Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 20, 2013

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Freedom of speech is a guaranteed right for all United States citizens, in accordance with the Constitution. However, members of the military do face certain context-based restrictions on how they exercise that right.

Limits to Free Speech

Article 88 of the UCMJ, 10 U.S.C. 888, makes it a crime for a commissioned military officer to use contemptuous words against the President and Congress, among others. The Department of Defense has also expanded this rule to include all military enlisted personnel (DOD Directive 1344.10). During the Monica Lewinsky scandal, two enlisted members of the military were formally reprimanded for using e-mails to mock President Clinton. Presidents Lincoln, Truman, Carter, Bush, and Obama have all decided to reprimand or remove high ranking officers for public comments that undermine or disobey presidential policy.

Other limits to military free speech include acting disrespectfully to a superior officer, insubordinate conduct, willful disobedience, conduct unbecoming an officer, and conduct prejudicial to good order (bringing disrepute onto themselves and the service) and more. These rules are more accurately described as codes of conduct than limits to free speech.

Free Speech and the Constitution

“Free speech” as enshrined in the First Amendment raises intriguing issues for the military. In 1968, twenty-seven enlisted military men were arrested for violating military rules against otherwise free speech. The group continued their activities in a San Francisco Army stockade, where they essentially went on strike, and demanded free access to the press and civilian lawyers. Another case in 1968 resulted in an officer being arrested and convicted for attacking President Johnson as a “fascist,” even though he was not on active duty but a reserve officer.

The recently repealed “Don’t Ask, Don’t Tell” Act (DADT) was a good example of a military policy that many in military service have strong opinions about, but feel they cannot express these opinions usefully without harming their team or mission cohesion.

Outlets

Many national polling organizations regularly interview members of the military, such as the Roper or Gallup polling groups. The Stars and Stripes is an official military publication, which helps preserve and improve military morale by offering brutally frank free-speech forums. The existence and continuation of these forums is officially encouraged by the presence of an Ombudsman, who has unique freedom of speech as a surrogate for all soldiers’ desires to be heard.