Free Speech in the Military Community:

Striking a Balance Between Personal Rights

and Military Necessity

# [Captain John A. Carr, USAF\*]{.smallcaps}

> The United States government should not engage in foreign wars for the
> purpose of protecting access to crude oil, and if soldiers are asked
> to participate in such a war they should refuse to fight. Women should
> never be permitted in a combat zone, but maybe homosexual men should
> not be discharged. President Clinton's handling of Bosnia proves that
> he is incompetent to lead the military; he's a draft-dodger anyway.
> Someone should tell Congress that it ought to give airmen a pay raise
> instead of wasting money on-base beautification projects.[^1]

If a civilian read aloud the preceding statement in Lafayette Park, the
government would almost undoubtedly be without the authority to sanction
him. But what if the speaker was a civilian shouting outside the gates
of Andrews Air Force Base? The Chief-of-Staff of the Air Force
addressing a banquet hall full of military personnel? An airman speaking
to fellow airmen in his dormitory? A lieutenant in a letter to the
editor of the *Air Force Times*? Does the Uniform Code of Military
Justice (UCMJ) prohibit these statements or does the military member
have a First Amendment free speech right? When should a commander be
advised to initiate actions against a member and what type of sanction
should be imposed?

The First Amendment's freedom of speech clause[^2] has long posed unique
challenges to the military community. Active duty military members are
subject to the Uniform Code of Military Justice[^3] that limits not only
conduct, but also certain forms of speech. It seems obvious that First
Amendment protections will be applied to military personnel in a
different manner, but the more perplexing challenge is to define the
exact boundary of that protection; if, in fact, any boundary actually
exists.

The most intense period of the military free speech debate was sparked
by the United States involvement in the Vietnam War. With the initiation
of the draft, thousands of unwilling and educated conscripts were
"shocked by military practices that had never been seriously
questioned."[^4] Not wholly by coincidence, this turmoil occurred as the
Supreme Court was articulating the fundamental principles underlying
First Amendment doctrine. However, the Supreme Court and the military
courts of review refused to apply this new line of precedent to the
military community, reasoning that the unique nature of the military as
a "separate community" necessitated a different application of First
Amendment principles.

As the furor over the Vietnam War subsided, scholars attempted to refine
earlier examinations[^5] of the "separate community" rationale.[^6]
While many authors questioned the wisdom of granting the military a near
*carte blanche* to define what constitutes a "clear and present danger"
to military order and discipline, the courts consistently deferred to
the military's exercise of delegated authority. The lull in the storm
during the Reagan military build-up of the early 1980's[^7] was
interrupted by the Supreme Court's decision in *Goldman v.
Weinberger*[^8] and recent academic examinations have focused almost
exclusively on the First Amendment vulnerability of the so-called "Don't
Ask, Don't Tell" policy.[^9]

The Department of Defense has changed dramatically since the Vietnam
War. The all-volunteer force has replaced the draft. With the
democratization of the former Soviet Union and the stand-down of U.S.
nuclear forces, military personnel are currently assigned to
peacekeeping missions across the globe. Additionally, while courts
continue to distill the free speech rights of government employees,[^10]
federal civil servants,[^11] and independent contractors,[^12] the
government is privatizing thousands of positions formally held by
uniformed personnel.[^13] In the end, however, the military's mission
remains the protection of the national security interests of the United
States through the use of force. Given these dramatic transformations
and the continued development of First Amendment doctrine, this article
has two purposes.

Part I of the article examines the courts' resolution of free speech
challenges to UCMJ prosecutions and administrative actions. First, the
arguments supporting judicial deference to government authorities are
introduced. Judicial deference has been justified on the grounds that
the Constitution entrusts the regulation of the military to the
Legislative and Executive branches. Additionally, courts have noted the
lack of judicial competence to review the impact of a particular threat
to the unique mission of the military community. Second, the cases in
which free speech challenges have been made to either UCMJ prosecutions
or administrative actions are profiled. For the purposes of this
discussion, the restrictions on the speech of military personnel are
divided into three categories. The first category consists of the
specific Articles of the Uniform Code of Military Justice. The second
level includes the regulations promulgated by the Department of Defense
and the Air Force. The lawful orders of specific commanders comprise the
third set of restrictions.

An examination of the applicable case law in each category illustrates
that courts continue to exhibit substantial deference to the judgment of
military commanders concerning the threat to military interest posed by
certain types of speech. When the free speech challenges of military
personnel are reviewed under traditional First Amendment doctrine---a
rare occurrence---the courts have found that the restrictions are
permissible because the military's interests are substantial and
unrelated to the suppression of free expression. It appears, therefore,
that the military may impose restrictions on the speech of military
personnel whenever the speech poses a significant threat to discipline,
morale, esprit de corps, or civilian supremacy. While this formulation
may seem severe when contrasted to civilian protections, Congress and
the President have established official channels to permit
servicemembers to voice dissent without the fear of retaliation.
Additionally, the Department of Defense and the Air Force have enacted
regulations that protect certain types of speech. The lack of successful
free speech challenges to personnel actions is a testament to the
responsible use of this discretion by military commanders.

Part II of the article reexamines the arguments both for and against
affording military personnel greater free speech protections. The
evaluations of these arguments serve not only to support the judiciary's
continued treatment of the military as a separate community, but also to
provide legal advisors relevant factors to consider when making
recommendations to commanders. Additionally, a commander's ability to
protect the military's interests from the threats posed by the speech of
civilians and government employees is canvassed.

Finally, arguments are presented to refute the suggestions that courts
should adopt either the traditional civilian First Amendment doctrine
or, at least during peacetime, the protections afforded government
employees and federal civil servants. Courts should not adopt either
standard because of the intrusive nature of the inquiry and the need for
the military to impose criminal sanctions in certain circumstances. To
the extent that the protections differ, however, legal advisors should
recommend as a general rule that military members be afforded the same
First Amendment protections provided government employees. Criminal
sanctions should be sought in situations when a substantial breakdown in
military custom is likely or the threat to military interests is greater
than would be posed by a similarly situated government employee.

# **I. REGULATION OF SPEECH IN THE MILITARY**

When confronted with Constitutional challenges to military regulations
or criminal prosecutions, courts have displayed a substantial amount of
deference to government authorities for two related reasons. The first
reason is the responsibility imposed by the Constitution on the
Legislative and Executive branches to administer the military.[^14] The
second is the concept of the military as a "separate community." The
separate community rationale is based upon the unique military
mission,[^15] the critical importance of obedience and
subordination,[^16] and the complimentary development of military
custom.[^17] Based upon one or more of these characteristics, courts
confronted with free speech issues in the military context typically
refuse to apply the free speech protections afforded civilians or other
government employees, preferring to defer to the military's judgment of
the potential disruptive effect of the speech in question.

This judicial deference has both supporters and critics. Former Senator
Sam Nunn has written that the "Supreme Court's jurisprudence in the
field of military law has been characterized by the highest degree of
deference to the role of Congress and respect for the judgment of the
armed forces in the delicate task of balancing the interests of national
security and the rights of military personnel."[^18] Others disagree,
choosing to depict the Supreme Court's treatment of the First Amendment
in the military context as "the area of most extreme judicial
abdication."[^19] It has been noted, however, that "the judiciary has
become more sensitized to violations of individual rights and the perils
of unchecked discretion."[^20] Recently, in fact, a number of judges
have taken exception to the military's exercise of discretion, citing
either outright abuse[^21] or selective enforcement.[^22]

Both courts and commentators have justified the judicial deference to
the military on the grounds that the Constitution vests the primary
responsibility for respecting the rights of servicemembers with the
Legislative and Executive branches. The Constitution gives Congress the
power to "raise and support Armies,"[^23] "provide and maintain a
Navy,"[^24] and "make Rules for the Government and Regulation of the
land and naval Forces."[^25] The President is designated as the
"Commander in Chief of the Army and Navy of the United States."[^26]
Given this division of responsibility, it has been argued that the two
branches have safeguarded the rights of service personnel while
protecting the readiness of the military. Senator Nunn explains that:

> \[A\] system of military and criminal and administrative law that
> carefully balances the rights of individual service members and the
> changing needs of the armed forces . . . has demonstrated considerable
> flexibility to meet the needs of the armed forces without undermining
> the fundamental needs of morale, good order, and discipline. The
> principles of judicial review developed by the Supreme Court
> recognizes the fact that over the years Congress has acted responsibly
> in addressing the constitutional rights of military personnel.[^27]

Others have challenged the courts' reliance on Congress and the
President to protect the rights of military personnel. Although
acknowledging the role played by the two co-equal branches of
government, Prof. Thomas Dienes concludes that this role "does not deny
the power and duty of the courts to protect the constitutional rights of
military personnel."[^28] He argues that the "military and its courts do
have special expertise regarding military needs, but the civilian courts
have a special competence and constitutional obligations in protecting
constitutional freedoms against government abuse."[^29]

Underlying the judiciary's cautious excursions into the realm of
military command are fears that courts lack the competence to contradict
the judgment of military experts. Chief Justice Earl Warren has
explained that the Supreme Court's deference to military determinations
is based upon the "strong historical" tradition supporting "the military
establishment's broad power to deal with its own personnel."[^30]
According to Warren, the "most obvious reason" for this deference is
that "courts are ill-equipped to determine the impact upon discipline
that any particular intrusion upon military authority might have."[^31]
The Supreme Court has alluded to the judiciary's lack of expertise to
review prosecutions based upon military custom. In *Parker v. Levy*, it
cited lower court opinions which held that the applications of military
custom are best determined by military officers who are "more competent
judges than the courts of common law."[^32] Additionally, in the
oft-quoted opinion of *Orloff v. Willoughby*, the Court expressly
adopted a hands-off approach to the military, stating:

> But judges are not given the task of running the Army . . . . The
> military constitutes a specialized community governed by a separate
> discipline from that of the civilian. Orderly government requires that
> the judiciary be as scrupulous not to interfere with legitimate Army
> matters as the Army must be scrupulous not to intervene in judicial
> matters.[^33]

While one may wonder how the Army could intervene in judicial matters
absent a siege of the Court, the opinion unmistakably endorses a
deferential attitude toward the military community based upon its unique
and "legitimate" needs.

When deciding constitutional or statutory issues in the military
context, the Supreme Court has emphasized the special characteristics of
the military community as a separate society. For example, the Court
reviewed the nature of and justifications for these characteristics in
*Parker v. Levy.*[^34] The Court stressed that it "has long recognized
that the military is, by necessity, a specialized society separate from
civilian society."[^35] This specialization is necessitated by the fact
that "it is the primary business of armies and navies to fight or be
ready to fight wars should the occasion arise."[^36] The Court noted
that "the military has, again by necessity, developed laws and
traditions of its own during its long history."[^37] Quoting from
previous opinions, it also reiterated that the army "is not a deliberate
body"[^38] and that "the rights of men in the armed forces must perforce
be conditioned to meet certain overriding demands of discipline and
duty."[^39] Furthermore, in order to "maintain the discipline essential
to perform its mission effectively, the military has developed what 'may
not unfitly be called the customary military law' or 'general usage of
the military service.'"[^40]

Whatever the significance of the separate community rationale, it has
not been seriously argued that the unique characteristics of the
military community negate entirely the free speech protections of the
First Amendment. In fact, neither the Supreme Court nor the military
courts of review have implied that the First Amendment is inapplicable
to members of the armed forces. In *Goldman v. Weinberger,* the Court
pointed out that the special demands of "military life do not, of
course, render entirely nugatory in the military context the guarantees
of the First Amendment."[^41] Chief Justice Earl Warren has written that
the Supreme Court recognizes the "proposition that our citizens in
uniform may not be stripped of basic rights simply because they have
doffed their civilian clothes."[^42] Additionally, the Court of Military
Appeals has stated that "the protections in the Bill of Rights, except
those which are expressly or by necessary implication inapplicable, are
available to members of our armed forces."[^43]

A few protections contained in the Bill of Rights are expressly made
inapplicable to military personnel by the very wording of the
Amendments. For example, the Fifth Amendment's Grand Jury provision
contains an exception for "cases arising in the land or naval
forces."[^44] Additionally, "a court-martial has never been subject to
the jury-trial demands of Article III of the Constitution."[^45] Other
provisions of the Bill of Rights, while applicable to the military, are
interpreted differently in the military context. For example, the Court
of Appeals for the Armed Forces (CAAF) has invoked the separate society
rationale to qualify the Fourth Amendment's search and seizure
protection.[^46] The question, therefore, is not *whether* free speech
protections are available to military personnel, but *to what extent*.

The search for an answer to this question commonly begins with an
examination of the original intent of the Framers. One scholar concludes
that the persuasive scholarship indicates the Founding Fathers
"envisioned a limited, if not non-existent, role for the first amendment
in the armed services."[^47] Senator Nunn has commented that
"\[d\]ifferences in constitutional rights between the armed forces and
civilian society have existed from the days of the Revolutionary War,
through the formation of the Constitution, to the present."[^48]
However, others have argued that reliance on history is misplaced and
that the Founding Fathers favored the militia to a standing army
precisely because of the restraints on civil liberties in the military
environment.[^49] Justice Stewart stated his belief that the dramatic
transformations in the size and function of the military justify a
departure from earlier holdings.[^50] Even Chief Justice Warren
acknowledged that the size of the military build-up during Vietnam and
the broad reach of the draft caused many to question the "wisdom of
treating the military establishment as an enclave beyond the reach of
the civilian courts."[^51]

The justifications for judicial deference to military authorities when
servicemembers bring constitutional challenges to criminal and
administrative prohibitions continue to be debated. A review of the
available case law indicates, however, that courts regard the military
as constituting a separate community that necessitates a distinct
application of First Amendment principles and protections. Consequently,
although military members have brought free speech challenges in a
variety of circumstances, they are rarely, if ever, successful.

The military may limit the speech of a military member through the
application of three levels of restrictions. The first level is
contained in the punitive articles of the Uniform Code of Military
Justice (hereinafter UCMJ), codified at 10 U.S.C. §§ 880-934. The second
level consists of the regulations of the Department of Defense and the
individual services. The third level includes the lawful general orders
of military commanders. These orders may take the form of base-wide
restrictions or may be directed at the conduct or speech of an
individual soldier.

The courts' evaluations of the speech restrictions imposed at each of
these three levels highlight a number of fundamental tensions that exist
when First Amendment challenges are made. How much free speech
protection should be afforded a military member? Does it matter that the
conversation occurred in a private setting or off-base? That the
conversations involved the discussion of political issues rather than
military issues, or addressed policy decisions still pending or orders
that have already been delivered? With these questions structuring the
following discussion, the free speech challenges to the military
restrictions will be examined in detail.

A.  **Legislative Restrictions**

The punitive articles of the UCMJ contain a series of provisions that
may restrict the service member's speech. A large number of the articles
have never been considered to intrude upon the First Amendment even as
applied to the civilian community.[^52] In these instances, such as
extortion and perjury, the crime involves speech in the most literal
sense. The speech is not, however, deemed to be within the coverage of
the First Amendment because it has "nothing to do with what the concept
of free speech is all about."[^53] Additionally, provisions such as
Article 116's sanction for breach of the peace[^54] and Article 117's
sanction for provoking speech or gestures[^55] closely parallel
categories of speech that are unprotected in the civilian sector. Even
Article 100's subordinate compelling surrender and Articles 89 and 91's
disrespect and insubordinate conduct prohibitions do not seem to raise
serious free speech challenges given the compelling government interests
at stake in each case.

Four articles, however, have prompted either serious judicial review or
academic scrutiny. Article 134 prohibits all disorders to the prejudice
of good order and discipline, conduct of a nature to bring discredit
upon the armed services and crimes and offenses not capital. Article 133
proscribes conduct unbecoming an officer and a gentleman. Article 92
makes punishable violations of lawful general orders or regulations,
specific lawful orders and dereliction of duty. Finally, Article 88
prohibits a servicemember from using contemptuous words against certain
government officials. Each Article has been upheld against facial First
Amendment challenges. Additionally, convictions under the Articles have
been affirmed even when the servicemember's speech occurred off-base and
during a private conversation. These underlying circumstances are
relevant only to the determination of whether the speech met the
elements of the offense, and not whether the speech is protected by the
First Amendment.

1.  *Article 134---General Article*

The general article is separated into three clauses.[^56] The first
includes "all disorders and neglects to the prejudice of good order and
discipline in the armed forces."[^57] This clause implies an internal
focus on the conduct's effect on the actual efficiency of the military.
The second clause includes "all conduct of a nature to bring discredit
upon the armed forces."[^58] Conduct and speech is punishable under this
clause that "has a tendency to bring the service into disrepute or which
tends to lower it in public esteem."[^59] Finally, the article imposes
sanctions for "crimes and offenses not capital."[^60] Under certain
circumstances, violations of federal law and that state law made
applicable by the Federal Assimilative Crimes Act[^61] are proscribed by
this clause.[^62]

The Manual for Courts-Martial also provides a list of specifications
that can be charged under the general article. The two most pertinent to
this discussion are disloyal statements[^63] and indecent language.[^64]
Typically, disloyal statements involve either political or moral
objections to governmental actions or policies. Conversely, indecent
language almost always involves personal, if not private,
communications. Before reviewing the First Amendment implications of
these specifications, the Supreme Court's treatment of the general
article will be detailed.

The Supreme Court upheld Article 134 against both vagueness and
overbreadth challenges in *Parker v. Levy*.[^65] In doing so, the Court
relied extensively on the separate community rationale and the special
responsibilities vested in Congress and the President by the
Constitution. Because an understanding of the Court's approach and
reasoning is necessary to the discussion contained in Part II, the
opinion will be examined in some detail.

