reporting; (7) military commanders would allow reporters to ride on military equipment wherever feasible; (8) the military would facilitate the filing of timely and secure reports from the field; and (9) these principles would also apply to the standing Pentagon Pool. (24)

3. FREE SPEECH WITHIN THE MILITARY FORUM

   The regulation of speech of military personnel is much more stringent than the regulation of speech imposed on the general public. The United States Constitution states that Congress "shall make no law abridging the freedom of...