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This paper was presented at the Association for Education in Journalism and
Mass Communication in San Antonio, Texas August 2005.
If you have questions about this paper, please contact the author
directly. If you have questions about the archives, email
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(Feb 2006)
Thank you.
Elliott Parker
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SOLDIER OR CITIZEN IN THE DIGITAL AGE?
How access to technology and the Embedded Media Program effect First
Amendment protections for speech and the military's authority to restrict it
Anaklara Hering
College of Journalism and Communications
University of Florida
2360 S.W. Archer Road, Apt 109
Gainesville, FL 32608
760-458-7455
[log in to unmask]
AV Requirements:
laptop equipped with PowerPoint and projector
SOLDIER OR CITIZEN IN THE DIGITAL AGE?
How access to technology and the Embedded Media Program effect First
Amendment protections for speech and the military's authority to restrict it
When defining First Amendment protections for military personnel,
courts balance the need for a viable military against preservation of
rights for those called to arms. Most often, national security wins
at the expense of speech, however embedded war correspondents and
sophisticated communication devices present challenges to these
precedents. This article explains the rationale that holds service
members as soldiers first and citizens second and proposes education
before the press loses its access to the battlefield.
Introduction
The 2003 U.S.-led war in Iraq ushered in an era of warfare
distinguished by unprecedented media coverage of the battlefield and
access to sophisticated communication technology, like the Internet
and cellular telephony.[1] Virtual lines of communication ran
directly from bunkers in Baghdad to living rooms across America.
Additionally, the advent of the Department of Defense
(DOD)-sanctioned Embedded Media program[2] placed journalists and
photographers on the battlefield, gave them direct access to troops,
and created an environment devoid of the government censorship
characteristic of conflicts since the Vietnam War. These two
developments combined– service members' access to communication
technology and media access to the battlefield –created an
environment ripe with opportunities for individual service members to
communicate with the world.
Regardless of these newfound outlets for speech, stringent military
regulations exist that restrict the speech of service
members. Content-based restrictions limit service members from
expression that would otherwise be constitutionally protected.[3] The
distinction that generates this free-speech debate from others
involving civilians is that members of the U.S. Armed Forces do not,
by necessity, traditionally warrant the same constitutional
protections for their speech as do non-military citizens, a standard
upheld by the U.S. Supreme Court. The dichotomy between a service
member's constitutionally protected right to express him and the
restrictions against him make a discussion on "free speech in the
military" an oxymoron. However, new considerations now refuel the
debate about constitutional protections for the speech of service
members. Consider the latest developments surrounding access to
technology and media access to the battlefield.
From the basic infantryman to the intelligence officer, cellular
telephony, satellite communications, and the Internet are all
elements of current military training. In the last decade, these
technological tools were elevated from obscurities to essential
components of the battlefield. They now serve to characterize the
generation of soldiers fighting the War on Terror.[4] ManyM
Increased access to such tools while in a combat zone revolutionized
communication between the soldier and the home front. Thus, the
opportunity for a service member to express his opinion about the
conflict was as close as the nearest computer or embedded
reporter. The embedded media during the Iraq interviewed service
members about longings for home and loved ones. These are the
stories U.S. Secretary of Defense Rumsfeld anticipated when he
initiated the Embedded Media Program in early 2003.[5] But other
service members made statements that, at times, were critical of U.S.
policies surrounding the conflict; some even spoke about ground
operations sensitive to the mission.
In addition to the civilian statutory and common laws, service
members abide by an additional set of government regulations known as
the Uniform Code of Military Justice (U.C.M.J.). The U.C.M.J.
contains specific regulations restricting speech for service members
in specified circumstances.[6] A comparison of the protections
provided by the Constitution and the restrictions imposed by military
regulation reveals a legal paradox for Americans serving in the Armed Forces.
At a time when technology facilitates the global communication of
ideas and opinions and when the media has been granted uncensored
access to the battlefield, service members are literally teased with
opportunities to speak about their war-time
experiences. Nonetheless, they are restrained, in part, by the very
Constitution they swear to defend.[7] The pertinent question is how
the two media developments that surfaced during the Iraq War- service
members access to communication technology for personal use and the
Embedded Media program – influence the free-speech debate.
The combined presence of both media and technology during the Iraq
War resulted in obvious changes in the style and efficacy in which
the media covered U.S. military operations abroad. That, however, is
beyond the scope of this article. Less apparent, but worth
examination, is the effect that access to technology and media access
to troops has on the legal argument for regulating the speech of
service members.
The Iraq War was the first time that the low-ranking private, just
like the four-star general, could address the world directly from his
gun turret, command center, or hospital bed. Take, for example, a
July, 2004 Knight-Ridder newspaper story that quoted Army Staff
Sergeant A.J. Dean while he patrolled outside Ramadi, Iraq. [8]
I don't have any idea of what we're trying to do out here. I don't
know what the [goal] is, and I don't think our commanders do
either. I feel deceived personally. I don't trust anything
[Secretary of Defense Donald] Rumsfeld says, and I think [Deputy
Secretary of Defense Paul] Wolfowitz is even dirtier.[9]
Dean received minimal unit-level punishment for his insubordinate
speech.[10] In conflicts previous to the Iraqi War, though, other
service members who made critical statements similar in nature were
punished under the criminal codes of the military justice
system. The U.S. Supreme Court upheld military decisions that
punished insubordinate speech, but these decisions were made in an
environment and time devoid of the communications technologies and
media presence that are characteristic of current combat operations
in which Dean served. This article will examine how increased access
to communication technology and the development of the Embedded Media
program challenge military regulations on free speech. The article
is organized into three parts.
Part II provides the historical background of court decisions dealing
with military speech. Section A describes the structure of the
military system of justice, including its similarities to and
differences from the civilian judiciary. This section explains the
source for the government's authority to regulate service members'
speech. Also explained are the avenues of appeal available to
service members charged with violations of these
regulations. Evidence is presented to support a critical argument
for skepticism about the fairness of adjudication in the military courts.