Parker was commissioned as a Captain in the Army and was assigned as
Chief of the Dermatological Service at Fort Jackson, South
Carolina.[^66] In the execution of his duties at the hospital, Parker
made a number of statements to enlisted personnel concerning the U.S.
involvement in Vietnam.[^67] He was convicted by a court-martial of
violating Article 90, 133, and 134, and was sentenced to dismissal,
total forfeiture, and three years at hard labor. Although the Third
Circuit found that Parker's conduct fell within the conduct proscribed
by Article 133 and 134, it nevertheless reversed his conviction.[^68]
The court reasoned that the Articles were void for vagueness.[^69]

The Supreme Court, per Justice Rehnquist, reinstated Parker's
conviction.[^70] After recounting the special characteristics of the
military community,[^71] the Court reviewed the early history and
understanding of Article 134, which pre-dated the Constitution. It then
noted lower court precedent concluding that questions involving the
application of military customs were best determined by military
officers who are "more competent judges than the courts of common
law."[^72] In fact, the Court cited the Court of Claims reasoning that
cases involving Article 134 determinations were "not measurable by our
innate sense of right or wrong, of honor or dishonor, but must be gauged
by an actual knowledge and experience of military life, its usage and
duties."[^73]

The Court restated the characteristics that distinguish the military
community and governing UCMJ from civilian society and civilian
law.[^74] It emphasized the "different purposes of the two communities"
and stated that while military members "enjoy many of the same rights"
as civilians, they do not have "the same autonomy" since their "function
is to carry out the policies made by . . . civilian superiors."[^75]
Finally, the Court noted that because of the "broader sweep of the
Uniform Code" the military takes affirmative steps to make personnel
aware of the UCMJ's contents.[^76]

Turning to Parker's vagueness challenge, the Court found that the CAAF
and other military authorities had construed the article "in such a
manner as to at least partially narrow its otherwise broad scope."[^77]
The Court explained that "\[f\]or the reasons which differentiate
society from civilian society, we think Congress is permitted to
legislate both with greater breadth and with greater flexibility when
prescribing the rules by which the former shall be governed than it is
when prescribing rules for the latter."[^78] This reasoning lead the
Court to hold that "the proper standard of review for a vagueness
challenge to the articles of the \[UCMJ\] is the standard which applied
to criminal statutes regulating economic affairs,"[^79] namely that
"\[o\]ne to whose conduct a statute clearly applies may not successfully
challenge it for vagueness."[^80] Applying this standard to the facts of
the case, the Court concluded that Parker "could have had no reasonable
doubt that his public statements urging Negro enlisted men not to go to
Vietnam if ordered to do so" violated Article 134.[^81]

The Court similarly dispensed of Parker's overbreadth challenge.[^82]
Acknowledging that it typically permits attacks "'on overly broad
statutes with no requirement that the person making the attack
demonstrate that his conduct could not be regulated by a statute drawn
with the requisite narrow specificity,'" the Court held that this type
of attack was not available to military personnel.[^83] Instead, the
"different character of the military community and of the military
mission," based upon the "fundamental necessity for obedience" and
"necessity for imposition of discipline, may render permissible within
the military that would be constitutionally impermissible outside
it."[^84] The Court quoted at length from the "sensibly expounded"
reasoning of the CAAF in *United States v. Priest*:

> In the armed forces some restrictions exist for reasons that have no
> counterpart in the civilian community. Disrespectful and contemptuous
> speech, even advocacy of violent change, is tolerable in the civilian
> community, for it does not directly affect the capacity of the
> Government to discharge its responsibilities unless it is both
> directed at inciting imminent lawless action and is likely to produce
> such action. 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, not only hazarding their lives but
> ultimately involving the security of the Nation itself. Speech that is
> protected in the civil population may nonetheless undermine the
> effectiveness of response to command. If it does, it is
> constitutionally unprotected.[^85]

Acknowledging that its civilian precedent involved noncriminal sanctions
while the UCMJ imposed a wide range of criminal and administrative
punishments, the Court nevertheless decided that the "'weighty
countervailing policies'" which permit the extension of standing" for
overbreadth challenges in civilian society "must be accorded a good deal
less weight in the military context."[^86] The Court found, therefore,
that Article 134 could be applied to "a wide range of conduct" without
infringing on the First Amendment.[^87] As applied to the facts of the
case, Parker's conduct was simply "unprotected under the most expansive
notions of the First Amendment.\"[^88]

Three points from Justice Stewart's dissent deserve special attention
for the purposes of this discussion. First, Justice Stewart felt that
the transformations of the modern military justified a departure from
the Court's precedent. He admitted that beginning in 1858, the Court
upheld the predecessors to Article 133 and 134 against constitutional
attack. At that time the standing army and navy numbered in the hundreds
and the small professional cadre perhaps understood the conduct that was
prohibited by the Articles. "But times have surely changed."[^89] Given
the induction of millions of men through the procedures of the draft who
receive only a brief explanation of the UCMJ, Stewart felt that the
soldiers should not be subject to the uncertainties of the Articles
"simply because these provisions did not offend the sensibilities of the
federal judiciary in wholly different period of our history."[^90]

Second, Stewart concluded that the military's argument that the
vagueness of the Articles was necessary to "maintain high standards of
conduct" lacked merit.[^91] Instead, he concluded that the "vague laws,
with their serious capacity for arbitrary and discriminatory
enforcement, can in the end only hamper the military's objectives of
high morale and esprit de corps."[^92] In a footnote, he cited with
approval the suggestion of General Kenneth J. Hodson, former Judge
Advocate General of the Army and Chief Judge of the Army Court of
Military Review, that Article 134 should be replaced with specific sets
of orders outlawing particular conduct.[^93] Violations of these orders
could then be prosecuted as a failure to obey a lawful order under
Article 92.

Finally, Justice Stewart thought that the military's resort to either
criminal or administrative remedies was significant. He explained that
he did not "for one moment denigrate" the importance of commissioned
officers being men of honor or that military necessity required that
"servicemen generally must be orderly and dutiful."[^94] Therefore, the
military must make character evaluations of its personnel for the
purposes of promotion, retention, duty assignment, and internal
discipline. Stewart recognized, however, that the UCMJ operated as a
criminal statute, and he could not "believe that such meaningless
statutes as these can be used to send men to prison under a Constitution
that guarantees due process of law."[^95]

To summarize, the Supreme Court held in *Parker* that a military member
might succeed in making a vagueness challenge only if he could not have
known that his conduct was within the purview of the statute. Second,
the civilian overbreadth doctrine designed to provide incentives for
legislatures to narrowly tailor restrictions impacting protected speech
is practicably inapplicable in the military context. Given the vagueness
of the articles, courts are able to discern a "wide range" of restricted
conduct that does not infringe upon the First Amendment, so the
statute's overbreadth is not substantial. The Court also affirmed that
the clear and present danger test applies in the military context and
displayed a substantial amount of deference to the military's
professional judgment as to whether the test was met. Finally, in
finding that the statement was outside the protection of the First
Amendment, the Court implicitly concluded that Parker's speech was
disloyal to the United States and that the imposition of criminal
sanctions was permissible. These principles will guide much of the First
Amendment law that follows.

Three weeks after *Parker*, the Supreme Court handed down *Secretary of
the Navy v. Avrech*.[^96] Avrech was convicted of violating Article 80,
which punishes attempts to commit other UCMJ offenses.[^97] The
underlying offense was publishing statements disloyal to the United
States "with design to promote disloyalty and disaffection among the
troops" in violation of both clause 1 and 2 of Article 134.[^98] The
Court of Appeals had reversed Avrech's conviction, holding that Article
134 was unconstitutionally vague.[^99] Relying on *Parker*, the Supreme
Court summarily reinstated his conviction.[^100]

Remembering his own World War I military experience, Justice Douglas
submitted a strongly worded dissent that echoes many of the arguments
against restricting the speech of military personnel.[^101] After
detailing the exact statement that Avrech typed,[^102] Douglas recounted
that his fellow soldiers "lambast\[ed\] General 'Black Jack' Pershing
who was distant, remote, and mythical."[^103] He understood that what
they said "would have offended our military superiors," but since he was
free to write Congress "we saw no reason why we could not talk it out
among ourselves."[^104] Douglas emphasized that Avrech was not setting
up a "rendezvous for all who wanted to go AWOL," but instead "was
attempting to speak with his comrades about the oppressive nature of the
war they were fighting."[^105] At best, Douglas felt that the statements
might have prompted a letter to family or member of Congress. Finding
the statements innocuous, Douglas expressed his sharp disapproval of the
military attitude towards free speech in the ranks:

> I think full dedication to the spirit of the First Amendment is the
> real solvent of the dangers and tensions of the day. That philosophy
> may be hostile to many military minds. But it is time the Nation made
> clear that the military is not a system apart but lives under a
> Constitution that allows discussion of the great issues of the day,
> not merely the trivial ones---subject to limitations as to time,
> place, or occasion but never as to control.[^106]

Douglas's dissent raises four objections to the Court's resolution of
the general article prosecutions. First, he believes that Avrech's
statement was not a clear and present danger to good order and
discipline. Second, he appears to observe that a certain amount of
dissent is both natural and beneficial to the morale of the troops.
Third, Douglas recognizes that certain limits exist on the military's
authority to control the speech of its personnel. Whether the right to
communicate with Congress is based upon the Constitution or statute, an
outlet exists for the channeling of concerns and complaints. Finally,
however, Douglas seems to conclude that the official means of expression
should not be exclusive, and that if a member can write to Congress,
then less formal channels should be open as well.

While *Parker* and *Avrech* are the most significant Supreme Court
treatments of disloyal statements under Article 134,[^107] the leading
case from the CAAF is *United States v. Priest*.[^108] The court upheld
Priest's conviction for disloyal statements under the predecessor to
Article 134. The court concluded that the publication of 800 to 1,000
pamphlets calling for the violent overthrow of the government, taken in
its entirety, was disloyal to the government; that Priest intended to
promote disloyalty and disaffection among servicemen; and that the
conduct was prejudicial to good order and discipline.

The case is significant in a number of respects. The CAAF specifically
held that the "imminent lawless action" test outlined in *Brandenburg v.
Ohio*[^109] did not apply in the military context. Citing the different
nature of the military mission and community, the court concluded that:

> \[T\]he danger resulting from the erosion of military morale and
> discipline is too great to require that discipline must have already
> been impaired before a prosecution for uttering statements can be
> sustained. As we have said before, the right of free speech in the
> armed services is not unlimited and must be brought into balance with
> the paramount consideration of providing an effective fighting force
> for the defense of our Country.[^110]

Instead, the court endorsed Justice Holmes's assertion in *Schenck v.
United States*:

> The question in every case is whether the words used are used in such
> circumstances and are of such a nature as to create a clear and
> present danger that they will bring about the substantive evils that
> Congress has a right to prevent. It is a question of proximity and
> degree.[^111]

Consequently, it was not necessary for the government to show a
materialized effect on the military resulting from Priest's statements.
Instead, the inquiry is "whether the gravity of the effect of accused's
publications on good order and discipline in the armed forces,
discounted by the improbability of their effectiveness on the audience
he sought to reach, justifies his conviction."[^112]

Having articulated this standard, the court concluded that the facts
supported Priest's conviction. Although the court realized that the
military personnel's level of education was extremely high, it still
reasoned that "not all of them have the maturity of judgment to resist
propaganda."[^113] In this case, "\[o\]ne possible harm from the
statements is the effect on others if the impression becomes widespread
that revolution, smashing the state, murdering policemen, and
assassination of public officials are acceptable conduct."[^114]

The lesson to be taken from the court's reasoning is that even a
seemingly remote threat to good order and discipline will be sufficient
in most instances to justify a criminal conviction. The court attached
great weight to the fact that Priest advocated the violent overthrow of
the government instead of exercising the right of every citizen to
petition the government for redress or to elect candidates who espouse
his views.[^115] The court also understood that it was "highly
desirable" for military members to "have a good understanding of
national issues," and noted that this is not a case of "political
discussion between members of armed forces in the privacy of their rooms
or at an enlisted men's or officers' club."[^116] In the end, however,
the court stated that "the primary function of a military organization
is to execute orders, not to debate the wisdom of decisions that the
Constitution entrusts to the legislative and judicial branches of the
Government and to the Commander in Chief."[^117]

While the number of prosecutions for disloyal statements decreased
sharply after Vietnam, the military courts have recently seen a
substantial increase in the number of indecent language specifications
under Article 134.[^118] The CAAF has consistently declined First
Amendment challenges to the prosecutions, finding that "indecent" is
synonymous with "obscene," and such language is not afforded
constitutional protection.[^119] Furthermore, the CAAF has explained
that \"whether language is indecent depends on a number of factors,
including but not limited to \'fluctuating community standards of morals
and manners, the personal relationship existing between a given speaker
and his auditor, motive, intent and the probable effect of the
communication.\"[^120] Language is indecent if it "is calculated to
corrupt morals or excite libidinous thoughts."[^121]

As review of the reported cases indicates, criminal sanctions can be
imposed under Article 134 even for the content of "private" speech.
Courts have affirmed convictions for the interstate transportation of
child pornography, charged under the "crimes and offenses not capital"
provision of Clause 3 of Article 134.[^122] The courts have also
determined that private communication between adults is unprotected,
especially if hostile and degrading.[^123] Openly sexual comments that
rise to the level of indecent communication can be charged under Article
134,[^124] although comments that create a hostile work environment can
be charged in certain circumstances under Article 92 or 93. When the
conduct involves children, the courts have been even more reluctant to
entertain First Amendment challenges, relying on "the Supreme Court\'s
conclusion in \[*New York v. Ferber*[^125]\] that the right to
communicate to young children may be restricted."[^126]

In addition to imposing criminal sanctions for "private" conversations,
a charge under Clause 1 or 2 of Article 134 can also be applied to
conduct that occurs off-base. The off-base nature of the speech is
relevant to the extent that it indicates whether the act was actually
prejudicial to good order and discipline or of a nature to bring
discredit upon the armed forces. The Army Court of Military Review
(ACMR) found that this showing was not met in the particularly
interesting case of *United States v. Hadlick*.[^127] Hadlick was
convicted under Article 134 after he spit on the American flag while in
a drunken stupor at a police station. The CAAF remanded the case to the
ACMR with instructions to consider whether Hadlick's conduct was
expressive speech and protected in light of *Texas v. Johnson*.[^128]
The ACMR held that Hadlick spit on the flag "for no particular reason"
and therefore had no claim to First Amendment protection.[^129] However,
the court set aside the conviction, concluding that "we have no
information that the act was observed by anyone in the armed forces, was
in fact a deliberate act of desecration or was likely to be considered
by anyone to be a deliberate act of desecration or service
discrediting."[^130]

The issue presented in the case did not go unnoticed.[^131] If, unlike
Hadlick, a military member burns a flag for expressive purposes during
an off-base demonstration, can the military impose a criminal sanction
under the UCMJ without offending the First Amendment? One commentator
has concluded that "\[l\]ittle question exists that a flag burner in the
ranks will undermine the effectiveness of response to command."[^132]
Flag burning strikes at "the very heart of good order and discipline"
and would subject the flag burner to abuse from the members in his
command.[^133] A breach of the peace may result, and "any trust" in the
flag-burner's "ability and desire to defend his fellow soldiers---let
alone his country---in combat would be questionable."[^134]

Although the government failed to prove that Hadlick's off-base conduct
violated Article 134, this showing was made in *United States v.
Stone.*[^135] Stone was convicted under Clause 2 (conduct discrediting
the service) for giving a false account of his military actions in Iraq
during Operation Desert Shield/Desert Storm to a high school assembly.
Appearing in uniform and donning a green beret that he was not
authorized to wear, Stone described to the students how he had
parachuted from 50,000 feet into Baghdad prior to the beginning of the
air war.[^136] He also claimed to have been in Iraq in December, 1990,
and told the students "that they may be in jeopardy because terrorists
intent on retaliation may be watching his activities."[^137]

The Army Court of Military Review (ACMR) rejected Stone's contention
that the speech could not have discredited the military because he
delivered it while on leave and spoke only for himself.[^138] Instead,
it found that Stone had acted in an official capacity by making the
speech regarding his military activities while in uniform and in
public.[^139] Because the presentation was false but not disloyal, the
court examined the surrounding circumstances to determine if it was
service-discrediting. Stone claimed that the speech could not have
discredited the service because the audience warmly received it.[^140]
The court found, however, that the government had provided ample
evidence to the contrary.[^141] Affirming the ACMR's decision, the CAAF
summarily stated that the "First Amendment does not protect false
statements about military operations made by a soldier in uniform to a
public audience of high school students during wartime."[^142]

The question left unresolved by the opinion is whether Stone would be
subject to prosecution if his story were true. The court simply noted
that such a case would raise First Amendment concerns.[^143] Imagine
that Stone had described a true account of a massacre by U.S. military
personnel that he witnessed first-hand. After hearing the presentation,
the audience had diminished confidence in the integrity of military
personnel. Why would this speech not discredit the military? Could it be
that Stone must first report the incident through approved channels,
such as a filing an Inspector General complaint or sending a letter to
Congress?[^144] Does he have to wait for a response before he tells the
story to the public?

It could be argued that Clause 2 is intended to reach only false speech
that discredits the military, but this is not clear from the plain
language of the Article. Even if this interpretation were correct, it
would place great weight on the truth/falsity determination. For
example, what if Stone had told the students it was his opinion that
"President Clinton's handling of Bosnia proves that he is incompetent to
lead the military; he's a draft-dodger anyway?" If reasonable people
could disagree about the validity of this opinion, then is the speech
within the reach of Clause 2? Does the First Amendment protect Stone
from prosecution?

A second point from the ACMR's opinion deserves consideration. The court
found that Stone acted in his official capacity because he delivered the
discussion of his military activities while in uniform and in a public
forum. It is not clear why these facts are relevant to the determination
that his presentation was discrediting to the service. First, Stone's
presence in a public forum increased the likelihood that the speech
would discredit the military. At least in the civilian context, however,
categorizing a facility as a "public forum" under First Amendment
doctrine significantly limits the government's ability to regulate
speech.[^145] Second, even if Stone was out of uniform, the audience no
doubt understood that he was speaking about his personal experiences in
the military. If he had already been discharged from the military, then
he would not be subject to prosecution under the UCMJ. Furthermore, even
if he was not speaking about his military activities, so long as the
audience knew he was in the service the presentation could still be
discrediting to the service. For example, imagine that he had given a
presentation out of uniform and off-base on the legalization of child
pornography and the audience knew he was an airman from the local base.
Is this within the reach of Clause 2? Is it protected by the First
Amendment?

The most recent First Amendment challenge to an Article 134 conviction
was brought in *United States v. Brown*.[^146] Brown was a member of a
unit of the Louisiana National Guard that was mobilized during the Gulf
War. A number of his fellow airmen became discontent when his unit was
deployed to Fort Hood, Texas. After meetings with the commanding officer
failed to alleviate their concerns, Brown and others arranged for
charter buses to transport them back to Louisiana. Brown was charged and
convicted with violating 10 U.S.C. § 976, incorporated by Clause 3 of
Article 134, which prohibits *inter alia* the organization of military
members for strike, march, or demonstration against the
government.[^147] Brown claimed that the statute was vague and overly
broad and interfered with his First Amendment freedom of speech.

