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Just about everyone today has some kind of social media account such as Facebook, Instagram, a personal blog or other online presence. There are limitations though on service members’ speech beyond limitations established over time by First Amendment jurisprudence. In other words, speech that is protected by the First Amendment in a civilian context may be prohibited in the Armed Forces when it undermines good order and discipline or discredits the military in some way. Limitations are often context-dependent.
The Court of Appeals for the Armed Forces has defined unprotected speech in the military as “that which interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission or morale of the troops.” This is a sweeping definition that can implicate many kinds of speech and other online conduct. Just because you are in “civvies” or “off duty” does not make your speech protected.
The foundational principles for the regulation of online speech of military members were established long before the invention of the internet. In 1968, a second lieutenant in the Army participated in a Vietnam War demonstration in civilian clothes, which was broadcast on the local news, wherein he carried a sign that read, “Let’s have more than a choice between petty ignorant fascists …” on one side and, “End (President) Johnson’s fascist aggression …” on the other side. The lieutenant was recognized as a military member by a military policeman at the rally due to his Army LT emblem on his personal vehicle. The lieutenant was later convicted at a court martial for using contemptuous words against the president and for conduct unbecoming an officer. He was sentenced to dismissal, total forfeitures of pay and allowances, and confinement at hard labor for two years, later reduced to one year.
In an early case involving online speech in 2010, a U.S. Marine Corps sergeant was administratively separated with an other-than-honorable discharge after he posted on Facebook, “Screw Obama. I will not follow all orders from him.” Service members are allowed to express personal opinions and beliefs in a private context, but when those sentiments are broadcast on a public platform to others in a way that can undermine good order and discipline or hurt the military’s reputation, a service member may be subject to disciplinary action as a result of their speech.
Service members can also be held responsible when their speech or other conduct is shared or reposted by others, with or without their permission. For example, in 2012 an Army corporal was recorded attending a political rally in his duty uniform. He later received a letter of reprimand, which was filed in his official military file, for violating Department of Defense Directive 1344.10, which prohibits service members from attending partisan political events as an official representative of the armed forces, which is implied by wearing your uniform.
So before posting, tweeting or sharing, ask yourself:
- Will this reflect poorly on the military?
- Will my words be seen as disrespectful towards fellow service members or my chain of command?
- Could this content be interpreted as a threat or encouragement to disobey lawful orders?
- Could this content undermine operations security or constitute “spillage” of classified information?
Specific legal advice can be obtained from your local military legal assistance office. General information on a variety of legal topics is available in the newsletters issued by the 21st Theater Sustainment Command Office of the Staff Judge Advocate, available at www.eur.army.mil/21tsc/SJA.asp and https://aflegalassistance.law.af.mil.