Section B examines the courts' balance of free speech and national
security. Schenk v. United States,[11] is the seminal case that
established the "clear and present danger" precedent that would
characterize decades of rulings on service members' speech.
Subsequent cases are discussed and establish the evolution of the
"clear and present danger" test. Cases where the Supreme Court dealt
specifically with members of the Armed Forces are examined in the
context of the "clear and present danger" precedent.
Section C provides evidence of the internal disparity within the U.S.
Constitution in regard to free speech. When compared to the
principles in the Bill of Rights, contradictions are revealed that
complicate the argument surrounding speech in the military. The
complexities of the free speech debate are rooted in the actual
design of the military system.
Part III has two main sections that frame the communications in
combat paradigm for the media and the service member. Section A
discusses the Embedded Media Program as a radical change from
military-media relations of the twentieth century. It explains the
advantage today's war correspondents have over those who operated
under more restrictive Department of Defense (DOD) press policies and
how advanced communications technology has revolutionized he role the
media plays in the free speech debate.
Section B discusses the communications paradigm from the service
member's perspective. It provides a selected review of incidents
since the 1992 Persian Gulf War involving American military service
members whose speech was critical of U.S. military policies, the
government, and its leaders. This review also includes the stories
of service members who spoke about their wartime experiences from a
personal perspective. While the content of all these incidents could
be considered as violations of the U.C.M.J. restrictions against
speech in various degrees, some were prosecuted by the military,
while others were not. The rationale behind the selective punishment
is not apparent, only that prosecution of insubordinate speech has
become less frequent since the Iraq War began. The author proposes
that the military is taking a less aggressive stance toward
questionable speech because of the prevalence of communication
technology and the intrusive nature of the Embedded Media Program.
Part IV discusses the contradictions that exist between the theory of
military supremacy over individual rights and the practice of
actually regulating service members' speech. The author compares
legal precedent in military regulation of speech and the most recent
and relevant incidents that have occurred. The author concludes in
this section with the finding that adjudication of military
violations – or the lack there of – suggest that burgeoning
influences of the Digital Age and Embedded Media program are changing
the free-speech debate for military service members.
Part I- Historical background of court decisions on military speech
A. The independent military judiciary
Control of the military is directed specifically in the U.S.
Constitution to be a function of the executive branch and the
Congress. Article I of the Constitution grants Congress the power
"To declare War…To raise and support Armies…To provide and maintain a
Navy; To make Rules for the Government and Regulation of the land and
naval Forces."[12] Article II appoints the President the Commander in
Chief of the Army and the Navy.[13] While the legislative and
executive branches are each distinctly named with oversight on the
military, the role of the judiciary is absent, thus allowing the
military to operate an independent court system.
An independent military judiciary has existed since colonists founded
the United States as a sovereign nation.[14] Within the criminal
code designed to govern the members of the military, known as the
Articles of War, the unit commander had the authority to use
courts-martial proceedings at his discretion as a means by which to
discipline his troops. This system of military justice prevailed
until World War II (WWII) during which a greater number of Americans
were members of the Armed Forces than at any time previously in the
U.S. Subsequently, the number of courts-martial also rose to a
higher number than ever before. This aberration was followed by a
backlash from the American public, a reaction to what was considered
an arbitrary military system of justice. Congress reacted by
replacing the obsolete Articles of War with a Uniform Code of
Military Justice (U.C.M.J). The new regulations attempted to
streamline military law. The goal was to create a parallel system
similar to the civilian judiciary.
Despite efforts to revise the military courts into a more objective
system than what the Articles of War offered, an arbitrary method of
justice prevails today in the U.C.M.J. The authoritarian structure
of the chain of command makes it the responsibility of the commander
to apply the laws and regulations of the U.C.M.J. according to his
own best judgement. Within this separate justice system, service
members abide by additional regulations beyond what is provided by
civilian law. This article will specifically discuss military
regulations that curtail expression.[15]
Though service members are subject to the regulations like these,
they are nonetheless still afforded other protections by the Bill of
Rights. Herein lays the internal disparity of the U.S. Constitution.
The Articles of the Constitution provide the authority for a separate
military judiciary, and indirectly the U.C.M.J., which restricts the
speech of service members. Simultaneously, the First Amendment
contained in the Bill of Rights provides for the protection of speech.
For example, the U.C.M.J. specifically restricts expression – be it
in the form of speech, press, assembly or petition - that is harmful
to the viability of the Armed Forces, disrespectful to the Commander
in Chief and the chain of command, or a threat to national
security.[16] Within the same document, the First Amendment
provides, in part, that "Congress shall make no law…abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble."[17] The internal contradiction found within
the Constitution is the crux of the conflict that has resulted in
U.S. Supreme Court intervention in several cases involving protected
speech for members of the military. A review of the cases, which is
provided in later sections of this article, reveals the ambiguous
language used when the Court first attempted to define free speech
standards for military personnel in the 1950s. Subsequent decisions
on the same issue disclose the lack of assertiveness on the part of
the Court to dictate strict standards of application for the military
when it attempts to restrict the speech of its service members.
The formal guidance for commanders on the subject of free speech is
limited. One example is a 1969 DOD directive that ordered commanders
to preserve free speech "to the maximum extent possible."[18] The
directive offered no further test or standard by which this goal was
to be met thereby exacting the personal tolerance of the commander as
the litmus test for what speech was acceptable.
The military system has a two-tiered system of adjudication with an
option for courts-martial and judicial punishment or the option of
non-judicial punishment for lesser offenses.[19] Either way, the
application of the system is subject to the commander's opinion of
what is appropriate. There is a system of appeals which eventually
leads the service member into a civilian court, but it is preceded by
the Court of Military Review, which is manned by military judge
advocates. Only the highest court in the military justice system,
the United States Court of Military Appeals is considered a civilian
court, and its sole authority rests in the review of errors of law in
courts-martial proceedings.[20]
It was not until the 1950s that the U.S. Supreme Court began
significant review of military court decisions with alleged
constitutional violations.[21] Critics of the military system of
Courts-Martial are skeptical of the subjective authority commanders
are empowered to employ in order to maintain the good order and
discipline necessary to support a viable military force.