Delivering the CAAF's opinion,[^148] Judge Crawford reviewed the Supreme
Court precedent that recognizes the military as a "separate community"
and concluded that Brown could have little doubt that "organizing
*battalion-wide* meetings to discuss living conditions, long hours, and
inadequate time off, then arranging for transportation home would be
improper."[^149] In fact, she reasoned that there would be no question
that the allegation would meet the vagueness requirement had the
government charged Brown under Clause 1 or 2 of Article 134. Turning to
the specific First Amendment issue, Judge Crawford developed a checklist
to guide the analysis. Military personnel have "a right to voice their
views so long as it does not impact on discipline, morale, esprit de
corps, and civilian supremacy."[^150] After reviewing both the legal
precedent and scholarly articles that outline the critical importance of
each factor to the military community, she concluded that Brown's speech
was unprotected by the First Amendment. Although it does not appear to
have been necessary for the Court's holding, Judge Crawford made special
note of the many alternative outlets that Brown may have pursued with
his complaint, to include the chain of command under Article 138, an
Inspector General complaint, and communication with members of
Congress.[^151]

*2. Article 133---Conduct unbecoming an officer and gentleman*

> Any commissioned officer, cadet, or midshipman who is convicted of
> conduct unbecoming an officer and a gentleman shall be punished as a
> court-martial may direct.[^152]

In *Parker v. Levy*, the Supreme Court upheld Article 133 against
vagueness and overbreadth challenges using the same line of reasoning
that it found convincing for Article 134. The Court found that the
specific needs of the military community permitted restrictions that
would not be applicable to the civilian populace.[^153] Additionally,
the Court noted that the military courts of review had narrowed the
broad language of the article. The underlying conduct must have "double
significance and effect."[^154] As Winthrop explained, "\[t\]hough it
need not amount to a crime, it must offend so seriously against law,
justice, morality or decorum as to expose to disgrace, socially or as a
man, the offender, and at the same time must be of such a nature or
committed under such a circumstance as to bring dishonor or disrepute
upon the military profession."[^155] The explanation accompanying the
article provides further guidance, stating that not every officer "is or
can be expected to meet unrealistically high moral standards."[^156]
There is a limit of tolerance, however, "based on customs of the service
and military necessity below which the personal standards of \[the
officer\] cannot fall without seriously compromising the person's
standing as an \[officer\] or the person's character as a
gentleman."[^157]

First Amendment challenges to Article 133 prosecutions have been made in
three types of cases. The first implicates the "Don't Ask, Don't Tell"
policy. In essence, the member's statement that "I am a homosexual" is
treated as an admission. The admission is then used as evidence to
discharge the member based upon the engagement in prohibited
conduct.[^158] Because it has received ample consideration elsewhere,
the constitutional implications of the policy will not be discussed
here.[^159]

The second type of case involves an officer's solicitation of another to
violate a federal statute. Criminal solicitation is typically considered
outside the coverage of the First Amendment and is, therefore,
unprotected. In *United States v. Bilby*,[^160] the accused solicited
another to violate the federal statute prohibiting the interstate
transportation of child pornography.[^161] The CAAF held that "\[i\]t is
not necessary, under Article 133, that the conduct of the officer,
itself, otherwise be a crime" and concluded that "it is unbecoming for
an officer to solicit someone to violate a Federal
statute---period."[^162]

The third type of case involves an officer's private use of sexually
explicit language. In most instances, civilians who engage in this type
of speech are protected from prosecution,[^163] so long as the speech is
not obscene[^164] or does not involve children.[^165] In *United States
v. Hartwig*,[^166] a captain serving during the Gulf War received a
letter from a 14-year old schoolgirl. Although it was unclear whether he
knew the exact age of the girl,[^167] Hartwig responded with a letter
that contained strong sexual overtones and a request for the girl to
send a nude picture of herself to him.[^168] On appeal, Hartwig
challenged his conviction on First Amendment grounds, claiming that the
private letters were protected. The CAAF held that "\[w\]hen an alleged
violation of Article 133 is based on an officer\'s private speech, the
test is whether the officer\'s speech poses a 'clear and present danger'
that the speech will, 'in dishonoring or disgracing the officer
personally, seriously compromise\[ \] the person\'s standing as an
officer.'"[^169] The court found, therefore, that "the private nature of
his letter neither clothes it with First Amendment protection nor
excludes it from the ambit of Article 133."[^170] As the court
explained, the Supreme Court over a century ago "upheld the
constitutional authority of Congress to prohibit private or unofficial
conduct by an officer which 'compromised' the person\'s standing as an
officer 'and brought scandal or reproach upon the service.'"[^171]

The CAAF disposed of a similar First Amendment challenge in *United
States v. Moore*.[^172] Moore was convicted under Article 133 for the
communication of indecent language, which the court described as "not
simply amorous banter between two long-time lovers; rather it was
demeaning vulgarity interwoven with threats and demands for money and
sex."[^173] The court explained that the "conduct of an officer may be
unbecoming even when it is in private," and his actions "were clearly
unbecoming an honorable, decent, and moral man."[^174] Furthermore, "any
'reasonable military officer' would recognize that fact," and his
"statements were of a kind to bring discredit upon himself and raise
serious questions regarding his leadership ability."[^175]

*3. Article 92\--Failure to obey order or regulation*

> Any person subject to this chapter who -- (1) violates or fails to
> obey any lawful general order or regulation; (2) having knowledge of
> any other lawful order issued by a member of the armed forces, which
> it is his duty to obey, fails to obey the order; or (3) is derelict in
> the performance of his duties; shall be punished as a court-martial
> may direct.[^176]

While Article 92 may be applied to a wide-range of speech, convictions
have recently been challenged on First Amendment grounds in three
particular circumstances: flag desecration, "hostile environment" sexual
harassment, and possession of a drug recipe. Although rejected in all
three cases, the mere fact that free speech challenges were argued
illustrates the growing tendency of the accuseds to resort to First
Amendment defenses.

In 1991, the ACMR rejected a free speech challenge to an Article 92
conviction in *United States v. Wilson*.[^177] Wilson was a disenchanted
military policeman on flag-detail. After expressing his disgust of the
Army and the United States, he blew his nose on the American flag.[^178]
The accused was charged with dereliction of duty in that he "willfully
failed to ensure that the United States flag was treated with proper
respect by blowing his nose on the flag when it was his duty as military
policeman on flag call to safeguard and protect the flag."[^179] The
duty was based upon military custom, which was proven by reference to
Army field manual, and knowledge of the custom was established by the
testimony of his first sergeant.[^180]

The military judge determined that soldier's actions were expressive
conduct "entitled to protection unless government has greater
countervailing interest in suppressing the particular speech."[^181] The
ACMR recounted the "separate community" rationale, stating that the
"essence of military service 'is the subordination of desires and
interests of the individual to the needs of the service.'"[^182]
However, since it determined that Wilson's conduct was expressive speech
and the governmental regulation only incidentally related to the
suppression of free speech, the ACMR proceeded to evaluate the
government regulation based upon the test outlined in *United States v.
O'Brien*.[^183] Given the long precedent establishing the unique nature
of the military community, it is somewhat surprising that the ACMR did
not apply the clear and present danger test in this instance. In fact,
this is the only reported case in which a military court of review has
utilized the *O'Brien* test.

As defined by the ACMR, the *O'Brien* test asks four questions. Is the
regulation within the constitutional power of the government? Does it
further an important or substantial government interest? Is the
governmental interest unrelated to the suppression of free expression?
Is the incidental restriction on alleged First Amendment freedoms no
greater than necessary to further that interest?[^184]

Applying the *O'Brien* test, the court found that Article 92 "is a
legitimate regulatory measure because the government may regulate the
conduct of soldiers."[^185] Second, Article 92 "furthers an important
and substantial government interest in promoting an effective military
force."[^186] Third, the purpose of Article 92, "in proscribing failures
to perform military duty is, on its face, unrelated to the suppression
of free speech."[^187] "Finally, the incidental restriction of alleged
First Amendment freedoms is no greater than is essential to further the
government interest in promoting the disciplined performance of military
duties."[^188] Consequently, Wilson's expressive conduct was
unprotected.

Aside from the fact that it was applied in this situation, the *O'Brien*
test's application presents an interesting dilemma for future accuseds
wishing to challenge an Article 92 conviction. In short, it is nearly
impossible. Because the ACMR chose to evaluate the government's
interests in suppressing free expression and the incidental effect of
the restriction in general terms, the analysis is applicable to any
challenge to an Article 92 conviction.

It could be argued, however, that the *O'Brien* test should be applied
to the underlying duty and not the general article. Wilson's duty was to
show the proper respect to the flag as a member of the flag-raising
detail. Initially, it could be argued that the government's restriction
is not incidental to the suppression of speech, and therefore, the
*O'Brien* test should not apply. Alternatively, applying the *O'Brien*
test, it could be argued that the government's interest in showing the
proper respect for the flag is not unrelated to the suppression of free
expression. Even applying a more specific definition of the underlying
duty, Wilson's challenge would likely fail because his conduct involved
government property and he was assigned as a military policeman.
However, a different fact scenario might lend itself to this type of
argument.

First Amendment challenges were also made to an Article 92 conviction
involving seven specifications of sexual harassment in *United States v.
Daniel*.[^189] The accused argued that the underlying Navy Regulation's
prohibition of "hostile environment" sexual harassment was facially void
for vagueness because of its chilling effect on speech. The court
reversed the conviction on other grounds, finding that the regulation
was not punitive and therefore could not serve as the basis for an
Article 92 conviction. However, in light of the recent Supreme Court's
treatment of similar challenges to Title VII,[^190] future challenges
are likely to be unsuccessful.

Finally, a conviction under Article 92 was challenged on free speech
grounds in *United States v. McDavid*.[^191] McDavid was charged and
convicted, *inter alia*, of violating an Air Force regulation by
possessing a handwritten drug "recipe" with criminal intent to produce a
controlled substance.[^192] On appeal, he argued that "punishing someone
for possessing a document that they wrote themselves has profound
constitutional implications."[^193] The Air Force Court of Criminal
Appeals reiterated that the prosecution was for possessing a drug recipe
*with criminal intent*, and not merely the "dissemination of ideas or
the expression of views." The court concluded that it had "no First
Amendment concerns about a specification which alleges as criminal the
act of possessing a recipe for concocting an illegal controlled
substance, together with some of the chemical components of the
controlled substance."[^194]

### *4. Article 88---Contempt toward officials*

> Any commissioned officer who uses contemptuous words against the
> President, the Vice-President, Congress, the Secretary of Defense, the
> Secretary of a military department, the Secretary of Transportation,
> or the Governor or legislature of any State, Territory, Commonwealth,
> or possession in which he is on duty or present shall be punished as a
> court-martial may direct.[^195]

According to the clear language of Article 88, only "contemptuous" words
against the listed officials are prohibited. Furthermore, the
explanation accompanying the Article states that "\[n\]either 'Congress'
nor 'legislature' includes members individually."[^196] The discussion
also indicates that it is "immaterial whether the words are used against
the official in an official or private capacity."[^197] However, so long
as the words are "not personally contemptuous, adverse criticism of one
of the officials or legislatures named in the article in the course of a
political discussion, even though emphatically expressed, may not be
charged as a violation of the article."[^198] Finally, "\[t\]he truth or
falsity of the contemptuous statement is immaterial."[^199]

The prohibition contained in Article 88 is not only content-based, it is
also view-point based. Under the civilian protections of the First
Amendment, the government is forbidden to discriminate among speakers
based upon the speaker's viewpoint. Even in a nonpublic-forum such as a
military base, the government may impose restrictions upon civilian
speech only if the restriction is "reasonable and not an effort to
suppress expression merely because public officials oppose the speaker's
view."[^200] Civilians are, therefore, protected from prosecution for
uttering words that are "contemptuous" against public officials. For
example, in *Watts v. United States*, the Supreme Court reversed the
conviction of a teenager who stated during a protest rally "If they ever
make me carry a rifle, the first man I want to get in my sights is
L.B.J."[^201] Watts was convicted under a federal statute that
prohibited any person from knowing and willfully making a threat against
the life of the President.[^202] Although the statute was valid on its
face, the Court explained that "\[w\]hat is a threat must be
distinguished from what is constitutionally protected speech."[^203]
Taken in context and "against the background of a profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open"[^204] the only offense Watts
committed was to engage in "a kind of very crude offensive method of
stating a political opposition to the President."[^205]

The most recent court-martial conviction under Article 88 involved 2nd
Lt. Henry Howe's off-duty participation in a sidewalk demonstration to
protest the Vietnam War.[^206] During the fall of 1965, Howe carried a
sign that read "LET'S HAVE MORE THAN A 'CHOICE' BETWEEN PETTY, IGNORANT,
FACISTS \[sic\] IN 1968" and "END JOHNSON'S FACIST \[sic\] AGRESSION
\[sic\] IN VIETNAM."[^207] While he was not in uniform, the record
indicates that the protest march prompted extensive media coverage and
approximately 2000 people were present.[^208] Military policemen, on
hand to assist civilian police with any military personnel that might
become involved in the demonstration, recognized Howe and several
others.[^209]

Howe was convicted by a general court-martial of violating Article 88
and 133, and ultimately received a sentenced of dismissal, total
forfeitures, and one-year confinement.[^210] On appeal, the CAAF
rejected Howe's assertion that Article 88 violated his First Amendment
rights. The court noted the restrictions contained in the provision are
older than the Constitution itself, appearing in the Article of War
adopted by the Continental Congress in 1775.[^211] After detailing the
subsequent congressional endorsement of the article, the court concluded
that the reenactments "constituted a contemporary construction of the
Constitution and is entitled to the greatest respect."[^212] While
highlighting that the protections afforded by the First Amendment are
not absolute, the court emphasized that the evil the article seeks to
avoid is "the impairment of discipline and the promotion of
insubordination by an officer of the military service."[^213] The court
noted that given the hundreds of thousands of troops fighting in Vietnam
and the thousands of draftees, it "seems to require no argument" that
Howe's conduct constituted a clear and present danger to discipline
within the armed forces.[^214] The conclusion that Article 88 "does not
violate the First Amendment is clear."[^215]

Apart from the actual finding that Article 88 is facially valid, the
court's holding is significant in at least three respects. First, the
court relied heavily upon the fact that the restrictions proscribed in
the article pre-dated the First Amendment. The consequent reenactment of
the Article by Congress led the court to conclude that this prohibition
was acceptable. It has been argued, however, that this reasoning is
inapplicable to the current military community because the Founding
Fathers had never envisioned a large peacetime standing army.[^216]
Second, the court placed great emphasis on the "separate community"
theory and the importance of civilian control of the military to
survival of our democratic government.[^217] Third, the ease by which
the court found that Howe's expressive conduct represented a clear and
present danger to military discipline is notable.

This article has not gone without criticism.[^218] It has been argued
that Article 88 "precludes military officers from engaging in open and
vigorous debate about officials and their policies,"[^219] and "must
have a chilling effect on anyone subject to its strictures and aware of
its prohibition."[^220] Arguably, however, the actual threat to free
speech posed by Article 88 is small.

Consider the remarks of Maj. Gen. Harold N. Campbell, a 32-year veteran
who reportedly called President Clinton a "dope-smoking,"
"skirt-chasing," "draft-dodging" Commander-in-Chief during a speech in
the Netherlands in the summer of 1993.[^221] An Air Force inquiry ensued
and reportedly concluded that Gen. Campbell had violated Article
88.[^222] Soon thereafter, Air Force Chief of Staff Gen. Merrill McPeak
announced at a Department of Defense briefing that Gen. Campbell was
given a written reprimand under Article 15 and had requested to
retire.[^223] Regardless of one's voting preferences or the popularity
of an opinion with others,[^224] it seems clear that Gen. Campbell's
remarks were inappropriate. Amounting to a personal attack on the
President, the comments were not aimed at a pending national issue or
policy. The incident did add to the impression held by many that the
military did not hold the highest opinion of the President, but whether
the "open and vigorous" public debate benefited from this additional
information is at least questionable. As President Clinton reportedly
responded, "for a general officer to say that about the
commander-in-chief---if that happened---is a very bad thing."[^225]

# **C. Department of Defense Regulations and Air Force Instructions**

The Department of Defense and the individual services have promulgated a
variety of regulations that restrict the speech activities of its
members.[^226] If the regulation is punitive, violations may be charged
under Article 92, UCMJ.[^227] A number of punitive Air Force
Instructions (hereinafter AFI or AFIs) raise possible free speech
issues, such as the Internet restrictions contained in AFI 33-129[^228]
and the unprofessional relationship prohibitions outlined in AFI
36-2909.[^229] Of particular interest for the purpose of this inquiry,
however, are the restrictions on political speech.

The restrictions on the political activities of Air Force personnel are
contained in Department of Defense (hereinafter DOD) Directive
1344.10[^230] and AFI 51-902.[^231] The AFI prohibits a host of partisan
political activity, to include the use of "official authority or
influence to interfere with an election, to affect its course or
outcome, to solicit votes for a particular candidate or issue, or to
require or solicit political contributions from others."[^232] On the
other hand, members can vote, attend political meetings and rallies as a
spectator out of uniform, and express personal views on non-partisan,
public issues in a letter to the editor of a newspaper.[^233] It would
appear, therefore, that a lieutenant would be permitted to submit the
statement at the beginning of this article as a letter to the editor of
the *Air Force Times*. Additionally, the military permits personnel to
place a "political sticker on the member's private vehicle, or wear a
political button when not in uniform and not on duty."[^234]

While service members are generally permitted to engage in the conduct
outlined in the two regulations, commanders have also been provided
guidance on the handling of political protest and dissent. These
responsibilities are contained in DOD Directive 1325.6[^235] and AFI
51-903.[^236] The AFI provides that "commanders must preserve the
service member's right of expression, to the maximum extent possible,
consistent with good order, discipline, and national security."[^237]
Commanders, however, "have the inherent authority and responsibility to
take action to ensure the mission is performed and to maintain good
order and discipline."[^238] Consequently, an Air Force member may not
"distribute or post any printed or written material" other than official
publications "within any Air Force installation without permission of
the installation commander or that commander's designee."[^239]

The regulations serve two related purposes. The first is to avert clear
and present dangers to military order and discipline as described in the
preceding court opinions. The second purpose is to maintain a
politically disinterested military that remains safely under the control
of civilian superiors. The balance between the free speech rights of
military personnel and the military's interest in good order and
discipline and mission effectiveness can be a particularly challenging
task.

In *Brown v. Glines*,[^240] the Supreme Court denied a facial challenge
to military regulations that required military personnel and civilians
to gain prior command approval before circulating certain material. Two
Air Force regulations were at issue in the case. The first regulation,
Air Force Regulation (hereinafter AFR) 35-1(9) prohibited the public
solicitation or collection of petitions by a military member in uniform,
by a military member in a foreign country,[^241] or by any person within
an Air Force facility without command permission.[^242] The second
regulation, AFR 35-15(3) prohibited military personnel from distributing
or posting any unofficial material within an Air Force facility without
command permission.[^243] Since the regulations applied to all petitions
and unofficial material, the restrictions were content-neutral. Like the
ACMR in *United States v. Wilson*,[^244] the Supreme Court essentially
applied the *O'Brien* test to the regulations. The Court concluded that
the regulations were permissible under the First Amendment because they
advanced a substantial government interest unrelated to the suppression
of free expression and restricted speech no more than was reasonably
necessary to protect that interest.

Glines was a reserve captain on active duty at Travis Air Force base. He
drafted a petition to several members of Congress and the Secretary of
Defense complaining about the Air Force grooming standards.[^245] While
on temporary duty at Anderson AFB, Guam, he had the petition circulated
without obtaining prior approval of the base commander. When his
commander was notified of the incident, Glines was assigned to the
standby reserves.[^246]

While recounting the special characteristics and attributes of the
military as a separate society, the Court found that the regulations
"protect a substantial Government interest unrelated to the suppression
of free speech."[^247] That interest was the avoidance of a "clear
danger to the loyalty, discipline, or morale of the troops on the base
under his command."[^248] The Court repeated selective quotes from its
precedent that explain the "separate community" rationale. For example,
"\[t\]o ensure that they always are capable of performing their mission
promptly and reliably, the military services 'must insist upon a respect
for duty and a discipline without counterpart in civilian life.'"[^249]
Significantly, the Court also noted that the location or combat status
of the base was immaterial. The restrictions necessary for military
readiness and discipline "are as justified on a regular base in the
United States, as on a training base, or a combat-ready installation in
the Pacific."[^250] Regardless of where the base is located, airmen "may
be transferred to combat duty or called to deal with a civil disorder or
natural disaster."[^251]

After finding that the regulations advanced a substantial government
interest, the Court also concluded that "the Air Force regulations
restrict speech no more than is reasonably necessary."[^252] The
regulations "prevent commanders from interfering with the circulation of
any materials other than those posing a clear danger to military
loyalty, discipline, or morale."[^253] The additional limitations
contained in the regulations convinced the Court the commander's
censorship authority was sufficiently limited. Finally, the Court
reasoned that the prior approval requirement was necessary because if
the commander did not have the opportunity to review the material, then
he "could not avert possible disruption among his troops."[^254] In an
important footnote, the Court conceded that commanders could "apply
these regulations 'irrationally, invidiously, or arbitrarily,' thus
giving rise to legitimate claims under the First Amendment."[^255] Since
Glines never requested permission to circulate his petition, the
question was not before the Court.

