This backdrop illustrates a throughline that runs throughout, and creates tension within, the Military Justice system. On the one hand, there is a need to protect the individual rights of servicemembers. This concern is driven (in part) by the intuition reflected in Judge O’Connor’s opening sentences—those sworn to protect constitutional liberties should surely enjoy the benefits of that which they protect. On the other, individual rights protections must yield, to some degree, to the needs of military life and military exigency. Of course, "to some degree" is the space in which debate and maneuverability resides. But while discretionary space certainly exists (resting first and foremost with Congress), from World War I onward reform efforts have moved decidedly toward greater individual rights protections.
Generally, and given that decided trend, staking out a position arguing for limitations on the constitutional rights of American citizens is not a likely landing spot—nor is it a drop zone into which I thought I would ever fall. Moreover, the suggestion that servicemembers' constitutional protections (those they work tiredly to protect) should be curtailed may seem like a perversion of the normal American course. But in the context of freedom of speech and expression, that is precisely what this Note seeks to accomplish. This is not an argument for increased curtailment. Rather, in the face of frequent criticism, it offers a defense of a doctrine as currently constituted, and a call for heightened awareness and enforcement given modern challenges.
By way of comparison, before turning to its application to Military Justice, Part I provides an overview of freedom of speech jurisprudence in the civilian context. Part II delineates the constitutional tradition of a politically neutral military. In a world in which these lines are increasingly blurred, this foundational principle—inherent in a military speech doctrine that is grounded in text, history, structure, and precedent—bears reemphasis in the modern First Amendment context. Part III closes with a recent case study, representing an instance in which a servicemember was exposed to penalties for conduct and speech that would be fully protected had he been a civilian. This Part demonstrates the modern (pragmatic) need for Uniform Code of Military Justice (UCMJ) speech restrictions, backed by a doctrine already well-grounded in constitutional principles. The Note concludes with a nod toward the many vitally important legal protections that servicemembers do enjoy, but it calls for military leadership to police the boundaries of UCMJ violations given modern challenges. Freedom of speech rightly occupies a cherished place in any democracy; in the U.S. it represents a "fixed star in our constitutional constellation." But as throughout history, in modern Military Justice that star does—and should—lose some of its shine.
The First Amendment and Military Justice: Threats to Political Neutrality,
Notre Dame L. Rev. Reflection
Available at: https://scholarship.law.nd.edu/ndlr_online/vol98/iss2/3