B. U.S. Supreme Court balances free speech and national security:
From Schenk to Priest
Just as there are restrictions on speech in the military, limits on
the speech of civilians also exist. In the 1919 case of Schenck v.
United States, Justice Oliver Wendell Homes stated, "The most
stringent protection of free speech would not protect a man in
falsely shouting fire in a theater, and causing a panic."[22] The
Court ruled in Schenk that the right to exercise free speech must be
examined in the context of its circumstances. The effect of that
speech, not necessarily the content, is at question. Justice Holmes
stated that:
The question in every case is whether the words are used in such
circumstances and are of such nature as to create a clear and present
danger that they will bring about the substantive evils that Congress
has the right to prevent.[23]
This rationale became known as the "clear and present danger test"
and would remain the precedent for adjudication of First Amendment
challenges –both civilian and military- until the late 1960s.
The adoption of a secondary standard for speech challenges was rooted
in the 1951 case of Dennis v. United States.[24] The dissenting
opinion of Justice William O. Douglas argued that it was not enough
for speech to merely advocate actions that could be dangerous to
national security, as the Holmes doctrine had purported. Douglas
said that immediate injury to society must be a likely result of the
speech in question. Almost two decades later in 1969 the dicta of
Justice Douglas was adopted in Brandenburg v. Ohio.[25] In
Brandenburg the Court established a new rule of law in which
punishable speech must "incit[e] or produc[e] imminent lawless action."[26]
Neither the Schenk nor the Brandenburg decisions defined rules of
application for these standards to the military. Regardless, both
standards were continually cited as precedent in subsequent cases
involving the speech of military personnel.
This test would become the benchmark standard by which future
military cases involving the speech of military personnel would be
judged. Safeguarding national security would become the de facto
affirmative defense for the military when it attempted to restrict
the speech of a service member. This difficult-to-define term
"national security" favored the silencer over the silenced. Senior
officials in the nation's military and civilian leadership agreed on
a loose definition of the term describing it as the military's
ability to maintain its combat readiness for a decisive, immediate,
and coordinated response to any threat to the national interest.[27]
The 1953 adjudication of Burns v. Wilson by the U.S. Supreme Court
was the first decision that recognized individual rights, as
represented in the Bill of Rights, for military service
personnel[28]. Although these rights were not considered absolute,
this case served to distinguish a service member's right to
eventually access civilian judicial review of military cases. It did
not, however, address the five tenets of the First Amendment– speech,
religion, assembly, petition, and press- specifically.
In the 1954 case of United States v. Voorhees,[29] Judge George W.
Latimer stated in a separate opinion:
Undoubtedly, we should not deny to servicemen any right that can be
given reasonably. But, in measuring reasonableness, we should bear
in mind that military units have one purpose justifying their
existence: to prepare themselves for war and to wage it
successfully. That purpose must never be overlooked.[30]
Judge Latimer's reasoning is indicative of the kind of credence given
to the military's system of order and discipline, especially in the
regulation of subversive speech. It is not disputed that the military
maintains command and control through an authoritarian
structure. Hypothetically, then, unrestricted speech within the
military, an approach at one extreme of the spectrum, would be
counter-productive to order and discipline. Acknowledging this does
not automatically condone, however, a line of reasoning at the other
end of the extreme that would stifle any expressive speech what so
ever. This camp would posit the idea that unrestricted speech in the
military is automatically analogous to insubordination that poses a
threat to national security.
The responsibility goes to the courts to decide where the medium
between these two extremes lies. The U.S. Supreme Court made its
willingness to subvert individual rights for the sake of national
security clear beginning with the Schenk decision. Later Courts
followed suit with the opinions in Dennis and Brandenburg, which
addressed civilian speech, and later with Voorhees. The medium
between these two extremes, the Court ruled, was not based the
service member's right to expression, pursuit of self-fulfillment, or
position in the market place of ideas. It was a matter of military
viability. With these Supreme Court decisions, the military retained
its authority to restrict –in its subjective system of military
justice- a service member's speech.
Nearly 20 years later in 1974, the issue of First Amendment rights in
particular was argued in the U.S. Supreme Court in Parker v.
Levy.[31] It was the first case to address service member's First
Amendment rights specifically and thus remains a significant case in
this area of constitutional law.[32]
Captain Levy was a military officer and doctor responsible for
training medical personnel who were preparing for deployment to the
Vietnam War. Levy was an outspoken critic of the war and made overt
actions to ensure his students were aware of his views. Although he
completed his teaching duties and trained the majority of his
military students, he refused to train Special Forces personnel. As
a result of his insubordinate actions and refusal follow orders, Levy
was court-martialed by the Army for "conduct unbecoming an officer
and a gentleman"[33] and "disorder and neglects to the prejudice of
good order and discipline in the armed forces."[34] Levy argued that
the two articles of the U.C.M.J., by which he was charged, were vague
and overbroad according to the strict scrutiny test, and therefore in
violation of the First Amendment. In the final appeal, the U.S.
Supreme Court held that Levy's conduct "was unprotected under the
most expansive notions of the First Amendment."[35] The Court found
that the war-time context of Levy's speech was crucial in their
decision to determine that the military had a compelling state
interest, which was to sustain the good order and discipline of the
military, and that it was sufficient to suppress Levy's speech.