It is unclear how the Court determined that the substantial government
interests advanced by the regulations were unrelated to the suppression
of free expression. It is indisputable that the military has a
substantial interest in protecting loyalty, discipline, or morale. The
regulations in question, however, advance that interest by requiring
members to obtain prior approval for certain forms of speech from the
base commander. It may be argued that the military is concerned, in
general, with preventing disruptions to good order and discipline. The
implications of this argument, however, are far reaching because it
would appear that the purpose of *every* military restriction and
regulation is to prevent disruptions to loyalty, discipline or morale.
If this observation is correct, then the First Amendment rights of
military personnel can be reduced to a simple statement: Members have
the right to speak so long as the speech does not pose a clear threat to
the good order and discipline of the military.

# 

# **D. Specific Command Orders**

There are few cases in which First Amendment challenges have been made
to a commander's specific order. Of course, this may be a result of
either a lack of specific orders being issued or a lack of specific
orders being challenged. The most pertinent free speech challenge to a
specific order dealt with a bumper sticker on a civilian employee's
vehicle.

In *Ethredge v. Hail*,[^256] the commander of Robins Air Force base
issued an administrative order barring "bumper stickers or other similar
paraphernalia" that "embarrass or disparage the Commander in
Chief."[^257] Ethredge, a civilian employee who had worked at the base
for over twenty-five years, refused to remove a bumper sticker from his
truck that read "HELL WITH CLINTON AND RUSSIAN AID" claiming that it was
protected speech under the First Amendment.[^258] The Eleventh Circuit
denied his challenge, finding that Robins Air Force Base was a
non-public forum, permitting officials to impose speech regulations so
long as it "is reasonable and not an effort to suppress expression
merely because public officials oppose the speaker's view."[^259]

The court reasoned that the order was not viewpoint-based because it did
not prohibit criticism of the President. Other vehicles on-base had
bumper stickers that read "Bill Clinton has what it takes to take what
you have" and "Defeat Clinton in '96."[^260] Additionally, the court
found that the order in no way limited the application of the
restriction to opponents of the President. Since it merely prohibited
bumper stickers that embarrass or disparage the President, it also
applied to supporters of the President.[^261]

Having decided that the order was viewpoint neutral, the court also
found that it was reasonable. A commander is not required to
"demonstrate actual harm before implementing a regulation restricting
speech."[^262] The commander merely needed to demonstrate a "clear
danger to military order and morale."[^263] Since the installation
commanders submitted affidavits that they believed the sign would
"undermine military order, discipline, and responsiveness" and anonymous
phone callers had threatened to break the window out of Ethredge's
truck, this standard was met.[^264] As the court concluded, "\[w\]e must
give great deference to the judgment of these officials."[^265]

This case raises two points of interest. First, despite the court's
conclusion to the contrary, the order is undoubtedly both content and
viewpoint based. It discriminates based upon content because it applies
only to signs that reference the President.[^266] It discriminates based
upon viewpoint because it applies to comments that are "disparaging or
embarrassing" but not to comments that praise the President or merely
state vague disapproval. Viewpoint discrimination in this instance is
not determined by looking at the underlying political party or even
motivation of the speaker.

Perhaps the more interesting aspect of the decision, however, is the
threat to military order and discipline posed by the message. Callers
had threatened to break the windows out of Ethredge's truck. This type
of behavior is illegal. Unlike Parker's disloyal statements during
Vietnam, Ethredge was certainly not advocating for the occurrence of
this lawless action. Instead, his "speech" was likely to incite lawless
action to his detriment. It could be argued that the real threat to
"good order and discipline" arose from the inability of co-workers to
resist the urge to destroy property, not from Ethredge's bumper sticker.
Although ordinarily reluctant to give a crowd a "heckler's veto" to
silence the speaker,[^267] courts have not applied this line of civilian
precedent to the military because of the government's compelling
interest in maintaining good order and discipline.

In conclusion, federal courts have typically displayed a substantial
degree of restraint in adjudicating the First Amendment claims of
military personnel. This deference is justified because the Constitution
places the primary responsibility for regulating the military---and
balancing the military interests and free speech rights of
servicemembers---in the Legislative and Executive branches.
Additionally, a lower degree of free speech protection is necessary to
safeguard the military's ability to fulfill its unique mission and role
in society.

A review of the available case law indicates that the military may
impose speech restrictions whenever necessary to protect its significant
interests. Sanctions may be imposed, therefore, even when the speech
occurs off-base and during an otherwise private conversation. Courts
rarely review free speech challenges under the traditional civilian
precedent and often defer outright to the judgment of military
authorities. In other cases, courts have either resurrected the "clear
and present danger" test or upheld military prohibitions under the
*O'Brien* test after finding that the substantial government interest is
unrelated to the suppression of free expression. Consequently, it
appears that the servicemember's primary means of dissent are limited to
those official channels established and protected by Congress and the
President.

**II. FIRST AMENDMENT DOCTRINE AND**

# **THE PROTECTION OF MILITARY INTERESTS**

The proper scope of First Amendment protection for the speech of
military personnel continues to be the source of intense debate. Critics
have called for the courts to review the free speech challenges of
military personnel according to either the traditional civilian First
Amendment doctrine or, at least during peacetime, the protections
afforded government employees and federal civil servants. These
arguments must be considered in light of the dramatic transformations
that the military has experienced during the last decade. Perhaps the
most pertinent changes include the decreased number of military
personnel, the increased level of education of the force structure, and
the growing proportion of federal civil servants and independent
contractors. Furthermore, the traditional focus on nuclear missions has
been replaced with short-notice deployments and peacekeeping operations.
Despite these seemingly critical modifications, the military mission
remains the protection of the nation's interests through the application
of force.

Consequently, the following examination has three primary objectives.
The first objective is to review the arguments both for and against
granting military personnel greater free speech protections. These
arguments are presented to defend the judiciary's continued deference to
military authorities as well as to provide legal advisors with pertinent
factors to consider when providing guidance to commanders. The second
objective is to describe how the current legal framework protects
military interests from the threats posed by civilians and government
employees. This discussion indicates that commanders possess substantial
discretion to exclude civilians from the base and discharge federal
employees based upon their speech without transgressing the First
Amendment.

Finally, it is argued that, although this discretion appears adequate to
protect the military's interest, courts should not apply the free speech
standards of civilians and government employees to military personnel
because of the intrusive nature of the inquiry and the military\'s need
to impose criminal sanctions in certain circumstances. This section
concludes, however, that legal advisors should recommend, as a general
rule, that military members be afforded the same First Amendment
protections provided government employees, to the extent that the
protections differ. Criminal sanctions should be sought in situations
when a substantial breakdown in military custom is likely or the threat
to military interests is greater than would be posed by a similarly
situated government employee.

**A. Arguments Against Greater Free Speech Protections**

Two arguments are typically advanced to justify the current restrictions
on service members' speech activities. The first argument focuses on the
threat to good order and discipline that certain speech activities pose
to the effective accomplishment of the military mission. The second
involves the maintenance of the proper relationship between the military
and the civilian leaders of the country. The unique mission and
characteristics of the military community underlie both arguments.
Furthermore, the need to protect these military interests explain and
justify the special free speech restrictions imposed upon military
personnel.

*1. Threats to Good Order, Discipline, and Morale*

The first argument supporting the unique free speech restrictions in the
military context centers on the threats to good order, discipline, and
morale posed by dissenting voices within the ranks.[^268] The military
fulfills a unique purpose and mission. It must be prepared to
immediately defend national interests anywhere in the world. It has been
entrusted with a vast array of weapons systems and technologies, capable
of destroying not only towns and countries, but human civilization as we
know it. This awesome responsibility distinguishes military personnel
from other civilian paramilitary officers such as the police and prison
guards.

The Supreme Court has acknowledged the special relationship between the
military and the service member, describing induction not merely as a
job but a change in "status."[^269] Senator Nunn explains that once a
person changes her status from civilian to military, either voluntarily
or involuntarily, "that person's duties, assignments, living conditions,
privacy, and grooming standards are all governed by military necessity,
not personal choice."[^270] Military necessity requires that a
high-level of training and unit readiness be maintained at all times,
because a crisis may erupt at any time.[^271]

It has been recognized, therefore, that the unique military mission and
responsibilities underlying the separate community rationale necessitate
a different application of First Amendment principles than those applied
to other civilians or other government employees. The military policies
"must reflect the very realistic possibility that the soldier who is
behind a comfortable desk today might be in a hostile and physically
challenging field environment on very short notice."[^272] In *Brown v.
Glines*, the Supreme Court specifically noted that "\[l\]oyalty, morale,
and discipline are essential attributes of all military service."[^273]
The Court further recognized that military personnel "may be transferred
to combat duty or called to deal with civil disorder or natural
disaster" regardless of where they are assigned.[^274] As Professor
Detlev Vagts explains, the military member must "sacrifice some of the
liberties which he is called upon to protect---no revolutionary regime
has ever found it possible to grant true democracy to an Army."[^275]

It seems rather obvious that the rogue military member who refuses to
deploy to the Gulf because he disagrees with official policy should be
criminally sanctioned. However, it has been noted that "\[d\]espite the
delegation of ample congressional power to control disobedient and
disruptive *conduct*, the military argues that it also needs protection
against disobedient and disruptive *words*."[^276] Civilians are
generally provided significant protection under the First Amendment for
their use and choice of words in order to maintain an "uninhibited,
robust, and wide-open" public debate that "may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and
public officials."[^277] Content based restrictions are permissible only
when necessary to advance a compelling state interest. As a general
rule, civilian advocacy can only be restricted if it is intended to
incite imminent lawless action and not if it merely poses a threat to
incite lawless action at some indefinite time in the future.[^278]

As the discussion in Part I illustrates, the military's mission has
prompted a substantial deviation from the free speech protection
afforded civilians. As the CAAF explained in *United States v. Priest*,
the military standard for illegal advocacy continues to be the clear and
present danger test, requiring that a commander conclude that the speech
will cause some level of harm to the unit even if that harm has not
materialized.[^279] Consequently, although the "heckler's veto" may not
be used to silence a speaker in the civilian setting, "constitutional
decisions requiring authorities to control the angry crowd rather than
the unpopular speaker are not precedents for the military."[^280]

The military is not required to control the angry crowd because of the
critical importance of unit cohesion to the accomplishment of the
mission.[^281] Senator Nunn has quoted a number of high-level military
commanders who have testified before Congress on the importance of this
characteristic to combat capability. General H. Norman Schwarzkopf has
explained that "in my forty years of Army service in three different
wars, I have become convinced that \[unit cohesion\] is the single most
important factor in a unit's ability to succeed on the
battlefield."[^282] While serving as Chairman of the Joints Chiefs of
Staff, General Colin Powell argued:

> \[W\]e create cohesive teams of warriors who will bond so tightly that
> they are prepared to go into battle and give their lives if necessary
> for the accomplishment of the mission and for the cohesion of the
> group and for their individual buddies. We cannot allow anything to
> happen which would disrupt that feeling of cohesion within the
> force.[^283]

The commander is ultimately responsible for the maintenance of good
order and discipline within the unit. Consequently, when unit cohesion
is threatened, she can order Ethredge to take the bumper sticker off his
truck[^284] instead of forcing the military community to tolerate this
disruptive voice.

While the military organization does occupy a unique role, many have
questioned the court's application of different First Amendment
standards to the entire military community. "First, many servicemen
pursue careers little different from and no more strenuous or dangerous
than numerous civilian pursuits."[^285] As the military privatizes
thousands of positions formally occupied by uniformed personnel, the
rationale supporting different standards for non-combat positions has
been questioned. Second, it has been argued that "in the era of the
all-volunteer force, as the armed services seek to induce talented,
educated, upward mobile youths to choose a military career, exclusive
reliance on 'duty, honor, country' has waned."[^286] A different type of
military is emerging based on a model that is "more democratic,
personalistic, occupation-oriented, \[and\] managerial."[^287]

The changing attributes of military service have prompted many scholars
to question the wholesale exclusion of military personnel from the free
speech protections afforded civilians.[^288] It has been argued that
courts should begin the analysis by assuming that civilian precedent
applies, and insist "that the Government articulate and substantiate the
specific military interest which allegedly precludes the application of
the particular civilian legal standard in question."[^289] These
commentators take exception to the generalized abstract military
concerns that are typically advanced by the military. Instead, Professor
Dienes argues that the mere "\[r\]ecitation of the vital interest of the
military the *might* be at stake in a particular case, and that *might*
justify the burden imposed on the individual, is simply an inadequate
basis for forcing the surrender of first amendment rights."[^290] Given
the shear size of the military establishment, "\[a\] government which
boasts that it is a government of, for, and by the people---all the
people---cannot reduce millions of men to second class citizens."[^291]

In addition to arguments concerning the need for a wholesale exclusion
of all uniformed personnel from civilian free speech protections, it has
also been noted that not all dissenting speech is detrimental to the
military. It is conceivable that dissenting speech may, in certain
circumstances, actually be supportive of military effectiveness by
uncovering inefficiency and error.[^292] It would appear, however, that
the military has provided adequate channels for a member to voice such
concern. For example, personnel may air grievances through the
chain-of-command by Article 138 and may initiate an Inspector General
complaint or individually communicate with members of Congress in an
unofficial capacity without fear of retaliation.[^293] While one Air
Force officer has recently alleged retaliation,[^294] there appears to
be a host of available channels for reporting any number of perceived
problems to the appropriate authorities.

*2. Proper Relationship Between Military and Civilian Leaders*

The second rationale supporting restrictions on the speech activities of
military personnel addresses the threat to the civilian control of the
military that dissent may create.[^295] The civilian leaders of the
military, both elected and appointed, can be threatened by the vocalized
dissent of both high-ranking officials and the involvement of military
personnel in partisan political causes.[^296] The threats posed to the
civilian leadership by the military range from the seizure of power by
military coup to the refusal to obey orders. These civilian leaders,
"who bear the ultimate responsibility, need protection from
irresponsible abuse by their subordinates."[^297] Consequently, this
rationale is closely related to the maintenance of good order and
discipline.

There are two possible threats to civilian control of the military posed
by the speech of military members. The first threat comes from personnel
who voice disagreement with the official policies of the civilian
leaders. It seems unquestionable that a commander of troops preparing to
deploy should not be permitted to question the wisdom of the decision.
The second threat comes from unauthorized statements of military
personnel that may be interpreted as the official voice of the service.
The harm from this type of statement can be felt both domestically and
internationally, because it can "form the 'germ of truth' from which
vast and meretricious propaganda claims of American war-mongering can be
cultivated."[^298]

The challenge is to define the proper role for the military leader or
soldier who disagrees with a given political decision. Once again, the
question is not whether the military member should obey the directive;
he must. The question is whether he should be permitted to voice
disagreement with the policy. It has been argued that allowing military
personnel to voice dissent in the public arena "may promote the proper
relationship among the military, its civilian leadership, and the
people" and "help bring to the public both facts and opinions that might
otherwise go unreported."[^299]

It has even been suggested that the airing of grievances by military
members actually may be beneficial to civilian control. By exposing
issues to the attention of the public, "a dissenting officer who is
ready to make it known that the armed forces are not as unified on the
position as the might appear to be" may be the greatest asset to
civilian control.[^300] In fact, it has been argued that the "most
dangerous military may be the one with the 'isolated---garrison'
mentality, totally removed from civilian concerns, but susceptible to
rebellion in times of discontent."[^301]

**B. Arguments For Greater Free Speech Protections**

Three basic arguments are advanced in support of greater free speech
protections for military personnel. First, it is argued that respect for
the personal autonomy and individual development of the member may
actually serve the military's interest in good order and discipline.
Second, it is reasoned that avenues for free expression may act as a
safety valve for internal dissent, permitting individuals to vent
frustration while continuing to effectively perform their tasks.
Finally, it is contended that the voicing of dissent and displeasure
provides both the public and the military with valuable information on
the military's internal conditions and prevailing attitudes. While each
of the three are related to some extent, it is critical to distinguish
between the dissenting voice that benefits the services without
jeopardizing the mission, and that which undermines the good order and
discipline of a unit.

1.  *Personal Autonomy and Intellectual Development*

Perhaps the most basic argument in favor of providing substantial free
speech protections to military personnel involves respect for the
member's personal autonomy and intellectual self-awareness. By
permitting the individual to speak freely and debate the validity of a
wide range of topics, the military encourages the development of both
the communication and intellectual skills necessary for effective
leadership.[^302] Especially in an environment that emphasizes
conformity and uniformity, free expression has the capacity to remind
the member of her own uniqueness and self-worth.[^303] Additionally, the
member is afforded the opportunity to participate in the free exchange
of ideas and information, reaching his own conclusions and ultimately
strengthening his dedication to the organization's core values, rules,
and regulations. As one scholar has observed, "it is difficult to
believe that the interests of the military are served by inhibiting the
development of those skills and capacities required for full
participation in any society."[^304]

While it seems difficult to object to the benefits that such
intellectual freedom bring, the process poses at least two threats to
the military. The first threat is the potential disturbance caused by
the debate itself. While it may be appropriate and useful to debate a
military policy still under consideration, once a decision is made and a
course of action initiated, continued discussion may pose a threat to
the obedience and discipline that is vital to the military mission. As
the CAAF succinctly stated in *Priest*, "the primary function of a
military organization is to execute orders, not to debate the wisdom of
decisions that the Constitution entrusts to the legislative and judicial
branches of the Government and to the Commander in Chief."[^305]

The second threat that "open and vigorous debate" poses to the military
community is that the individual member may conclude that the policy of
the organization is flawed. However, the mere conclusion that the policy
is incorrect does not pose a significant threat to the military unless
the allegiance and loyalty of the member in actually performing his
duties is compromised. Certainly, military personnel are not expected to
agree wholeheartedly with every policy or order that is issued. They are
expected, however, to wholeheartedly implement the policy or order to
the best of their ability and without reservation.

Commentators have noted a number of other factors that weigh in favor of
providing the individual member with greater free speech protections.
The first is that participation in the military is not always voluntary,
and membership is not always a lifetime status. Consequently, if
personnel "are not free to develop those attributes of human personality
and human dignity we seek to foster in our society, the society itself
may suffer harm."[^306] Additionally, the suppression of speech can
foster low morale and narrow thinking, actually hampering the attainment
of the good order and discipline that the restrictions were meant to
achieve.[^307] Finally, at least one scholar has argued for a form of
*quid pro quo*, explaining that "\[i\]t is neither logical nor sound
policy to encourage officers to foster public relations by presenting
the viewpoint of the military departments in speeches, articles, and
books, but at the same time to discourage them from expressing any
unstereotyped views of their own."[^308]

The personal autonomy concerns may be illusory, at least to the extent
that military personnel are content with or acclimated to the
restrictions that are now in place. Even if this speculation is true,
the level of restriction should be cause for reflection. While the size
of the military has dramatically decreased following the Gulf War, the
limitations on free speech may influence the type of individual that is
now volunteering for military service. Severe speech limitations are
likely to narrow the intellectual diversity of incoming recruits.
Permitting a degree of freedom of expression could encourage "needed men
to remain in the service, while it would be hard to make service
attractive to men who regarded themselves as objects of
oppression."[^309] This suggestion in no way denigrates the capabilities
or performance of the current force structure, but serves only as a
reminder that the restrictions are not without costs and may become an
issue if a Vietnam War size mobilization is again necessary.

*2. Safety Valve for Discontent*

In the highly centralized and bureaucratic military community, griping
and complaining permits the "expression of grievances and perceived
wrongs which, if left unexpressed, might fester and grow."[^310] As
Justice Douglas noted in *Avrech*, it is common for a soldier to
complain about the conditions he is forced to endure.[^311] A commander
may, in fact, find a complete lack of unrest more troublesome than a
small degree of dissent. As one commentator has reasoned, "\[i\]f the
American temperament is considered, it seems dangerous to prevent
accumulated military discontent from being discharged through the
virtually harmless channels of griping to friends or writing letters to
the editors of service or civilian papers or to families at home."[^312]
Once the military member has voiced his complaints to members either
outside or inside the chain of command, he may feel renewed enthusiasm
for the task at hand.[^313]

Of course, military personnel who complain to family and friends pose
little to no threat to the military establishment. The more significant
question involves the proper reaction to discussions with other airmen,
letters to the editor, bumper stickers, and common workplace gripe
sessions. While the potential for the oppressive stifling of speech may
be present under the current discretion given military commanders, the
threat does not appear to have materialized. With the possible exception
of Parker and Avrech's disloyal statements during Vietnam,[^314] one is
hard-pressed to find a prosecution in Part I that would be objectionable
on these grounds. As emphasized in the next section, Parker and Avrech's
convictions occurred during the conscription of the Vietnam War when
military custom was not likely to control the proper expression of
dissent. Consequently, criminal prosecutions instead of administrative
discharges or re-assignments were justified for the purposes of
deterrence.

*3. Free Flow of Information to the Public and the Military Authorities*

Allowing military members to speak freely has the potential to assist
either the military or the political leaders of the country to make more
informed decisions. Within the military, the voicing of dissent
concerning official policies and programs may have a beneficial impact
on the efficiency of the service.[^315] However, if the matter concerns
official military matters, then the concerns or suggestion can be voiced
through formalized channels.

Between the military and the society at large, the voicing of grievances
might provide the appropriate decision-makers with information that
would be otherwise unavailable. This form of unrestricted speech might
result in more reasonable and sound policies.[^316] As Professor Vagts
has observed, "preventing unofficial opinions from competing in the
military marketplace of ideas, \[grants\] a dangerous monopoly to
official dogma that may shelter a stagnation and inefficiency we can ill
afford in these swift and perilous times."[^317] Prof. Dienes argues
that precisely because of the separate nature of the military community
there is a "vital need for channels of communication between the
military sector and civilian society."[^318] These channels are
necessary because "\[b\]oth the military and the larger civilian society
have an interest in the expression of ideas, opinions, attitudes, and
grievances by military personnel."[^319]

It can be reasoned that the value of speech as a source of information
would also increase with the knowledge of the speaker. This knowledge
may or may not correlate with the rank of the military member. While an
airman may possess first-hand information on the reliability of a
weapons system, a general would be capable of speaking to the necessary
force structure for a certain deployment. The comments of experts who
disagree with official military policy may change the public's support
for a particular issue under debate.[^320]

While the courts have not provided military members with substantial
free speech protections, Congress and the President have established at
least three channels for dissent and redress regarding matters of
official concern. Senator Nunn has highlighted that Article 138 provides
military personnel with a right to redress through the chain of
command.[^321] The military member is guaranteed by statute the right to
communicate individually with members of Congress or an Inspector
General, without incurring retaliatory action.[^322] Finally, military
personnel have the right to seek a correction of military records from
the Secretary of Defense.[^323] While these channels do permit the
airing of formal grievances, the harder question is to determine what
means of informal or merely personal expressions of disapproval should
be permitted, and if not, what type of sanctions are permissible.

**C. Protecting Military Interests From Threats Posed by**

**Civilians and Government Employees**

Although a commander may impose substantial restrictions on the speech
of military personnel, her ability to protect military interests from
threats posed by the speech of civilians and government employees is
more limited. Under the public forum doctrine, a commander can limit
access to the base so long as the restrictions are reasonable and
viewpoint-neutral. Threats from civilian activity outside of the base
remain beyond the reach of the commander. Government employees have a
First Amendment right to speak on subjects of public concern when the
individual's interests outweighs the military's interests in promoting
the efficiency of its public service. If the speech is protected, then
it cannot serve as the basis for most administrative actions.

*1. Restrictions Applicable to Civilians*

The ability of government authorities to protect the compelling
interests of the military is primarily limited to the property that the
government owns. The Supreme Court has "adopted a forum analysis as a
means of determining when the Government's interest in limiting the use
of its property to its intended purpose outweighs the interest of those
wishing to use the property for other purposes."[^324] The Court has
recognized three types of forums: traditional public forums, designated
or limited public forums, and nonpublic forums. A court's categorization
of the government property in question is critical to the permissibility
of the restriction because it determines the level of scrutiny that will
be applied. The forum analysis permits a commander to protect the
military interests only within the physical confines of the base.

Traditional public forums are those places such as streets, sidewalks
and public parks that "by long tradition or by government fiat have been
devoted to assembly or debate."[^325] Courts will apply strict scrutiny
to content-based exclusions within the public forum. If the exclusion is
a content-neutral time, place, and manner restriction, then it must be
narrowly tailored to achieve a significant government interest and leave
open ample alternative channels of communication.[^326] Applying these
standards to a military base, the Supreme Court in *Flower v. United
States* held that a base commander could not prohibit the distribution
of leaflets by a previously "barred" civilian on a street within the
base that was open to the public.[^327] As clarified by later opinions,
the controlling factors in *Flower* were that "the military ha\[d\]
abandoned any right to exclude civilian traffic and any claim of special
interest in regulating expression."[^328]

Designated public forums are the second category of government property,
and are formed when the government designates a "place or channel of
communication for use by the public at large for assembly or speech, for
use by certain speakers, or for the discussion of certain
subjects."[^329] If the government limits the use of the forum to
particular purposes for which it was created, then restrictions must
only be reasonable and viewpoint-neutral.[^330] Courts will not find
that a public forum has been created "in the face of clear evidence of a
contrary intent" or "when the nature of the property is inconsistent
with expressive activity."[^331] In *Rigdon v. Perry*, a district court
found that base chapels were designated public forums because "it has
been the government's clear intent that certain facilities on military
property (e.g., chapels) and personnel (e.g., chaplains) be dedicated
exclusively to the free exercise rights of its service people."[^332]

The third category, nonpublic forums, consists of all other government
property.[^333] Within nonpublic forums, the government may restrict
speech based upon content and "need only be reasonable, so long as the
regulation is not an effort to suppress the speaker's activity due to
disagreement with the speaker's view."[^334] In *Greer v. Spock*,[^335]
Army regulations at Fort Dix prohibiting political demonstrations and
speeches and requiring prior approval of literature were challenged both
\"facially\" and \"as applied.\" The base commander denied access to
political candidates in order to avoid the appearance of partisan
political favoritism and to preserve the training environment of the
troops.[^336] The Supreme Court held that the base was a nonpublic forum
because military authorities had not "abandoned any claim of special
interest in regulating the distribution of unauthorized leaflets or the
delivery of campaign speeches for political candidates."[^337]

It must be emphasized that when courts conduct a forum analysis to
determine whether speech restrictions are permissible, the relevant
inquiry concerns the nature of the forum and not the potential threat to
military interests. It is entirely possible that a group of civilians
shouting anti-military slogans and burning flags on a public sidewalk
outside of Andrews A.F.B. would pose a substantial threat to good order
and discipline. Undoubtedly, more than one base commander during the
Vietnam War would have relished the opportunity to assert jurisdiction
over these civilian demonstrators.

Strict limitations are placed on the government's ability to restrict
this type of civilian speech.[^338] Military commanders have the
authority *ex ante* to protect the military's interests from civilian
threats only by restricting access to the base or by regulating the
speech of those on the base in a reasonable and viewpoint-neutral
manner. The commander may also issue an exclusion order *ex post* to any
individual that poses a threat to good order and discipline, even if the
order interferes with or is based upon the exercise of First Amendment
rights.[^339] Put differently, the base commander's ability to restrict
a civilian's speech and thereby protect the military interests is
determined by whether the military "owns" the land on which the civilian
is standing.

The authority of other government officials to protect the military
interests is limited by traditional First Amendment doctrine.
Content-based restrictions must be necessary to achieve a compelling
state interest unless the speech falls into an unprotected category of
speech.[^340] Content-neutral time, place, and manner regulations must
be narrowly tailored to advance a significant government interest and
not foreclose adequate alternative channels of communication.[^341] For
example, Congress can pass a statute that makes it illegal to wear a
military uniform without authority. It cannot, however, create an
exception only for those actors that wear uniforms and portray the armed
forces in a positive manner. In *Schacht v. United States*,[^342] the
Supreme Court noted that such a statute would seem constitutional on its
face because it only has an incidental effect on speech.[^343] The
Court, however, struck the exemption clause from the statute, reasoning
that "Congress has in effect made it a crime for an actor wearing a
military uniform to say things during his performance critical of the
conduct or policies of the Armed Forces."[^344] Since the exemption was
triggered based upon the viewpoint of the actor's speech, it "cannot
survive in a country which has the First Amendment."[^345]

*2. Restrictions Applicable to Government Employees*

The government has a greater degree of latitude in protecting its
interest in the efficiency of its service from threats posed by
government employees, to include federal civil servants[^346] and
independent contractors.[^347] In *Pickering v. Bd. of Educ.*,[^348] the
Supreme Court announced a two-part balancing test to determine whether a
government employee's speech is protected by the First Amendment, and
therefore, cannot be the basis for adverse administrative action. First,
the speech must address a matter of public concern. If it does, then a
court must determine whether the employee's interest as a citizen "in
commenting on matters of public concern" is outweighed by the
government's interest as employer "in promoting the efficiency of the
public services it performs through its employees."[^349] If the
employee's rights outweigh the agency's interests, then no
administrative action may be taken against the individual.

In *Pickering*, a teacher was dismissed after sending a letter to the
local newspaper concerning a proposed tax increase.[^350] The letter was
highly critical of the way school officials had handled past bond issue
proposals and the allocation of money between educational and athletic
programs.[^351] The Court concluded that the letter addressed a matter
of public concern.[^352] Weighing in Pickering's favor was the fact that
the speech did not endanger "either discipline by immediate superiors or
harmony among coworkers,"[^353] and did not impact the actual operation
of the school.[^354] Additionally, teachers are more likely to be
informed on the issue of school fund allocation and should be able to
speak freely on the issue to inform the debate.[^355] Although facts in
the letter were false, Pickering did not make any claim of special
access or knowledge and the information was contained in the public
record.[^356] On the other hand, the school failed to show that the
speech "in any way either impeded the teacher's proper performance of
his daily duties in the classroom or to have interfered with the regular
operation of the schools generally."[^357] Therefore, Pickering's speech
was protected by the First Amendment and could not be the basis for his
dismissal.

The case of *Rankin v. McPherson*[^358] is an example of speech by a
government employee that might be subject to prosecution under Article
88 if made by a military member. McPherson was employed in a clerical
capacity in a county constable office. After hearing of the
assassination attempt on President Reagan and in the course of
discussing the administration's policies, she remarked to a co-worker
"if they go for him again, I hope they get him."[^359] The remark was
overheard by a fellow co-worker and reported to Constable Rankin. After
confirming that she did in fact make the comment, Rankin fired
her.[^360]

The Supreme Court found that the speech was protected by the First
Amendment. First, considering that it was made during a conversation of
the President's policies, the speech dealt with a matter of public
concern.[^361] The Court noted that neither the inappropriate nor
controversial nature of the statement was relevant to this determination
because debate on public issues should be "uninhibited, robust, and
wide-open."[^362] Second, the Court concluded that McPherson's free
speech interests outweighed Constable Rankin's interests in discharging
her. There was no evidence that the speech interfered with the
efficiency of the office, impaired employee relationships, or
discredited the office since the statement was not conveyed to the
public.[^363] The Court stated that where "an employee serves no
confidential, policymaking, or public contact role, the danger of the
agency's successful functioning from that employee's private speech is
minimal."[^364] Writing in dissent, Justice Scalia cautioned that the
Court's statement "is simply contrary to reason and experience."[^365]
He pointed out that it "boggles the mind" to think that McPherson had
the right to say what she did, "so that she could not only not be fired
for it, but could not be formally reprimanded for it, even prevented
from saying it endlessly into the future."[^366] Even if the employment
decision was intemperate, "we are not sitting as a panel to develop
sound principles of proportionality for adverse actions in the state
civil service."[^367]

The *Pickering* test is used to determine the permissible government
restrictions on the speech of federal civil servants.[^368] For example,
in *Sigman v. Department of the Air Force*,[^369] the Merit System
Protection Board upheld the Air Force's removal of a GS-05 for
unauthorized leave and three specifications of disrespectful, disruptive
and intimidating behavior. The employee's actions included writing a
four page memorandum that "expressed her concern over her heavy
workload, personal problems, and management's internal personnel
policies regarding distribution of work."[^370] The Board found her
speech did not address a matter of public concern because the memo was
"personal, highly critical of the appellant's supervisors, and
concern\[ed\] internal matters that are not related to the
public."[^371] Additionally, the Board concluded that the agency's
interests in promoting the efficiency of public service that it performs
outweighed her free speech interests. The memorandum was distributed to
all offices in the division and "had a very disruptive effect."[^372]
The employee's supervisor also felt "intimidated and frightened by the
memo, which contained abusive and insulting language and made references
to bodily harm."[^373]

**D. The Inadequacy of Alternative Standards**

As the preceding discussion indicates, there are at least two
alternative free speech standards currently utilized by the courts that
could be applied to the First Amendment claims of military personnel.
First, courts could apply the traditional free speech doctrine that
determines permissible restrictions on civilian expression. Second,
courts might provide military members with the same protections that are
recognized for government employees. The analysis of each standard must
consider not only the government's ability to limit the speech, but also
what types of sanctions are permitted.

Before examining the potential effectiveness of each alternative, it
must be realized that the vast majority of military personnel are not
deterred from speaking out on controversial subjects or against official
policy because of the threat of criminal sanctions. First, many military
personnel will simply agree with official policy. Second, even those who
may disagree are subject to the forces of conformity exerted by the
unwritten dictates of military custom. Because of the role of custom,
"many first amendment questions in the military will not reach the
courts . . . The military Establishment, however, must itself bear the
major responsibility for protecting first amendment values among its
commanders."[^374]

The role of military custom in shaping both the behavior and speech of
military personnel has not been lost on commentators. Although stated
over forty years ago, the observations of Professor Vagts remain true:
"A change of station, a missed promotion, a separation from active duty,
all these can bring not only temporary inconvenience but also lasting
ruin for a lifetime's career."[^375] Contrasting the effectiveness of
criminal sanctions and military custom, he further posits that "a man
who feels that a certain way of expressing himself is frowned upon by
superiors, or may be deemed contrary to the 'customs of the service,' or
may provoke a bad efficiency rating, is more likely to abstain from both
the conduct directly disapproved and conduct resembling it than a man
concerned only with avoiding a clearly defined criminal
enactment."[^376] When combined with the "judicious use of
administrative sanctions," military custom and tradition "will usually
provide a sufficient deterrent to prevent the average officer from
openly advocating major deviations from accepted policies."[^377]

As this discussion highlights, however, military custom can only be
effective if the airman actually values the approval of his peers and
seeks to remain a member of the community "in good standing." The force
of custom may be negated if the member has no intention of pursuing a
career,[^378] has become ambivalent about serving in the armed forces,
or has been inducted involuntarily. These situations may arise more
often during a large-scale draft, but is still present in the
all-volunteer force. Since a unit may be activated or deployed on very
short notice, the commander must be able to protect the military mission
and interests by applying additional sanctions when necessary. The
question then becomes whether the commander should resort to criminal
punishment or administrative sanctions, to include separation.

A few noted commentators have advocated the use of administrative
sanctions in the majority of cases. Zillman and Imwinkelried explain
that "there is serious question whether it is advisable to criminally
punish the problem soldier."[^379] Suggesting that there are many
servicemembers who are wasting both their own time and military
resources, they conclude that the prompt identification and removal of
these individuals "through noncriminal, nonstigmatizing means does not
harm any military interest."[^380] Nevertheless, Zillman and
Imwinkelried realize that many military supporters "doubtlessly view the
suggestion that military nonperformers be merely fired rather than
jailed as absurd."[^381] While this insistence upon criminal punishment
is justified on a number of grounds,[^382] the commentators suggest that
"it is possible to identify those truly unique military duties meriting
criminal sanctions."[^383]

It could be argued that the public forum analysis should be applied to
determine the free speech rights of military personnel. Under this
alternative framework, the permissibility of the restriction would not
depend upon the "status" of the individual, but instead on the physical
location of the speech. A soldier's statements on a public sidewalk
during a protest rally, off-duty and out-of-uniform, would be given the
full protections recognized for political speech. Only when the soldier
is on-base could the government impose reasonable, viewpoint neutral
regulations. In a particular case, the military may be able to restrict
on-base speech if it constitutes a clear threat to good order and
discipline and the restriction is narrowly tailored.

It could even be suggested that military personnel should be provided
the full host of free speech protections even if the speech occurs
on-base. The argument would be that since many members either live or
spend a significant amount of time on-base, the base effectively becomes
their "town" and should be treated accordingly. Therefore, an airman
speaking to other airmen in the dormitory would be granted full First
Amendment protection.

It is clear that the forum analysis is not the analytical framework
utilized by the courts reviewing free speech challenges to military
convictions. Recall that 2nd Lt. Howe was convicted under Article 88 for
his participation in an off-base Vietnam War sidewalk
demonstration.[^384] Additionally, Stone was convicted under Article 134
for delivering a false presentation to a high school assembly.[^385]
Instead, the military member remains subject to the prohibitions
contained in the UCMJ regardless of whether the speech is in a public
forum. The fact the speech is uttered in a public form is relevant only
to the extent that it is evidence of the actual commission of the crime,
i.e., whether it was discrediting to the service.

The key to understanding why the military is permitted to restrict the
speech of military personnel off-base can be discerned by examining the
underlying compelling government interests that are advanced. Military
regulations operate to protect the maintenance of good order and
discipline, the reputation of the service in the public eye, and a
politically-disinterested force. These threats may materialize whether
the servicemember is on-base or off. For example, a group of soldiers
planning an on-base political protest would pose a threat to good order
and discipline whether the discussions took place in the squadron room,
the dormitory, or at an off-base coffee shop. Because of the critical
importance of unit cohesion to the readiness and discipline of the
military, the military must be able to restrict this type of activity.

Many commentators may view these restrictions as oppressive and argue
that personal autonomy concerns and the interest in the free flow of
information require more generous free speech protections. Congress and
the President, however, have established a variety of official channels
that protect and guarantee military personnel the right to air
grievances. Additionally, as the regulations governing members'
political activity highlight,[^386] the commander's discretion has been
limited to those activities that pose a threat to good order and
discipline. Courts remain willing to review irrational, invidious or
arbitrary application of these regulations, and the absence of such
findings is a testament to the responsible use of discretion by military
commanders.

It appears that strong arguments can be made to rebut assertions that
the traditional civilian First Amendment standards would be adequate to
safeguard the military's interests. At least one commentator, however,
has called on the courts to evaluate the free speech claims of military
personnel under the same two-prong *Pickering* test applicable to
government employees and federal civil servants.[^387] Only two courts
have adopted this test, and both cases involved the free speech claims
of military reservists.[^388]

At first glance, this suggestion seems reasonable for two reasons.
First, the majority of free speech challenges reviewed in Part I arose
out of either Vietnam or the Gulf War. Second, even for those cases
arising during peacetime, the application of the *Pickering* test would
not appear to alter the courts' ultimate free speech determinations. For
example, in the Article 134 convictions for indecent language,[^389] the
speech does not appear to address any matter of public concern. In those
cases involving speech or expressive conduct that might address a matter
of public concern, such as desecrating the flag[^390] or making comments
about the President,[^391] the military's interests in the efficiency of
the service and the maintenance of proper "employee relationships" would
seem to trump any individual interest in expression.