A clear disparity in the adjudication of Parker was the Court's
unwillingness to allow Levy to provide arguments from the
perspectives of other possible challengers to the statute. This
practice is often used in challenges to overbreadth and vagueness[36]
and is used to determine whether or not the statute would be
unconstitutional if applied to someone other than the defendant.[37]
The standards that the military was expected to meet to show a
compelling interest were far more lenient than what was necessary in
a civilian court. Additionally, the Court did not apply strict
scrutiny in its analysis of the U.C.M.J. to determine whether or not
the articles with which Levy was charged were narrowly crafted in a
manner that was not overbroad and vague.[38] Had the Court applied
the traditional standards used in prior civilian First Amendment
challenges, perhaps it would have found Levy's speech was indeed
protected by the First Amendment.
The Court stated in its opinion that:
[w]hile the members of the military are not excluded from the
protection granted by the first amendment, the different character of
the military community and of the military mission required a
different application of those protections.[39]
This was only partial clarification to the First Amendment
question. According to the Court's ruling in Parker, the commander's
discretion remained the standard by which to establish a compelling
interest and neither the degree of overbreadth nor vagueness of the
military code were examined.[40] The Court's decision has been
criticized as being overly restrictive of service member's individual
rights.[41] Nonetheless, subsequent rulings continued to rely on the
precedent established in Parker as justification for suppressing
service members' First Amendment rights to free speech.
C. Self-contradiction in the U.S. Constitution
A particular case in 1967 highlights the strict application of
speech restrictions on military personnel. In United States v. Howe,
17 U.C.M.A. 165, 37 C.M.R. 429 (1967), an Army second lieutenant was
convicted in a courts-martial of violating articles 88 and 133 of the
U.C.M.J. These articles prohibited the use of contemptuous words
against the President and conduct unbecoming an officer and a
gentlemen. While stationed at Fort Bliss, Texas, he participated in
a peaceable demonstration in El Paso. Military police present at the
protest observed him carrying a sign that read: "Let's have more than
a choice between petty ignorant fascists in 1968." The reverse side
of the sign read: "End Johnson's fascist aggression in
Vietnam." Second Lieutenant Howe appealed his conviction to the
Court of Military Appeals. In his argument, he claimed that the
charges against him violated his First Amendment rights.[42]
The military high court affirmed the conviction citing something
related to the "clear and present danger" precedent. It cited a
precedent that asserted the need for civilian control over the
military. Restrictions on the free speech of military service
members, especially contemptuous speech toward the nation's civilian
and military leadership, are regarded as threatening to national
security since they are directed at inciting a coup against the
civilian government, the standard produced in Brandenburg. This
relationship between the civilian government and the military is
rooted in the 1775 Articles of War.[43]
An opinion in a later case, United States v. Priest, 21 U.S.C.M.A.
564, 16 C.M.R. 338 (1972), succinctly ties together the themes upon
which the courts have upheld the constitutionality of speech
restrictions on military personnel.
In the armed forces some restrictions exist for reasons that have no
counterpart in the civilian community…In military life, however,
other considerations must be weighed. The armed forces depend on a
command structure that at times must commit men to combat…speech that
is protected in the civil population may nonetheless undermine the
effectiveness of response to command. If it does, it is
constitutionally unprotected.[44]
There is one generality that can be made about the case law reviewed
thus far. The speech under scrutiny was not a product an environment
equal to that found in the Digital Age of the 21st Century. Keeping
the Supreme Court precedents in mind, critically evaluate the
scenarios to be reviewed in the Part IV.
Part III- Whose War is it?
A. The Media
In addition to increased access to communication technology, the
second focus of this article, the Embedded Media program, presents
other nuances to the free speech debate for service members. There
were more than 700 officially embedded media personnel covering U.S.
forces in Iraq at the onset of the war in March, 2003.[45] Embedded
reporters, or "embeds," remained a fixture there almost two years
after major combat operations in Iraq ceased and the reconstruction
phase of the operation began.[46]
The media has not always had a cooperative relationship with the
military. Throughout the twentieth century, the media had access to
the troops, logistical support and freedom from censorship, but never
all at the same time. A brief review of the evolution of
military-media relations will reveal just how radical the Embedded
Media Program is.
During the first half of the twentieth century, the media had wide
ranging access to troops on the battlefield. War correspondents, like
Ernie Pyle in World War II became iconic media figures. Their
reports were free of government censorship. Uncensored wartime press
coverage reached even greater audiences during the Vietnam War with
the advent of television. During Vietnam, the media's critical slant
of government actions was compounded by the visual coverage of the
war's casualties. This became the catalyst that turned social
sentiment against the war effort. It was personified in the massive
anti-war demonstrations of the 1960s. In response to the media's
influence over public opinion, the government became increasingly
distrustful of the press and made policies that extremely limited its
future access to U.S. troops in combat, beginning with the 1983 U.S.
invasion of Grenada. This antagonistic relationship between the
media and the military would endure for forty years.
The Iraqi War marked a significant reversal in government policy
toward the media. The creation of the Embedded Media Program
reintroduced elements of the unrestricted reporting that was present
during the Vietnam era. The difference, according to Secretary of
Defense Donald Rumsfeld, was that the program would forge a
cooperative relationship between the military and the media, an
allusion to the combative relationship that spawned from the Vietnam
experience. [47]
War correspondents in the Iraq War have two distinct advantages that
have never before been present on the battlefield simultaneously,
making this war an unprecedented event for the media. The first is
the advanced satellite systems that allow for an instantaneous global
feed of information. The second is the absence of government review
of media content, a standard procedure during military operations in
the anti-media environment that marked the early twentieth century
period and followed the Vietnam War. The media has both technology
and the military on its side for the first time during the Iraq
War. Embedded journalists were once again able to cover the Iraq War
in the manner of Vietnam correspondents who hitched helicopters into
the nearest firefight. The Vietnam War was the only military
conflict that came close to providing the freedoms that journalists
now have with the military. Forty years later the technology of
satellite telephony and television made it possible to file reports
"live from the battlefield". [48]
In military conflicts since the Vietnam War up until Operation
Enduring Freedom in Afghanistan, limited technology and government
censorship were the filters between the battlefield and the American
public. In the Iraq War, however, access to improved methods of
communication and the Embedded Media program give members of the
military unfiltered access to the public. Two revolutions in media
have made this possible: personal communication devices, such as
satellite telephones and Internet services, and the Embedded Media
program, which placed journalists and broadcasters on the battlefield
reporting live and uncensored during combat operations. The result is
a breeding ground for new First Amendment battles.