Even if the ultimate resolution of the cases would not change, there are
at least two reasons why courts should not apply the *Pickering* test to
free speech claims arising during peacetime. First, this distinction
fails to consider the critical importance of readiness and unit
cohesion. In the current world environment, personnel may be called into
a potential combat situation on extremely short notice. Commanders do
not have the luxury of rectifying dissension within the ranks on the
plane ride overseas. Additionally, as the Supreme Court noted in *Brown
v. Glines*, military personnel can be called to assist with civil
disorder or a natural disaster even if a combat situation is not a
foreseeable possibility.[^392]

Second, even in peacetime the court's application of the *Pickering*
test would be an intrusive and disruptive inquiry into the personnel
decisions of the military. Courts would be able to review not only
criminal prosecutions under the UCMJ, but also administrative discharges
and re-assignments. The military would be forced to expend a tremendous
amount of time and effort justifying each prosecution or personnel
decision challenged by a disgruntled airman. Even in peacetime, the
potential disruption to both commanders and the military community is
severe. The Supreme Court recognized the intrusive nature of this type
of examination in *Orloff v. Willoughby*.[^393] Although Orloff had been
lawfully inducted into the service, he was denied a commission after he
refused to provide information on the loyalty certificate. He requested
the court to order the military to either commission him in the Medical
Corps or discharge him. In holding that Orloff did not have *habeas
corpus* to obtain judicial review of the commissioning decision, the
Court noted that while Orloff's claim was under consideration by the
courts "he has remained in the United States and successfully avoided
foreign service until his period of induction is almost past.
Presumably, some doctor willing to tell whether he was a member of the
Communist Party has been required to go to the Far East in his
place."[^394]

Even during the turmoil created by the Vietnam War, courts were
reluctant to examine the military's personnel decisions. In *Cortright
v. Resor*,[^395] the Second Circuit refused to interfere with an Army's
transfer and reassignment decision. Cortright, a member of an Army band
unit, was transferred from New York to Texas following his involvement
in a number of Vietnam War protests. As explained by the commanding
General, Cortright's actions were "weakening \[the band's\] general
morale, its discipline and effectiveness" and the transfer was meant to
strengthen the band's mission and make it a better military unit.[^396]
Relying heavily on the Supreme Court's decision in *Orloff*, the court
held that:

> \[T\]he Army has a large scope in striking the proper balance between
> servicemen's assertions of the right to protest and the maintenance of
> the effectiveness of military units to perform their assigned
> tasks---even such a relatively unimportant one as a military band's
> leading a Fourth of July parade. Any other holding would stimulate
> 'the flood of unmeritorious applications that might be loosed by such
> interference with the military's exercise of discretion and the effect
> of the delays caused by these in the efficient administration of
> personnel who have voluntarily become part of the armed forces.[^397]

Although there are strong arguments against the courts adopting the
*Pickering* test to adjudge the free speech claims of military
personnel, the test is not antithetical to the protection of military
interests. Legal advisors should encourage military commanders to
consider the protections afforded by the two-prong test in deciding
whether to initiate actions against a member as well as the sanction to
be imposed. This consideration is important because of the perceptions
of inequality created by the blind application of one set of free speech
protections for government employees and another set of protections for
military personnel. Given the increased presence of both government
employees and independent contractors within the military environment,
this observation may be particularly true.

Imagine that a government employee during the Gulf War explains that he
does not believe that the United States should engage in foreign wars
for the purpose of protecting access to crude oil. This speech would
address a matter of public concern. Depending upon the position of the
employee in the organization and the impact of the speech on the
efficiency of the office, his speech might be protected. If a court
determines that the speech is protected, the government would not be
able to fire him, impose administrative sanctions or even prevent him
from saying it again. On the other hand, if a military member made the
statement, then the speech is arguably unprotected. The comment appears
to attack the war aims of the government and, therefore, would seem to
at least meet the formal definition of a disloyal statement as outlined
in Article 134.[^398] Consequently, he would be subject to criminal
prosecution.

Although prosecution for this statement appears highly unlikely in this
scenario, the threat to the underlying military interests does not seem
to be dependent on the identity of the speaker. In *Brown v. Glines*,
the Supreme Court recognized that the "\[u\]nauthorized distributions of
literature by military personnel are just as likely to undermine
discipline and morale as similar distributions by civilians."[^399]
Therefore, if the military member is subject to prosecution while the
government employee is protected, then a feeling of inequality is likely
to pervade the workplace. Even if the government employee's speech is
not protected, the most severe type of sanction that can be imposed is
some form of adverse administrative action.

Consequently, the military commander should be advised to initiate
criminal prosecutions in two instances. First, prosecutions should be
sought when the speech poses a serious threat of actual or potential
harm to military interests that substantially outweighs any interest in
personal autonomy or the free flow of information to the public. For
example, if the airman attempts to publish and distribute literature
that advocates the overthrow of the government, then prosecution under
Article 134 seems completely justified.

Second, commanders should also be advised to proceed with criminal
sanctions in circumstances where military custom is likely to be
ineffective. In these instances, prosecutions would serve as a
significant deterrence to future disruptive speech. Although the
determination is case specific, custom is less likely to be effective
when acceptance and advancement within the military community is not
valued by either an individual or a distinct group of individuals. These
conditions are more likely to be experienced when the retention rates
within the military are declining and when service conditions become
especially harsh. In this manner, the commander can create a sufficient
incentive for the member to honorably fulfill his service obligation.

**III. CONCLUSION**

The application of the First Amendment to the military community remains
an important yet divisive endeavor. Courts have recognized that the
Constitution places the primary responsibility for regulating and
maintaining the military in the Legislative and Executive branches.
Because of the unique nature of the military's mission, courts realize
that many of the traditional First Amendment values must be conditioned
by the countervailing needs of the military. Consequently, military
commanders are permitted to restrict and punish the speech of
servicemembers when the good order and discipline of the service is
threatened. Speech that is otherwise "private" or occurs off-base
nevertheless remains subject to regulation through the application of
either the specific Articles of the UCMJ, service regulations, or the
specific orders of commanders. Courts remain willing to review
irrational, arbitrary, or invidious applications of these restrictions.

The judicial deference to the military and the substantial discretion
possessed by commanders may be troubling to many. It is necessary,
however, for the continued maintenance of the military as an effective
and efficient fighting force. The free speech rights of military
personnel may seem sharply curtailed when contrasted with the rights of
civilians. A review of the limitations on the right of civilians to
speak on-base and government employees to disrupt the workplace
indicates, however, that the speech restrictions on military members are
consistent with the special purposes of the military.

Most free speech issues in the military community will never be
litigated before the courts. Consequently, military commanders must in
the first instance balance the free speech rights of military personnel
and the needs of the military. By carefully assessing the competing
arguments both for and against permitting members to speak on various
issues in a variety of circumstances, legal advisors will continue to
constitute an indispensable source for prudent and responsible
recommendations.

[^1]: \* *Captain Carr (B.S., United States Air Force Academy, J.D.,
    Harvard Law School, M.P.P., John F. Kennedy School of Government,
    Harvard University) is an Assistant Staff Judge Advocate at
    Ellsworth Air Force Base, South Dakota. The author would like to
    thank Professor Fred Schauer, Frank Stanton Professor of the First
    Amendment, John F. Kennedy School of Government, for the insightful
    comments and helpful suggestions he conveyed during the supervision
    of this article. The author would also like to thank Andre Barry,
    Jamison Colburn, Amy Kroe, Douglas Kysar, and Ken Ludwig for
    reviewing earlier drafts of this article.*

    ^?^ This statement is a compilation of comments made by military
    personnel either in the cases discussed within this article or
    overheard by the author during the last eight years. It is provided
    to facilitate the following discussion and in no way represents the
    views or opinions of the author.

[^2]: The First Amendment provides that "Congress shall make no law. . .
    abridging the freedom of speech. . . " [U.S. Const.]{.smallcaps}
    amend I.

[^3]: [Manual for Courts-Martial]{.smallcaps}, United States (1995 ed.)
    \[hereinafter MCM\], Rule for Courts-Martial 202 \[hereinafter
    R.C.M.\], (outlining limitations on personal jurisdiction); R.C.M.
    203, (outlining limitations on subject-matter jurisdiction); *See
    also* Solorio v. United States, 483 U.S. 435, 436 (1987) (explaining
    jurisdiction in courts-martial depends solely on the accused's
    status as a person subject to the UCMJ and not on the
    "service-connection" of the offense).

[^4]: Donald N. Zillman and Edward J. Inwinkelried, *Constitutional
    Rights and Military Necessity: Reflections on the Society Apart*,
    [51 Notre Dame L. Rev.]{.smallcaps} 396, 397 (1976) \[hereinafter
    Zillman and Imwinkelried II\].

[^5]: *See, e.g.,* Earl Warren, *The Bill of Rights and the Military*,
    37 [N.Y.U. L. Rev.]{.smallcaps} 181 (1962); Detlev F. Vagts, *Free
    Speech in the Armed Forces*, 57 [Colum. L. Rev.]{.smallcaps} 187
    (1957).

[^6]: *See, e.g.,* Zillman and Imwinkelried II, supra note 4; Donald N.
    Zillman, *Free Speech and Military Command*, 1977 [Utah L.
    Rev.]{.smallcaps} 423 (1977); Donald N. Zillman and Edward J.
    Inwinkelried, *An Evolution in the First Amendment: Overbreadth
    Analysis and Free Speech Within the Military Community*, 54 [Tex. L.
    Rev.]{.smallcaps} 42 (1975) \[hereinafter Zillman and Imwinkelried
    I\]; Edward F. Sherman, *The Military Courts and Servicemen's First
    Amendment Rights*, 22 [Hastings L.J.]{.smallcaps} 325 (1971).

[^7]: A notable addition to the debate concerning the separate community
    rationale during this time period is James M. Hirschhorn, *The
    Separate Community: Military Uniqueness and Servicemen's
    Constitutional Rights*, 62 [N.C. L. Rev.]{.smallcaps} 177 (1984).

[^8]: Goldman v. Weinberger, 475 U.S. 503 (1986) (holding that military
    is not required by the Free Exercise Clause of the First Amendment
    to provide exception to uniform dress regulations for wearing of
    yarmulke). *See generally* First Lieutenant Dwight H. Sullivan, *The
    Congressional Response to* Goldman v. Weinberger, 121 [Mil. L.
    Rev.]{.smallcaps} 125 (1988); *Military Ban on Yarmulkes*, 100
    [Harv. L. Rev.]{.smallcaps} 163, 172 (1986) (concluding that the
    Court's refusal in the case to "establish guidelines for government
    action when that action impinges upon constitutionally protected
    interests . . . sends a legitimating message to military officials
    prone to suppress the individuality of service personnel and leaves
    unanswered the question of when, if ever, the Court is prepared to
    defend the liberties of Americans who serve their country in the
    armed forces"); Lt. Richard G. Vinet, USNR, Comment and Note,
    Goldman v. Weinberger: *Judicial Deference to Military Judgment in
    Matters of Religious Accommodation of Servicemembers*, 36 [Naval L.
    Rev.]{.smallcaps} 257 (1986); Felice Wechsler, Comment, Goldman v.
    Weinberger: *Circumscribing the First Amendment Rights of Military
    Personnel*, 30 [Ariz. L. Rev.]{.smallcaps} 349 (1988) (expressing
    belief that the decision is the "latest in a long line of Supreme
    Court cases giving virtually unlimited deference to military
    decisionmaking where the constitutional rights of service people
    conflict with claimed military necessity."). *See also* 10 U.S.C. §
    774 (West 1998) providing that military members may wear items of
    religious apparel except when the Secretary of the individual
    service determines that "wearing of the item would interfere with
    the performance of the member\'s military duties;" or when the
    Secretary determines by regulation that "the item of apparel is not
    neat and conservative."

[^9]: *See* Department of Defense Directive 1304.26, Qualification
    Standards for Enlistment, Appointment, and Induction (Dec. 21 1993);
    DOD Directive 1332.14, Enlisted Administrative Separations (Dec. 21,
    1993); DOD Directive 1332.30, Separation of Regular and Reserve
    Commissioned Officers (Mar. 14, 1997); 32 C.F.R. § 41, App. A
    (1992), (codified at 10 U.S.C. § 654 (1994)). For First Amendment
    examinations of the Directives, see generally Daniel S. Alter,
    *Confronting The Queer And Present Danger: How To Use The First
    Amendment When Dealing With Issues Of Sexual Orientation Speech And
    Military Service*, 22-SUM [Hum. Rts.]{.smallcaps} 22 (1995); Jeffrey
    S. Davis, *Military Policy Toward Homosexuals: Scientific,
    Historical, And Legal Perspectives*, 131 [Mil. L. Rev.]{.smallcaps}
    55 (1991); Walter J. Krygowski, Comment, *Homosexuality And The
    Military Mission: The Failure Of The \"Don\'t Ask, Don\'t Tell\"
    Policy*, 20 [U. Dayton L. Rev.]{.smallcaps} 875 (1995); David A.
    Schlueter, *Gays And Lesbians In The Military: A Rationally Based
    Solution To A Legal Rubik\'s Cube*, 29 [Wake Forest L.
    Rev.]{.smallcaps} 393 (1994); Scott W. Wachs, *Slamming The Closet
    Door Shut:* Able, Thomasson *And The Reality Of \"Don\'t Ask, Don\'t
    Tell\",* 41 [N.Y.L. Sch. L. Rev.]{.smallcaps} 309 (1996); Kenneth
    Williams, *Gays In The Military: The Legal Issues*, 28 [U.S.F. L.
    Rev.]{.smallcaps} 919 (1994).

[^10]: *See e.g.,* Vojvodich v. Lopez, 48 F.3d 879 (5th Cir. 1995),
    *cert. denied,* 516 U.S. 861 (1995); Horton v. Taylor, 767 F.2d 471
    (8th Cir. 1985), *aff'd,* 817 F.2d 476 (8th Cir. 1987); Hughes v.
    Whitmer, 714 F.2d 1407 (8th Cir. 1983), *cert. denied,* 465 U.S.
    1023 (1984).

[^11]: *See, e.g.,* Mings v. Department of Justice, 813 F.2d 384 (5th
    Cir. 1987); Johnson v. Department of Justice, 65 M.S.P.B. 46 (1994)
    (stating racially derogatory comments about co-worker made in the
    presence of other agency personnel while on duty did not relate to
    matter of public concern), *appeal dismissed*, 48 F.3d 1236 (Fed.
    Cir. 1995) (unpublished disposition); Means v. Department of Labor,
    60 M.S.P.B. 108 (1993) (explaining disruptive, insubordinate, and
    disrespectful conduct and speech relating to workload and
    performance standards were not related to matter of public concern);
    Jackson v. Small Business Admin., 40 M.S.P.B. 137 (1989); Sigman v.
    Department of the Air Force, 37 M.S.P.B. 352 (1988) (holding speech
    that addresses internal agency complaints but not issues of concern
    to the community do not relate to matters of public concern),
    *aff'd*, 868 F.2d 1278 (Fed. Cir. 1989) (unpublished disposition);
    Barnes v. Department of the Army, 22 M.S.P.B. 243 (1984); Curry v.
    Department of the Navy, 13 M.S.P.B. 327 (1982).

[^12]: In *Board of County Commissioners v. Umbehr*, 518 U.S. 668
    (1996), the Supreme Court, per Justice O'Connor, held that the First
    Amendment protects independent contractors from government
    termination or prevention of automatic renewal of at-will contracts
    in retaliation for contractor's speech, and such claims will be
    evaluated under the balancing test outlined in *Pickering v. Board
    of Educ.*, 391 U.S. 563 (1968).

[^13]: The federal government's guidelines for privatization are
    outlined in [Office of Management and Budget Circular]{.smallcaps}
    A-76 (Aug. 4, 1983).

[^14]: *See, e.g.,* Solorio v. United States, 483 U.S. 435, 447 (1987)
    ("Decisions of this Court . . . have also emphasized that Congress
    has primary responsibility for the delicate task of balancing the
    rights of servicemen against the needs of the military."); Rostker
    v. Goldberg, 453 U.S. 57, 70 (1981) ("Nor can it be denied that the
    imposing number of cases from this Court \[previously cited\]
    suggest that judicial deference to such congressional exercise of
    authority is at its apogee when legislative action under the
    congressional authority to raise and support armies and make rules
    and regulations for their governance is challenged."); ("The
    responsibility for determining how best our Armed Forces shall
    attend to \[fighting or being ready to fight wars\] rests with
    Congress, see U.S. [Const.]{.smallcaps}, Art. I, § 8, cls. 12-14,
    and with the President. See U.S. [Const]{.smallcaps}. Art. II, § 2,
    cl. 1.") *Id.* at 71 (quoting Schlesinger v. Ballard, 419 U.S. 498,
    510 (1975)).

[^15]: *See, e.g.,* United States v. Priest, 45 C.M.R. 338, 344 (C.M.A.
    1972) ("In the armed forces some restrictions exist for reasons that
    have no counterpart in the civilian community. . . . The armed
    forces depend on a command structure that at times must commit men
    to combat, not only hazarding their lives but ultimately involving
    the security of the Nation itself.").

[^16]: *See, e.g.,* Brown v. Glines, 444 U.S. 348, 354 (1980) ("To
    ensure that they always are capable of performing their mission
    promptly and reliably, the military services 'must insist upon a
    respect for duty and a discipline without counterpart in civilian
    life.'") (quoting Schlesinger v. Councilman, 420 U.S. 738, 757
    (1975)); Parker v. Levy, 417 U.S. 733, 758 (1974) ("\[T\]he
    different character of the military community and of the military
    mission," based upon the "fundamental necessity for obedience" and
    "necessity for imposition of discipline, may render permissible
    within the military that which would be constitutionally
    impermissible outside it.").

[^17]: *See, e.g.,* Parker v. Levy, 417 U.S. 733, 744 (1974) (In order
    to "maintain the discipline essential to perform its mission
    effectively, the military has developed what 'may not unfitly be
    called the customary military law' or 'general usage of the military
    service.'") (quoting Martin v. Mott, 25 U.S. (12 Wheat.) 19, 35, 6
    L.Ed. 537 (1827)).

[^18]: Hon. Sam Nunn, *The Fundamental Principles of the Supreme Court's
    Jurisprudence in Military Cases*, [January 1995]{.smallcaps} [Army
    Law.]{.smallcaps} 27 (1995).

[^19]: C. Thomas Dienes, *When the First Amendment is Not Preferred: The
    Military and Other Special "Contexts",* 56 [U. Cin. L.
    Rev.]{.smallcaps} 779, 799 (1988). Prof. Dienes comments that:

    > Justice Rehnquist's opinion for the Court in \[Goldman v.
    > Weinberger, 475 U.S. 503 (1986)\] reflects two characteristics
    > common to most judicial treatment of the first amendment claims in
    > the military context. First, there is an insensitivity, or perhaps
    > more exactly, a lack of attention to and concern with the burden
    > on the litigant's first amendment rights. Second, there is a
    > strong deference to the special needs of the military's separate
    > society and an unwillingness to review the military's judgment on
    > the importance of the interests served by the regulation and the
    > need for the restriction to satisfy that interest.

    *Id.* at 808 (footnote omitted).

[^20]: Zillman and Imwinkelried II, *supra* note 4, at 400.