B. The Service Member
In cases where service members challenged the military's authority
that squelched their speech, the U.S. Supreme Court ruled that First
Amendment protections are subordinate to the nation's compelling
interest to maintain security and the good order and discipline of
military forces. But the Digital Age presents a new set of
circumstances and redefines the paradigm in which the Court makes decisions.
For example, the incident Army Staff Sergeant A.J. Dean's
contemptuous speech about his senior military leadership[49] is a
scenario in which the Digital Age influenced free speech for service
members. The following scenarios all occurred since the 1992 Persian
Gulf War and were as recent as the current Iraq War. Considering what
has already been discussed – Supreme Court precedents, the U.C.M.J.,
and civilian superiority to the military – each of the following
scenarios contains elements that are of interest to the First
Amendment scholar, the journalist, the soldier and the citizen.
The following examples come from the front lines of the most recent
First Amendment battles for the speech of service members. These are
not all inclusive of every situation where involving the speech of
U.S. service members, however they are representative of the degree
to which communications technology and embedded media have influenced
the debate.
1. The Battle over Blogs
An example of one such circumstance that the Court did not have to
consider in previous rulings about First Amendment rights of service
members is "blog" technology.[50] Blogs, a shorthand term for web
logs, consist of online postings by individual Internet users. The
messages are presented in a diary-like format and available for other
Internet users to view. Many blog sites allow readers to post reply
messages. The result is an online record of messages from various
users. During the War on Terror, some military service members used
the blog format to chronicle their wartime experiences, a venture
inconceivable just ten years earlier during the Desert Storm and
Desert Shield operations when personal Internet use was not readily
available to the average service member.[51]
Army Specialist Colby Bizzel "blogged" his daily accounts of the
Iraqi War while stationed in the Middle East for several months in
2004. He called his blog "My War." In it he described the daily
routine and experiences of life in his infantry unit. Bizzel's
superior officers, who at first encouraged the endeavor, quickly
ordered him to cease operation of the blog when postings evolved from
accounts of daily life to more sensitive information about
operational maneuvers. Bizzel received a verbal reprimand and was
prohibited from participating in unit operations for four days
following the censure of his blog. His senior leaders defended their
actions arguing that Bizzel's speech posed a threat to his unit's
operational security.[52]
2. A Sergeant Speaks the Hard Truth
Army Reservist, Sergeant Al Lorentz, was deployed to Iraq in support
of Operation Iraqi Freedom and is a specialist in civilian affairs
for the military. An article he authored, entitled "A Sergeant
Speaks the Hard Truth," was posted on the Internet site of Soldiers
For The Truth in September, 2004.[53] In his article, Lorentz
describes the reasons why he believes the U.S. cannot win the war in
Iraq. Lorentz's laments were featured by syndicated columnist and
decorated Vietnam Veteran David H. Hackworth. In an October 2004
article on the Internet site, Military.com.[54] Hackworth reported
that Sgt Lorentz "now faces disciplinary action for 'disloyalty' and
'insubordination'" as a result of his article. Hackworth was the
only source to report that Lorentz could receive up to 20 years in
confinement if convicted.[55]
"I have come to the conclusion that we cannot win here…Instead of
addressing the reasons why the locals are becoming angry and
disconnected, we allow politicians in Washington D.C. to give us pat
and convenient reasons that are devoid of any semblance of reality
…Because the current administration is more concerned with its image
than it is with reality, it prefers symbolism to substance: soldiers
are dying here and being maimed and crippled for life. It is tragic,
indeed criminal that our elected public servants would so willingly
sacrifice our nation's prestige and honor as well as the blood and
treasure to pursue an agenda that is ahistoric and un-Constitutional."
A basic Internet search of Lorentz's article reveals that it has
been re-posted on at least a dozen other web sites, including blog
sites that invite other members of the military to comment on his article.[56]
The example of Army Staff Sergeant A.J. Dean, who criticized the
military leaders in an interview with the media, but was not
punished, reflects the subjectivity prevalent in the military justice
system.[57] He was quoted in a Knight-Ridder article questioning the
competence of his commanders and the trustworthiness of the Secretary
and Deputy Secretary of Defense, the members of his chain of command.
Dean's chain of command had the authority to punish him if, in their
opinion, his speech was detrimental to the good order and discipline
of his unit or a threat to national security.[58] There is no
military record explaining the rationale for why no disciplinary
action was taken against him.
3. Abu Graib prison scandal results in gag order for service members
Army Sergeant Samuel Provance deployed to Iraq in support of
Operation Iraqi Freedom and served as a prison guard at the infamous
Abu Graib prison in northern Iraq during 2004. [59] An embarrassing
prisoner abuse scandal involving numerous U.S. Army soldiers took
place at Abu Graib in 2003 and 2004. American service members
allegedly used cruel interrogation tactics and fostered a prison
environment of mistreatment toward Iraqi prisoners of war. Provance
worked at the jail during the time of the alleged abuses, but was not
named in the party of accused military personnel. When the scandal
first surfaced and in the month that followed, the media in Iraq
focused intensely on the prison and the Americans who manned
it. Provance and other soldiers were advised by their chain of
command not to discuss the scandal with the media. He disregarded
this and made statements to the press about what he said he heard
while working at the Abu Graib prison. In response to his
insubordination, Provance's commanders suspended his security
clearance and reassigned him to work in a warehouse despite his
special skills as an intelligence analyst. His commanders admitted
that they "weren't sure he broke any rules, but they told him they
thought he was a threat to the unit's mission"[60] and therefore
could not continue to work in the prison.