[^21]: Rigdon v. Perry, 962 F.Supp. 150, 165 (D.D.C. 1997) ("What we
    have here is the government's attempt to override the Constitution
    and the laws of the land") (granting motion for summary judgment and
    preliminary injunction based on First Amendment freedom of speech
    and religion against military's attempt to prevent chaplain from
    urging congregation to contact Congress on pending legislation).

[^22]: Holmes v. California Army National Guard, 124 F.3d 1126, 1139
    (9th Cir. 1997) (Reinhardt, J., dissenting) ("From General
    Eisenhower on, up and down the ranks, even to Commander-in-Chief,
    there are many who would have had to forfeit their positions had the
    military's code of sexual conduct been strictly and honestly
    enforced.").

[^23]: [U.S. Const.]{.smallcaps} art. I, § 8, cl. 12.

[^24]: [U.S. Const.]{.smallcaps} art. I, § 8, cl. 13.

[^25]: [U.S. Const.]{.smallcaps} art. I, § 8, cl. 14.

[^26]: [U.S. Const.]{.smallcaps} art. II, § 2, cl. 1.

[^27]: Nunn, *supra* note 18, at 33. *See also* Orloff v. Willoughby,
    345 U.S. 83, 93-94 (1953) ("The responsibility for setting up
    channels through which such grievances can be considered and fairly
    settled rests upon the Congress and upon the President of the United
    States and his subordinates.").

[^28]: Dienes, *supra* note 19, at 822.

[^29]: *Id.* *Cf.* Goldman v. Weinberger, 475 U.S. 503, 513-14 (1986)
    (Brennan, J., dissenting) ("The Court's response to Goldman's
    request \[for exception to Air Force uniform regulations to wear
    yarmulke\] is to abdicate its role as principal expositor of the
    Constitution and protector of individual liberties in favor of
    credulous deference to unsupported assertions of military
    necessity.").

[^30]: Warren, *supra* note 5, at 187.

[^31]: *Id.*

[^32]: Parker v. Levy, 417 U.S. 733, 748 (1974) (quoting Smith v.
    Whitney, 165 U.S. 553, 562 (1897)). *See infra* notes 72-73 and
    accompanying text.

[^33]: Orloff. V. Willoughby, 345 U.S. 83, 93-94 (1953). In Orloff, the
    defendant was lawfully inducted into the service but was denied a
    commission and assignment to the Medical Corps because he refused to
    supply certain information on the loyalty certificate. *Id.* at 89.
    He petitioned "the courts, by habeas corpus, to discharge him
    because he has not been assigned to the specialized duties nor given
    the commissioned rank to which he claims to be entitled by the
    circumstances of his induction." *Id.* at 84. The Supreme Court held
    that while Orloff could not be punished for refusing to furnish the
    information, the President was under no obligation to commission him
    as an officer---a position of honor and trust---if he did. *Id.* at
    91. The Court also held that since Orloff was lawfully inducted into
    the service, he did not have *habeas corpus* to obtain judicial
    review of the military's assignment decision. *See also* Goldman v.
    Weinberger, 475 U.S. 503, 507 (1986) ("In the context of the present
    case, when evaluating whether the military needs justify a
    particular restriction on religiously motivated conduct, courts must
    give great deference to the professional judgment of military
    authorities concerning the relative importance of a particular
    military interest.").

[^34]: Parker v. Levy, 417 U.S. 733 (1974). *See infra* notes 65-95 and
    accompanying text.

[^35]: *Id.* at 743.

[^36]: *Id.* (quoting United States ex rel. Toth v. Quarles, 350 U.S.
    11, 17 (1955)).

[^37]: *Id.*

[^38]: *Id.* at 744 (quoting In re Grimley, 137 U.S. 147, 153 (1890)).

[^39]: *Id.* (quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)
    (plurality opinion)).

[^40]: *Id.* (quoting Martin v. Mott, 25 U.S. (12 Wheat.) 19, 35, 6
    L.Ed. 537 (1827)).

[^41]: Goldman v. Weinberger, 475 U.S. 503, 507 (1986).

[^42]: Warren, *supra* note 5, at 188.

[^43]: United States v. Jacoby, 29 C.M.R. 244, 246-47 (C.M.A. 1960).

[^44]: *See, e.g.,* United States v. Curtis, 44 M.J. 106, 130 (C.A.A.F.
    1996) ("The defense argues that the language \[of the Fifth
    Amendment\], 'when in actual service in time of War or public
    danger' limits the military exclusion. This argument was long ago
    rejected by the Supreme Court, which said 'that the words, \...
    \'when in actual service in time of war or public danger\'\... apply
    to the militia only.'\" (quoting Johnson v. Sayre, 158 U.S. 109, 115
    (1895)) *rev'd on other grounds per curiam*, 46 M.J. 129 (C.M.A.
    1997).

[^45]: United States v. Gray, 37 M.J. 751, 755 (A.C.M.R. 1993) (citing
    Ex Parte Quirin, 317 U.S. 1 (1942); Ex parte Milligan, 71 U.S. (4
    Wall) 2 (1866); United States v. McClain, 22 M.J. 124 (C.M.A.
    1986)).

[^46]: United States v. McCarthy, 38 M.J. 398, 402 (C.M.A. 1993) ("This
    Court has observed, 'Since the military is, by necessity, a
    specialized society separate from civilian society, . . . it is
    foreseeable that reasonable expectations of privacy within the
    military society will differ from those in the civilian society.'\"
    (quoting United States v. Middleton, 10 M.J. 123, 127 (C.M.A.
    1981)). In the military setting, a commander who issues a search
    authorization does not have to be a judicial officer, the warrant
    does not have to be in writing or supported by oath or affirmation,
    and general inspections may be ordered without probable cause and
    without the specificity required for a typical warrant. *See e.g.,*
    United States v. Lopez, 35 M.J. 35, 45 (C.M.A. 1992) (Cox, J.,
    concurring).

[^47]: Zillman, *supra* note 6, at 429 (citing [L. Levy, Legacy of
    Suppression, Freedom of Speech and Press in Early American
    History]{.smallcaps} (Torch Book ed. 1963); Weiner, *Courts-Martial
    and the Bill of Rights: The Original Practice*, 72 [Harv. L.
    Rev.]{.smallcaps} 1, 266 (1958)).

[^48]: Nunn, *supra* note 18, at 32.

[^49]: Stephanie A. Levin, *The Deference that is Due: Rethinking the
    Jurisprudence of Judicial Deference to the Military*, 35 [Vill. L.
    Rev]{.smallcaps}. 1009, 1023-61 (1990). Professor Levin examines the
    historical opposition to a standing army preceding and surrounding
    the ratification of the Constitution. She argues that the Founding
    Fathers did not envision or anticipate today's enormous military
    establishment, and instead preferred to rely upon a citizen militia
    that would retain connections to civilian life and civil liberties.
    Consequently, she concludes that it "is inappropriate to judge this
    'standing army' and a temporary army with the same yardstick of
    military necessity." *Id.* at 1058.

[^50]: *See infra* notes 89-90 and accompanying text.

[^51]: Warren, *supra* note 5, at 188.

[^52]: *See, e.g.,* UCMJ, Article 81---Conspiracy, Article
    82---Solicitation, Article 83---Fraudulent enlistment, appointment,
    or separation, Article 104---Aiding the Enemy. *See* *e.g.*, United
    States v. Bayes, 22 C.M.R. 487 (A.B.R. 1956), *review denied*, 23
    C.M.R. 421 (C.M.A. 1957); United States v. Batchelor, 19 C.M.R. 452
    (A.B.R. 1955), *aff'd*, 22 C.M.R. 144 (C.M.A. 1956)), Article
    107---False official statement, Article 123---Forgery, Article
    127---Extortion, Article 128---Assault, Article 131---Perjury,
    Article 132---Frauds against the United States, Article 132---(False
    Swearing), Article 134---(Perjury: subornation of), Article
    134---(Requesting commission of offense), Article 134---(Soliciting
    another to commit an offense), Article 134---(Threat or hoax:bomb),
    Article 134---(Threat, communicating).

[^53]: Frederick Schauer, *Categories and the First Amendment: A Play in
    Three Acts*, 34 [Vand. L. Rev.]{.smallcaps} 265, 274 (1981). In this
    article, Prof. Schauer presents an excellent discussion of the
    distinction between the coverage and protection of the First
    Amendment. *See also* Frederick Schauer, *Must Speech Be Special?*,
    78 [Nw. U. L. Rev.]{.smallcaps} 1284 (1983).

[^54]: UCMJ, Article 116---Riot or breach of the peace provides: "Any
    person subject to this chapter who causes or participates in any
    riot or breach of the peace shall be punished as a court-martial may
    direct." *Cf*. Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam)
    (explaining advocacy must be directed to incite imminent lawless
    action and be likely to produce such action).

[^55]: UCMJ, Article 117---Provoking speeches or gestures provides: "Any
    person subject to this chapter who uses provoking or reproachful
    words or gestures towards any other person subject to this chapter
    shall be punished as a court-martial may direct." The accompanying
    explanation states that the "provoking" and "reproachful" words are
    those "which a reasonable person would expect to induce a breach of
    the peace under the circumstances." MCM, *supra* note 3, Part IV, ¶
    42(c)(1). *Cf*. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
    (holding fighting words which by their very utterance inflict injury
    or tend to incite an immediate breach of the peace are unprotected
    by the First Amendment). *See also* United States v. Johnson, 45
    C.M.R. 53 (C.M.A. 1972).

[^56]: Article 134, UCMJ, [MCM]{.smallcaps}, *supra* note 3, Part IV, ¶
    60. *See generally* James K. Gaynor, *Prejudicial and Discreditable
    Military Conduct: A Critical Appraisal of the General Article*, 22
    [Hastings L.J.]{.smallcaps} 259 (1971).

[^57]: MCM, *supra* note 3, Part IV, ¶ 60(a).

[^58]: *Id.*

[^59]: *Id.* ¶ 60(c)(3).

[^60]: *Id.* ¶ 60(a).

[^61]: 18 U.S.C. § 13.

[^62]: MCM, *supra* note 3, Part IV, ¶ 60(c)(4).

[^63]: *Id.* ¶ 72.

[^64]: *Id.* ¶ 89.

[^65]: Parker v. Levy, 417 U.S. 733 (1974). *See generally* Robert N.
    Strassfeld, *The Vietnam War on Trial: The Court-Martial of Dr.
    Howard B. Levy*, 1994 [Wis. L. Rev.]{.smallcaps} 839 (1994).

[^66]: *Id.* at 736.

[^67]: The record described the following statement as representative:

    > The United States is wrong in being involved in the Viet Nam War.
    > I would refuse to go to Viet Nam if ordered to do so. I don't see
    > why any colored soldier would go to Viet Nam: they should refuse
    > to go to Viet Nam and if sent should refuse to fight because they
    > are discriminated against and denied their freedom in the United
    > States, and they are sacrificed and discriminated against in Viet
    > Nam by being given all the hazardous duty and they are suffering
    > the majority of casualties. If I were a colored soldier I would
    > refuse to go to Viet Nam and if I were a colored soldier and were
    > sent I would refuse to fight. Special Forces personnel are liars
    > and thieves and killers of peasants and murders of women and
    > children.

    *Id.* at 736-37.

[^68]: Parker v. Levy, 478 F.2d 772 (3rd Cir. 1973), *rev'd*, 417 U.S.
    733 (1974).

[^69]: Parker, 417 U.S. at 741-42.

[^70]: Justice Douglas, Stewart, and Brennan dissented. Justice Marshall
    did not participate. *Id.* at 735.

[^71]: *See supra* notes 34-40 and accompanying text.

[^72]: Parker, 417 U.S. at 748 (quoting Swaim v. United States, 165 U.S.
    553 (1897) (quoting Smith v. Whitney, 116 U.S. 178 (1886))).

[^73]: *Id.* at 748-49 (quoting Swaim v. United States, 28 Ct.Cl. 173,
    228 (1893)).

[^74]: *Id.* at 750-51.

[^75]: *Id.* at 751.

[^76]: *Id.* The Court cited Article 137, 10 U.S.C. § 937, which
    requires that the Code's provisions be "carefully explained to each
    enlisted member at the time of his entrance on active duty, or
    within six days thereafter" and that a complete text of the UCMJ and
    subsequent regulations be "made available to any person on active
    duty, upon his request, for his personal examination." *Id*. at
    751-52.

[^77]: *Id.* at 752. The effect of this interpretation was to supply
    "considerable specificity by way of examples of the conduct which
    they cover," which had been further supplemented by "less formalized
    custom and usage." *Id.* at 754.

[^78]: *Id.* at 756.

[^79]: *Id.* at 756-57.

[^80]: *Id.* at 756.

[^81]: *Id.* at 757.

[^82]: Overbreadth doctrine has been described alternatively as either
    providing the accused with standing to assert a third-parties
    interests or requiring that the accused be sanctioned by a
    constitutionally valid rule of law. *See* Richard H. Fallon, Jr.,
    *Making Sense of Overbreadth*, 100 [Yale L.J.]{.smallcaps} 853, 867
    (1991); Henry P. Monaghan, *Overbreadth*, 1981
    [Sup.Ct.Rev.]{.smallcaps} 1 (1981), *edited and reproduced in* [The
    First Amendment: A Reader]{.smallcaps} 276 (John H. Garvey and
    Frederick Schauer eds., 2d ed. 1996). Under the latter description,
    the Court is concerned with the "fit" of the law with the stated
    governmental interests that it seeks to advance. It has been
    observed, therefore, that "the Court has reached interchangeably to
    'overbreadth' and 'least restrictive alternative' challenges both
    inside and outside the First Amendment context." Consequently, if
    the Court is unconcerned with the precise fit of the law, as it is
    when conducting mere rationality review, then "statutory
    'overbreadth' is not a meaningful objection as a matter of
    substantive constitutional doctrine." quoting Monaghan, at 37-39.

[^83]: Parker, 417 U.S. at 758 (quoting Gooding v. Wilson, 405 U.S. 518,
    520-521 (1972)).

[^84]: *Id.*

[^85]: *Id.* at 758-59 (quoting 45 C.M.R. 338, 344 (C.M.A. 1972) (citing
    Brandenburg v. Ohio, 395 U.S. 444 (1969); United States v. Gray, 42
    C.M.R. 255 (1970))).

[^86]: *Id.* at 760 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 611
    (1973)).

[^87]: *Id.*

[^88]: *Id.* at 761 (Stewart J., dissenting).

[^89]: *Id.* at 781 (Stewart, J., dissenting).

[^90]: *Id.* at 783 (Stewart, J., dissenting).

[^91]: *Id.* at 787 (Stewart, J., dissenting).

[^92]: *Id.* at 788 (Stewart, J., dissenting).

[^93]: *Id.* at 789 n.42 (Stewart, J., dissenting).

[^94]: *Id.* at 789 (Stewart, J., dissenting).

[^95]: *Id.* (Stewart, J., dissenting).

[^96]: Secretary of the Navy v. Avrech, 418 U.S. 676 (1974) (per
    curiam).

[^97]: *Id.* at 676.

[^98]: *Id.* at 676-77.

[^99]: *Id*. at 677 (citing 477 F.2d 1237 (1973)).

[^100]: *Id.* at 678.

[^101]: *Id.* at 678 (Douglas, J., dissenting).

[^102]: Avrech typed out the following, somewhat ironic statement and
    planned to have it copied and distributed. Instead, it was given to
    a superior officer.

    > It seems to me that the South Vietnamese people could do a little
    > for the defense of their country. Why should we go out and fight
    > their battles while they sit at home and complain about communist
    > aggression. What are we, cannon fodder or human beings? . . . The
    > United States has no business over here. This is a conflict
    > between two different politically minded groups. Not a direct
    > attack on the United States. . . .We have peace talks with North
    > Vietnam and the V.C. That's fine and dandy except how many men
    > died in Vietnam the week they argued over the shape of the table?
    > . . . *Do we dare express our feelings and opinions with the
    > threat of court-martial perpetually hanging over our heads? Are
    > your opinions worth risking a court-martial?* We must strive for
    > peace and if not peace than a complete U.S. withdrawal. We've been
    > sitting ducks for too long. . . .

    *Id.* at 679 (Douglas, J., dissenting) (emphasis added).

[^103]: *Id.* at 680 (Douglas, J., dissenting).

[^104]: *Id.* (Douglas, J., dissenting).

[^105]: *Id.* (Douglas, J., dissenting).

[^106]: *Id.* (Douglas, J., dissenting).

[^107]: Although the Article was enacted after Parker and Priest, the
    explanation accompanying Article 134---Disloyal Statements currently
    provides:

    > Examples include praising the enemy, attacking the war aims of the
    > United States, or denouncing our form of government with intent to
    > promote disloyalty or disaffection among members of the armed
    > services. A declaration of personal belief can amount to a
    > disloyal statement if it disavows allegiance owed to the United
    > States by the declarant. The disloyalty involved for this offense
    > must be to the United States as a political entity and not merely
    > to a department or other agency that is part of its
    > administration.

    MCM, *supra* note 3, Part IV, ¶ 72(c).

[^108]: United States v. Priest, 45 C.M.R. 338 (C.M.A. 1972). *See also*
    United States v. Harvey, 42 C.M.R. 141 (C.M.A. 1970); United States
    v. Gray, 42 C.M.R. 255 (C.M.A. 1970); United States v. Amick, 40
    C.M.R. 720 (A.B.R. 1969).

[^109]: Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).

[^110]: Priest, 45 C.M.R. at 344.

[^111]: *Id.* at 344 (quoting 249 U.S. 47, 52 (1919)).

[^112]: *Id.* at 344-45.

[^113]: *Id.* at 345.

[^114]: *Id.*

[^115]: *Id.* at 342.

[^116]: *Id.* at 345-46.

[^117]: *Id.* at 345.

[^118]: Article 134---Indecent language provides: "Indecent language is
    that which is grossly offensive to modesty, decency, or propriety,
    or shocks the moral senses, because of its vulgar, filthy, or
    disgusting nature, or its tendency to incite lustful thought.
    Language is indecent if it tends reasonably to corrupt morals or
    incite libidinous thoughts." MCM, *supra* note 3, Part IV, ¶ 89.

[^119]: United States v. Moore, 38 M.J. 490, 492 (C.M.A. 1994) (citing
    United States v. French, 31 M.J. 57, 59 (C.M.A. 1990)).

[^120]: United States v. Hullett, 40 M.J. 189, 191 (C.M.A. 1994)
    (quoting United States v. Linyear, 3 M.J. 1027, 1030 (N.C.M.R.
    1977), *petition denied*, 5 M.J. 269 (C.M.A. 1978)).

[^121]: Hullett, 40 M.J. at 191 (quoting Linyear, 3 M.J. at 1030).

[^122]: *See. e.g.,* United States v. Pullen, 41 M.J. 886, 887
    (A.F.C.C.A. 1995) (finding that 18 U.S.C. § 2252(a)(4)(A) has
    scienter requirement and therefore rejecting First Amendment
    challenge to conviction on one specific specification of knowing
    possession of 3 or more items depicting minors engaged in sexually
    explicit conduct, in violation of statute, imported into Article 134
    through its \"crimes and offenses not capital\" clause), *petition
    denied*, 43 M.J. 166 (C.A.A.F. 1995); United States v. Olinger, 41
    M.J. 615 (N.M.C.M.R. 1994).

[^123]: *See, e.g.,* United States v. Caver, 41 M.J. 556, 561
    (N.M.C.C.A. 1994) ("\[C\]onsidering the factors set forth in the
    record, including the context of the utterance, the intent and
    effect of the communication, and applying community standards,"
    accused use of the term "bitch" was indecent), *petition denied*, 43
    M.J. 151 (C.A.A.F. 1995).