4. Major General Forced Into Retirement for Slandering President
Air Force Major General Harold Campbell, who served as the head of
the Air Force Materiel Command in 1993, publicly denounced during a
military banquet the then-President Clinton as a "gay-loving,"
"pot-smoking," "womanizing," and "draft-dogging" commander in
chief. Campbell received a reprimand and was forced into an early
retirement.[61]
5. David and Goliath: A Sergeant takes on the Secretary of Defense
Army Sergeant Felipe Vega, a soldier who served in the 3rd Infantry
Division in Iraq during 2003, was one of a group of soldiers
interviewed by a national news network embedded in Iraq with U.S.
military forces. He said, on camera, that he felt "'slapped in the
face' and 'kicked in the gut' because his unit's tour in Iraq was
extended."[62] Another soldier, who was part of the same interview,
said on camera that he would like to ask for Defense Secretary Donald
Rumsfeld's resignation. Although, the U.C.M.J. clearly prohibits
"using contemptuous speech against …senior government officials",
Sergeant Vega and the other soldiers involved in the interview were
not punished for their insubordinate and critical speech about their
chain of command.[63]
6. Air Force Isn't Laughing at Lieutenant Colonel's "Joke"
The Monterey County Herald in northern California published a letter
to the editor in 2002 from Air Force Lieutenant Colonel Stephen L.
Butler in which Butler ridiculed President Bush, calling him a
"joke." Butler accused the President of "failing to act to prevent
the September 11th terrorist attacks"[64] The letter was riddled with
expletives including "sleazy" and "contemptible." As a result,
Butler was fired and reassigned from his prestigious position as the
vice chancellor for student affairs at the Defense Language
Institute. Additionally, reports of the incident said that the Air
Force contemplated, but never initiated, charges that would have
resulted in courts-martial proceedings.[65]
7. Be careful what you ask for
In 2004 and 2005, the National Endowment for the Arts (NEA) sponsored
a nation-wide campaign, called "Operation Homecoming," to compile
writings from military service members who served during Operations
Enduring and Iraqi Freedom and their family members. The goal of the
program, according to the NEA, is to ensure that the personal
experiences of the War on Terror are not lost. All submissions are
entered into the Library of Congress and a selected number of the
submissions are being compiled into an anthology for publication in
late 2005. A spokesperson for the program said the only materials
that would not be published were those that contained sensitive or
confidential material that would endanger future military operations.[66]
8. Fahrenheit 9/11 puts Marine Reservist in spotlight
Marine Lance Corporal Abdul Henderson, who is a decorated war
veteran from the initial phase of Operation Iraqi Freedom, was
interviewed in the 2003 Michael Moore documentary Fahrenheit
9/11. The now infamous interview took place on the steps of the U.S.
Capitol with Henderson in his uniform stating that he would not
return to Iraq if his unit redeployed. The film received worldwide
acclaim, putting the spotlight on Henderson as the personification of
anti-war sentiment among U.S. military ranks. After the film's
release, Henderson was interviewed numerous times and restated his
firm opinion that he disagreed with the U.S. invasion of Iraq. The
Marine Corps opened a preliminary legal inquiry to investigate
whether his speech violated the regulations in the U.C.M.J, but
Henderson was never charged with any violations.[67]
IV. Conclusion
It is excessive to assume that taking the military oath is an
automatic abrogation of one's individual rights. Likewise, it is
impractical to expect that the U.S. military, which remains the most
powerful in the world today, can retain its stability if its members
are given free reign to comment and act in an insubordinate
manner. The medium between these two extremes, much like the middle
ground found in many First Amendment arguments, cannot be an
absolutist interpretation of the First Amendment. Nor can it mean
relinquishing all authority to the military. Indeed, the Constitution
itself provides evidence for both these arguments, thereby making it
impossible to use one alone.
Ensuring a balance of military structure and individual freedoms is
even more important now in a time of military conflict and rapidly
changing technological advances, as was demonstrated previously with
the examples of contentious speech by service members. The key is
balancing the military mission with the principles of the First Amendment.
Part II of this article reviewed the foundation, structure, and
nature of the military justice system. It explained the Supreme Court
rationale behind precedents that favor restrictive approaches to the
speech of service members. It reviewed the seminal case and
subsequent rulings where the Court's reasoning is prevalent. It also
discussed the criticisms of the judiciary's hands-off approach to
oversight of the military system.
Part III, section A discussed the influence of Embedded Media on the
battlefield to the free speech debate. While the role of the
embedded correspondent as it pertains to access and privilege is
beyond the scope of this paper, it is important to note, for the sake
of this argument, that journalists facilitate speech for service
members in far off combat zones.
Section B offered examples of recent incidents when service members
expressed themselves about military and government policy, their own
military experiences, and their opinions of government and military
leaders. The content of their speech possibly violated the
regulations within the U.C.M.J. The purpose was not to highlight the
indiscretions of service members, but to reveal the subjectivity of
the military justice system, which has not consistently regulated
speech. These incidents were possible because of access to
technology and a greater media presence on the battlefield.
The authority for the executive and legislative branches to regulate
the Armed Forces is found in the U.S. Constitution, including the
power to create a military system of justice. Within the U.C.M.J
there exist specific restrictions against the type of speech that is
deemed harmful to good order and discipline and national
security. But just as service members are subject to the regulations
of the U.C.M.J., they are simultaneously afforded the protections of
the Bill of Rights. The latter provides protections for speech and
expression that contradict some U.C.M.J. regulations.
In the review of the Constitutional provisions that assign authority
to the executive and legislative branches, the necessity of a
separate military justice system is obvious. There is, however, a
void when one examines how judiciously this independent system of
regulations, courts and judges settles First Amendment
challenges. The unique community that comprises the U.S. military
remains more conservative and restrictive than its civilian counterpart does.
This tension between the discipline of the Armed Forces and the
democratic market place of ideas that is unique to the U.S. system of
government is facing new challenges. Access to technology and the
media's direct access to troops create an environment that challenges
the tenets of past Supreme Court decisions on military speech. As
the battlefield becomes more sophisticated, so do its soldiers who
have available to them personal communication devices like cellular
phones and wireless Internet. Likewise, they are surrounded by a
media whose job it is to report the war, a task that undoubtedly
means talking to the troops who are fighting it. The compounded
effect of service members' gaining access to communication devices
and the media regaining access to the battlefield redefined the
free-speech battle for service members.
The future of this debate can be influenced positively by education
of both the journalists covering war and the service members fighting
it. The rights and responsibilities of both the soldier and the
journalist should become an integral portion of basic training for
enlisted service members and a critical component of officer
training. These principles should saturate the ranks so service
members understand the limits by which they are bound, the reasons
supporting the regulations, and the rights they can still
exercise. Otherwise, a military devoid of education on this issue is
akin to a blind, but passionate soldier unaware of the battle
surrounding him. Likewise, journalists must understand the
boundaries by which they report and gather information. Getting the
scoop from a soldier at the expense of that service member's career
or the national security serves no other purpose but that day's
deadline. A loss of trust in the media could easily turn access into
restriction in the manner that military-media relations soured after
Vietnam. The press must weigh its duties carefully, but the issue at
hand is clear. The modern battlefield of the Digital Age offers a
dynamic that can only ignored at the expense of long-range, symbiotic
military-media relations. In the end, education is the
solution. After all, both serve the same master: the U.S. Constitution.
[1] Brian McNair, The Iraq War as Seen in Britain: UK Satellite
Coverage, TRANSNATIONAL BROADCASTING STUDIES JOURNAL 10, (2003),
available at http://www.tbsjournal.com/Archives/Spring03/nair.html
(last visited Dec 8, 2004).
[2] PUBLIC AFFAIRS GUIDANCE (PAG) ON EMBEDDING MEDIA DURING POSSIBLE
FUTURE OPERATIONS/DEPLOYMENTS IN THE U.S. CENTRAL COMMANDS (CENTCOM)
AREA OF RESPONSIBILITY (AOR), Feb 10, 2003. available at
www.findlaw.com (last visited Dec 9, 2004).
[3] DAVID S. WESTOVER, JR. INTERPRETING THE EMBEDDED MEDIA
EXPERIENCE: A QUALITATIVE STUDY OF MILITARY-MEDIA RELATIONS DURING
THE WAR IN IRAQ 27-40 (2004) (unpublished manuscript, on file with
the University of Florida).
[4] Id.
[5] Supra note 2. "The Department of Defense (DOD) policy on media
coverage of future military operations is that media will have
long-term, minimally restrictive access to U.S. Air, Ground, and
Naval forces through embedding… We need to tell the factual story –
good or bad- before others seed the media with disinformation and
distortions, as they most certainly will continue to do. Our people
in the field need to tell our story – only commanders can ensure the
media get to the story alongside the troops. We must facilitate
access of national and international media to our forces, including
those forces engaged in ground operations, with the goal of doing so
right from the start. To accomplish this, we will embed media with
our units. These embedded media will live, work and travel as part
of the units with which they are embedded to facilitate maximum,
in-depth coverage of U.S. forces in combat and related
operations. Commanders and Public Affairs officers must work
together to balance the need to media access with the need for
operational security."
[6] Uniformed Code of Military Justice, 10 U.S.C.A.
[7] United States Military Oath. "I (state your name) do solemnly
swear to support and defend the Constitution of the United States of
America against all enemies foreign and domestic, and to obey all
orders of the President of the United States and those officers
appointed over me, and that I will follow the regulations of the
Uniformed Code of Military Justice, so help me God."
[8] Tom Lasseter, Among Troops, Growing Doubts About Mission,
Leaders Who Sent Them, Knight-Ridder, July 21, 2004 available at
http://www.commondreams.org/headlines04/0721-01.htm (last visited on
Dec 10, 2004).
[9] Id.
[10] Id.
[11] Schenk v. United States, 249 U.S. 47 (1919).
[12] U.S. Const. Art. I, § 8, cls. 11-13.
[13] Id. art. II, § 2, cl. 1.
[14] The colonists who founded the United States adopted the British
Articles of War without alteration. Six significant revisions were
made between 1776 and 1920. E. Byrne, Military Law 8 (3d ed. 1981).
[15] There are seven articles in the Uniform Code of Military
Justice that specifically restrict speech. The following are
prohibited: 1) Commissioned officers from using contemptuous words
against the President and other senior civilian government officials;
2) Any person from behaving with disrespect toward a superior
commissioned officer; 3) Insubordinate conduct (speech) toward a
warrant officer, noncommissioned officer or petty officer; 4) Willful
disobedience of an order or regulation; 5) Persons from making
provoking or reproachful speeches or gestures towards other persons
subject to the UCMJ; 6) Conduct unbecoming an officer; 7) Conduct
prejudicial to the good order and discipline of the armed forces, or
that will bring discredit upon the service. See 10 U.S.C., para
801-904 (1970), Articles 88, 89, 91, 92, 117, 133, and 134, respectively.
[16] Id.
[17] U.S. Const. Art I.
[18] Department of Defense Directive 1325.6 par. II (Sept. 12,
1969). Reprinted in Conscience and Command 283 (J. Finn ed. 1971).
[19] Unlike the court-martial system, non-judicial punishment is not
carried out in the military courts system, but is rather a
unit-centered authority. Punishments given at NJP are limited by the
U.C.M.J. and do not hold any criminal applicability in the civilian
judicial system the way a court-martial conviction would. See
U.C.M.J. 10 U.S.C.
[20] U.C.M.J. art. 67, 10 U.S.C. § 867 (1982).
[21] Burns v. Wilson, 346 U.S. 137 (1953).
[22] Schenk v. United States, 249 U.S. 47, 52 (1919).
[23] Id.
[24] Dennis v. United States, 341 U.S. 494
[25] Brandenburg v. Ohio, 395 U.S. 444 (1969).
[26] Brandenburg v. Ohio, 395 U.S. 444, (1969), 447.
[27] Homer E. Moyer, Justice and the Military (Washington, D.C.:
Public Law Education Institute, 1972) at 791.
[28] Burns v. Wilson, 346 U.S. 137 (1953).
37In the 30 years since Parker, the Court's reasoning has been cited
in the majority of subsequent cases and secondary materials involving
First Amendment rights for military personnel.
[29] United States v. Voorhees, 4 U.S.C.M.A. 509.
[30] United States v Voorhees, 4 U.S.M.A 509, C.M.R. 83 at 105 (1954).
[31] Parker v. Levy, 417 U.S. 733 (1974).
[32]
[33] U.C.M.J. art. 133, 10 U.S.C. § 933 (1982).
[34] Id. art 134, 10 U.S.C. § 934 (1984).
[35] Parker, at 761.
[36] See Keyishian v. Board of Regents, 385 U.S. 589 (1967).
[37] Parker at 759.
[38] KENT R. MIDDLETON, WILLIAM E. LEE, BILL F. CHAMBERLIN. THE LAW
OF PUBLIC COMMUNICATION 37-38 (Pearson 2005).
[39] Parker at 758.
[40] Challenges to constitutionality of a law require an analysis of
strict scrutiny examining the potential for overbreadth and
vagueness. In order to be deemed constitutional against the
overbreadth standard, a statute must meet the conventional
application of strict scrutiny. The statute must be tailored in such
a specific and narrow manner that is does not create a chilling
effect on expression. See Shelton v. Tucker, 364 U.S. 479
(1960). In establishing whether or not a statute is overly vague,
clear guidelines are required for law enforcement personnel. See
Smith v. Goguen, 415 U.S. 566, 573 (1974).
[41] Parker at 758.
[42] United States v. Howe, 17 U.S.C.M.A. 165, 37 C.M.R. 429 (1967).
[43] Articles of War, 1775. For further information on how the rule
of civilian supremacy was applied see Howe, 17 U.S.C.M.A. 165, 37
C.M.R. 429 (1967).
[44] United States v. Priest, 21 U.S.C.M.A. 564, 16 C.M.R. 338, 343 (1972).
[45] Brian McNair, The Iraq War as Seen in Britain: UK Satellite
Coverage, TRANSNATIONAL BROADCASTING STUDIES JOURNAL 10, (2003),
available at http://www.tbsjournal.com/Archives/Spring03/nair.html
(last visited Dec 9, 2004).
[46] Embedded Reporters: What Are Americans Getting? (A report by
the Project For Excellence in Journalism) available at
http://www.journalism.org/resources/research/reports/war/embed/numbers.asp
(last visited Dec 9, 2004).
[47] Supra note 2.
[48] Id.
[49] See supra note 13.
[50] Other Internet blogs about the war in Iraq as of Dec 10, 2004:
CBFTW's 'My War' Blog ; Army Capt. Eric Magnell's 'Dagger Jag' Blog ;
A Line in the Sand ; Iraq the Model ; Live From Iraq ; The Questing
Cat ; Iraq & Iraqis ; Iraq Calling ; The Green Side ; Doc in the Box
; Hard Deck ; American Soldier ; The Mesopotamian ; Baghdad Burning ;
Road of a Nation ; Kurdo's World ; Hammorabi ; Healing Iraq.
[51] Eric Niller, Soldiers Iraq Blogs face Military Scrutiny
(National Public Radio broadcast, Aug 24, 2004) available at
http://www.npr.org/templates/story/story.php?storyId=3867981 (last
visited Dec 9, 2004).
[52] Id.
[53] Sgt Al Lorentz, A Sergeant Speaks the Hard Truth, Soldiers For
the Truth, September 30, 2004 available at
http://www.sftt.org/cgi-bin/csNews/csNews.cgi?database=Special+Reports.db&command=viewone&op=t&id=312&rnd=170.60198714347413
(last checked on Dec 10, 2004).
[54] David H. Hackworth, Hackworth: Muzzling Soldiers Is Nothing
New, Military.com, October 12, 2004 available at
http://www.military.com/Opinions/0,,Hackworth_101204,00.html?ESRC=dod.nl
(last checked on Dec 8, 2004).
[55] Several attempts were made to contact Sgt Lorentz via an email
address he listed in his article, but those attempts were
unsuccessful. As of Dec 12, 2004 there is no current military
judicial record of Lorentz pending a courts-martial offense of any kind.
[56] A Google search of the World Web on Dec 10, 2004 found 13
different web sites that have posted Sgt Al Lorentz's article A
Sergeant Speaks the Hard Truth.
[57] Tom Lasseter, Among Troops, Growing Doubts About Mission,
Leaders Who Sent Them, Knight-Ridder, July 21, 2004 available at
http://www.commondreams.org/headlines04/0721-01.htm (last visited on
Dec 10, 2004).
[58] See U.C.M.J., 10 U.S.C.
[59] Army's Freedom of Speech is Different From Civilians, Army
Times July 26, 2004.
[60] Army's Freedom of Speech is Different From Civilians, Army
Times July 26, 2004.
[61] No Court-Martial, The Army Times, July 24, 2002.
[62] Id.
[63] Id.
[64] Id.
[65] Two years after the incident there is no record of Lt. Col
Butler receiving a court-martial as a result of the incident. Any
non-judicial punishment he may have received was not available in the
public record. Id.
[66] Seth Hettena, Writings Reveal War Through Troops Eyes,
Associated Press, Dec 11, 2004 available at
http://story.news.yahoo.com/news?tmpl=story&u=/ap/20041211/ap_on_re_us/operation_homecoming
(last checked on Dec 11, 2004).
[67] Gary Strauss, Fahrenheit soldier in hot water?, USA Today July
28, 2004 available at
http://www.usa.today.com/life/mois/news/2004-07-28-fahrenheit-marine_x.htm
(last checked on Dec 9, 2004).
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