[^124]: *See, e.g.,* United States v. Gill, 40 M.J. 835, 837 (A.F.C.M.R.
    1994) (rejecting accused's assertions that conviction violated his
    First Amendment right to freedom of speech because the writings were
    private communications between consenting adults and holding that it
    was sufficient that the language was indecent on its face and was
    prejudicial to good order and discipline, as clearly established by
    the testimony of the two victims), *petition denied*, 42 M.J. 100
    (C.A.A.F. 1995); United States v. Durham, 1990 WL 199847 \*1
    (A.F.C.M.R. 1990) (per curiam) (rejecting summarily appellant's
    argument that his indecent language specifications violate his First
    Amendment right to free speech), *petition denied*, 32 M.J. 470
    (C.M.A. 1991).

[^125]: 458 U.S. 747 (1982) (upholding state prohibition on distribution
    of child pornography based on government interest in preventing the
    sexual exploitation of children).

[^126]: United States v. Orben, 28 M.J. 172, 175 (C.M.A. 1989) (holding
    that under the circumstances, display of non-pornographic or obscene
    pictures to minor constituted taking indecent liberties when
    accompanied by behavior and language demonstrating intent to arouse
    his own sexual passions, those of the child, or both), *cert.
    denied*, 493 U.S. 854 (1989).

[^127]: United States v. Hadlick, CM 8900080 (A.C.M.R. 30 Nov. 1989)
    (unpublished opinion), *aff'd*, 33 M.J. 163 (C.M.A. 1991).

[^128]: Texas v. Johnson, 491 U.S. 397 (1989) (striking Texas statute
    making it a crime to desecrate the American flag).

[^129]: Hadlick, slip op. at 3.

[^130]: Hadlick, slip op. at 4.

[^131]: *See generally* Jonathan F. Potter, *Flag Burning: An Offense
    Under the Uniform Code of Military Justice?*, [November
    1990]{.smallcaps} [Army Law.]{.smallcaps} 21 (1990); Gregory A.
    Gross, Note, *Flag Desecration in the Army*, [April 1990 Army
    Law.]{.smallcaps} 25 (1990).

[^132]: Potter, *supra* note 131, at 26.

[^133]: *Id.*

[^134]: *Id.*

[^135]: United States v. Stone, 37 M.J. 558 (A.C.M.R. 1993) *aff'd*, 40
    M.J. 420 (C.M.A. 1994).

[^136]: *Id.* at 561. Stone also told the students that as the leader of
    the four-man Green Beret team, he wore a computerized "glove" worth
    \$1.2 million that tied into "Star Wars" satellites, would warn him
    of approaching enemy forces and direct him to helicopter landing
    zones. *Id.* at 561 n.3. The local newspaper covered the assembly.
    The newspaper publisher, the brother of then Vice-President Dan
    Quayle, proudly forwarded a copy of the story to the Vice
    President's office, which then forwarded it to the Pentagon. *Id.*
    at 562.

[^137]: *Id.*

[^138]: *Id.* at 562.

[^139]: *Id.*

[^140]: *Id.* at 564.

[^141]: *Id.* at 565. The government presented evidence at trial that,
    once the falsity of the presentation was exposed, the audience had
    diminished confidence in the integrity of military personnel.
    Evidence was also produced indicating that special operations
    personnel believed that the story, although completely false, might
    endanger members during the ground war. Finally, a public affairs
    officer for the Special Forces issued an apology to the high school
    principal and suggested methods to dispel the anxiety caused
    resulting from the terrorism remarks. *Id.* at 562.

[^142]: United States v. Stone, 40 M.J. 420, 424-25 (C.M.A. 1994).

[^143]: Stone, 37 M.J. at 564.

[^144]: Although he did not witness the events in Vietnam on March 16,
    1968, Ronald Ridenhour heard first-hand accounts from fellow
    soldiers. After his discharge and return to the states, he initiated
    the investigation into what would become known as the "My Lai
    Massacre" with a letter to the Department of the Army, the
    Department of Defense, and numerous government officials and members
    of Congress. He ended the letter with the following statement

    > I have considered sending this to newspapers, magazines, and
    > broadcasting companies, but I somehow feel that investigation and
    > action by the Congress of the United States is the appropriate
    > procedure, and as a conscientious citizen I have no desire to
    > further besmirch the image of the American serviceman in the eyes
    > of the world. I feel this action, while probably it would promote
    > attention, would not bring about the constructive actions that the
    > direct actions of the Congress of the United States would.

    [Richard Hammer, The Court-martial of Lt. Calley]{.smallcaps} 23-28
    (1971).

[^145]: *See infra* notes 325-26 and accompanying text.

[^146]: United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996).

[^147]: *Id.* at 392-393.

[^148]: Chief Judge Cox concurred in the result, but did not "view this
    as a First Amendment case." *Id*. at 399. Although he found it
    "highly unusual" that the government relied on a federal statute
    outside of the UCMJ, he still concluded that "it is quite clear that
    the appellant's conduct was prejudicial to good order and discipline
    in the military and punishable as such." *Id.* at 399-400. Judge
    Gierke concurred in part and in the judgment, affirming the
    conviction on the basis of Clause 1 of Article 134 instead of Clause
    3. Judge Sullivan dissented, finding that the underlying conduct did
    not constitute "union" activity under the federal statute. *Id*. at
    401-02.

[^149]: *Id.* at 394.

[^150]: *Id.* at 396.

[^151]: *Id.* at 398.

[^152]: Article 133, UCMJ, MCM, *supra* note 3, Part IV, ¶ 59(a). For an
    excellent discussion of the historical development and rationale
    supporting Article 133 and 134, UCMJ, see Maj. Keithe E. Nelson,
    *Conduct Expected of an Officer and a Gentleman: Ambiguity*, 12
    [A.F. L. Rev.]{.smallcaps} 124 (1970). Maj. Nelson explains that
    "the elimination of the mandatory dismissal punishment and the
    resultant change of wording in the Manual for Courts-Martial have
    operated to increase the vagueness surrounding \[Article 133\]."
    *Id.* at 138-39.

[^153]: Parker v. Levy, 417 U.S. 733, 753-54 (1974).

[^154]: *Id.* at 754 (quoting United States v. Howe, 37 C.M.R. 429,
    441-442 (1967) (quoting [William Winthrop, Military Law and
    Precedents]{.smallcaps} 711-12 (2d. ed. 1920)).

[^155]: *Id.* (quoting *Id.*).

[^156]: MCM, *supra* note 3, Part IV, ¶ 59(c)(2).

[^157]: *Id.*

[^158]: *See, e.g.,* Holmes v. California Army National Guard, 124 F.3d
    1126, 1136-37 (9th Cir. 1997).

[^159]: For a list of articles that address the constitutionality of the
    "Don't Ask, Don't Tell" policy, see note 9.

[^160]: United States v. Bilby, 39 M.J. 467 (C.M.A. 1994), *cert.
    denied*, 513 U.S. 1077 (1995).

[^161]: 18 U.S.C. § 2252.

[^162]: Bilby, 39 M.J. 470.

[^163]: *See, e.g.,* Sable Communications v. F.C.C., 492 U.S. 115 (1989)
    (striking unanimously a statute that prohibited indecent interstate
    "dial-a-porn" telephone calls while upholding ban on obscene
    services).

[^164]: The now familiar three-part test for obscenity was outlined by
    the Court in Miller v. California, 413 U.S. 15 (1973), *reh'g
    denied*, 414 U.S. 881 (1973).

[^165]: In Sable, 492 U.S. at 126, the Court noted that "there is a
    compelling interest in protecting the physical and psychological
    well-being of minors. This interest extends to shielding minors from
    the influence of literature that is not obscene by adult standards."
    The Court concluded, however, that the statute was not narrowly
    tailored to serve that interest. *Id.* at 126. *See also* New York
    v. Ferber, 458 U.S. 747 (1982) (upholding state prohibition on
    distribution of child pornography based on government interest in
    preventing the sexual exploitation of children).

[^166]: United States v. Hartwig, 39 M.J. 125 (C.M.A. 1994).

[^167]: *Id.* at 126-27.

[^168]: *Id.* at 127.

[^169]: *Id.* at 128 (quoting MCM, *supra* note 3, Part IV, ¶ 59(c)(2)).
    *See also* United States v. Modesto, 39 M.J. 1055, 1061 (A.C.M.R.
    1994) ("Assuming without deciding that cross-dressing in a public
    place has First Amendment implications, we have no doubt that the
    conduct presented a 'clear and present' danger' that the conduct,
    'in dishonoring or disgracing the officer personally, \[would\]
    seriously compromise\[ \] the person's standing as an officer."
    (quoting MCM, *supra* note 3, Part IV, ¶ 59(c)(2))), *aff'd*, 43
    M.J. 315 (C.A.A.F. 1995).

[^170]: *Id.* at 128.

[^171]: *Id.* at 128-29 (quoting Smith v. Whitney, 116 U.S. 167, 185
    (1886)).

[^172]: United States v. Moore, 38 M.J. 490 (C.M.A. 1994).

[^173]: *Id.* at 492 (quoting Army Court of Military Review's unpub. op.
    at 3-4).

[^174]: *Id.* at 493 (internal quotation marks omitted).

[^175]: *Id.* (quoting United States v. Frazier, 34 M.J. 194 (C.M.A.
    1992)).

[^176]: Article 92, UCMJ, MCM, *supra* note 3, Part IV, ¶ 16(a).

[^177]: United States v. Wilson, 33 M.J. 797 (A.C.M.R. 1991).

[^178]: *Id.* at 798.

[^179]: *Id.*

[^180]: *Id*. at 798 n.1.

[^181]: *Id.* at 798. The military judge also found that if the accused
    in this case were a civilian and purchased his own flag, the conduct
    would be protected under Texas v. Johnson, 491 U.S. 397 (1989).
    Additionally, if the soldier was off duty and out of uniform and
    procured his own flag, "arguably then that expression of a position
    might be protected, that issue has yet to be decided.\" *Id.*

[^182]: *Id.* at 799 (internal quotation marks omitted) (quoting Goldman
    v. Weinberger, 475 U.S. 503, 507 (1986) (citing Orloff v.
    Willoughby, 345 U.S. 83, 92 (1953))).

[^183]: *Id.* at 799-800 (citing 391 U.S. 367 (1968), *reh'g denied* 393
    U.S. 900 (1968)).

[^184]: *Id.* at 800.

[^185]: *Id.*

[^186]: *Id.*

[^187]: *Id.*

[^188]: *Id.*

[^189]: United States v. Daniel, 42 M.J. 802, 804-06 (N.M.C.C.A. 1995)
    (Secretary of the Navy Instruction 5300.26A, Department of the Navy
    Policy on Sexual Harassment (Aug. 2, 1989) was not a punitive
    regulation but merely a policy statement and, therefore, could not
    serve as basis for Article 92, UCMJ offense), *petition denied*, 43
    M.J. 429 (C.A.A.F. 1995). For examinations of sexual harassment
    prosecutions in the military, see Lieutenant Commander J. Richard
    Chema, *Arresting \"Tailhook\": The Prosecution of Sexual Harassment
    in the Military*, 140 [Mil. L. Rev.]{.smallcaps} 1 (1993); Mary C.
    Griffin, Note, *Making the Army Safe for Diversity: A Title VII
    Remedy for Discrimination in the Military*, 96 [Yale
    L.J.]{.smallcaps} 2082 (1987).

[^190]: Interpreting Title VII, the Supreme Court has held that if the
    work environment could reasonably be perceived to be hostile or
    abusive no showing of psychological injury was necessary. Harris v.
    Forklift Systems, Inc., 510 U.S. 17 (1993). Although free speech
    issues were briefed by both parties, the Court's opinion did not
    even reference the First Amendment. *See* Richard H. Fallon, Jr.,
    *Sexual Harassment, Content-Neutrality, and the First Amendment Dog
    that Didn't Bark*, 1994 [Sup. Ct. Rev.]{.smallcaps} 1 (1994).

[^191]: United States v. McDavid, 37 M.J. 861 (A.F.C.M.R. 1993),
    *petition denied*, 39 M.J. 405 (C.M.A. 1994).

[^192]: *Id.* at 862.

[^193]: *Id.* at 863.

[^194]: *Id.* at 863-64.

[^195]: MCM, *supra* note 3, Part IV, ¶ 12(a).

[^196]: *Id.* ¶ 12(c).

[^197]: *Id.*

[^198]: *Id.*

[^199]: *Id.*

[^200]: Perry Educ. Assoc. v. Perry Local Educators' Assoc., 460 U.S.
    37, 46 (1983).

[^201]: Watts v. United States, 394 U.S. 705, 706 (1969) (per curiam).

[^202]: *Id*. at 705-06, (citing 18 U.S.C. § 871(a)).

[^203]: *Id.* at 707.

[^204]: *Id.* at 708 (quoting New York Times v. Sullivan, 376 U.S. 254,
    270 (1964)).

[^205]: *Id.* (internal quotation marks omitted).

[^206]: United States v. Howe, 37 C.M.R. 429 (C.M.A. 1967).

[^207]: *Id.* at 433.

[^208]: *Id.* at 432.

[^209]: *Id.* at 432-33.

[^210]: *Id.* at 431.

[^211]: *Id.* at 434.

[^212]: *Id.* at 438.

[^213]: *Id.* at 437.

[^214]: *Id.* at 437-38.

[^215]: *Id.* at 438.

[^216]: *See generally* Levin, *supra* note 49.

[^217]: Howe, 37 C.M.R. at 439 (quoting Warren, *supra* note 4).

[^218]: *See generally* Richard W. Aldrich, Comment, *Article 88 of the
    Uniform Code of Military Justice: A Military Muzzle or Just a
    Restraint on Military Muscle?*, 33 [UCLA L. Rev.]{.smallcaps} 1189
    (1986); John G. Kester, *Soldiers Who Insult the President: An
    Uneasy Look at Article 88 of the Uniform Code of Military Justice*,
    81 [Harv. L. Rev.]{.smallcaps} 1697 (1968).

[^219]: Aldrich, *supra* note 218, at 1195.

[^220]: *Id.* at 1206.

[^221]: Eric Schmitt, *General to Be Disciplined for Disparaging
    President*, [N.Y. Times]{.smallcaps}, June 16, 1993, at A20,
    *available in* LEXIS, Nexis Library, ARCNWS File.

[^222]: *Pentagon Fines, Reprimands And Retires General Who Ridiculed
    Clinton*, UPI, June 18, 1993, *available in* LEXIS, Nexis Library,
    ARCNWS File.

[^223]: Gen. Merrill McPeak, Defense Department Briefing, June 18, 1993,
    *available in* LEXIS, Nexis Library, ARCNWS File.

[^224]: *See* Bruce Smith, *Memo to the Navy: Ask the JAG*, 42-Dec.
    [Fed. Law.]{.smallcaps} 18 (1995) (emphasizing that the Naval
    Institute's *Proceedings* essay critical of DOD policies on
    personnel and social issues that provoked outrage in Washington D.C.
    illustrates that "even political commentary that enjoys widespread
    support among the ranks can still constitute a violation of the law
    or good judgment.").

[^225]: Charles Aldinger, *General Ridiculed Clinton, Official Says*,
    Reuters North American Wire, June 15, 1993, *available in* LEXIS,
    Nexis Library, ARCNWS File.

[^226]: The two regulations implementing the "Don't Ask, Don't Tell"
    policy have evoked the most controversy in recent years. *See supra*
    note 9.

[^227]: *See*, *e.g.*, United States v. Daniel, 42 M.J. 802 (N.M.C.C.A.
    1995) (finding that Naval instruction governing sexual harassment
    was not punitive and could not serve as basis for charge of
    violating lawful general order or regulation under Article 92,
    UCMJ), *review denied*, 43 M.J. 429 (C.A.A.F. 1995).

[^228]: AFI 33-129, Transmission of Information via the Internet, ¶
    6.1.3 (Jan. 1, 1997) (prohibiting, *inter alia*, the storage or
    transmission of obscene or offensive language or material on
    government computer system). *See supra* notes 118-21 and
    accompanying text for a discussion of the UCMJ's definition of
    indecency.

[^229]: AFI 36-2909, Professional and Unprofessional Relationships, ¶ 5
    (May 1, 1996).

[^230]: DOD Directive 1344.10, Political Activities by Members of the
    Armed Forces on Active Duty (June 15, 1990).

[^231]: AFI 51-902, Political Activities by Members of the US Air Force
    (Jan. 1, 1996) (punitive regulation in its entirety); *See also*
    Major General Bryan G. Hawley, TJAG Policy Number 10, Political
    Activities by Air Force Military Personnel (1998 Revision).

[^232]: AFI 51-902, *supra* note 231, ¶ 3.1.

[^233]: *See id.* ¶ 4. For a discussion of service regulations
    prohibiting military personnel from appearing at certain functions
    in uniform, see United States v. Locks, 40 C.M.R. 1022, 1023
    (A.F.B.R. 1969) ("The Air Force designs and furnishes the uniform
    according to its own criteria; the First Amendment does not forbid
    the Air Force from determining the uniform's use according to its
    own criteria."), *petition denied*, 40 C.M.R. 327 (C.M.A. 1969);
    United States v. Toomey, 39 C.M.R. 969, 973 (A.F.B.R. 1968)
    (rejecting free speech challenge to Article 92 charge for violating
    Air Force uniform regulation and finding that "there can be no doubt
    that the wearing of the uniform while participating in a
    demonstration protesting the Selective Service Act and its
    implementation . . . is highly injurious to the reputation of the
    military service.).

[^234]: *Id.* ¶ 4.8.

[^235]: DOD Directive 1325.6, Guideline for Handling Dissident and
    Protest Activities Among Members of the Armed Forces (Oct. 1, 1996).

[^236]: AFI 51-903, Dissident and Protest Activities (Feb. 1, 1998)
    (superceding AFI 51-903 (Mar. 4, 1994) (originally covered by Air
    Force Regulation 35-15 (Dec. 7, 1987))). Paragraphs 2, 5, 5.1, 7,
    7.2 are punitive.

[^237]: *Id. at* ¶ 1.1.

[^238]: *Id. at* ¶ 1.

[^239]: *Id. at* ¶ 2.

[^240]: Brown v. Glines, 444 U.S. 348 (1980). The Court also held that
    the regulations did not violate 10 U.S.C. § 1034, which it
    interpreted as protecting the ability of an individual military
    member to contact members of Congress. *Id.* at 358.

[^241]: The Supreme Court upheld similar Navy and Marine Corps
    regulations on overseas solicitation in Secretary of the Navy v.
    Huff, 444 U.S. 453 (1980). *See also* Brown v. Allen, 444 U.S. 1063
    (1980), *vacating* 583 F.2d 438 (9th Cir. 1978).

[^242]: Air Force Reg. 35-1(9) (1971) provided: "Right to petition.
    Members of the Air Force, their dependents and civilian employees
    have the right, in common with all other citizens, to petition the
    President, the Congress or other public officials. However, the
    public solicitation or collection of signatures on a petition by any
    person within an Air Force facility or by a member when in uniform
    or when in a foreign country is prohibited unless first authorized
    by the commander." Brown, 444 U.S. at 349-50 n.1.

[^243]: Air Force Reg. 35-15(3)(a) (1970) provided: "(1) No member of
    the Air Force will distribute or post any printed or written
    material other than publications of an official governmental agency
    or base regulated activity within any Air Force installation without
    permission of the commander or his designee . . . ;(2) When prior
    approval for distribution or posting is required, the commander will
    determine if a clear danger to the loyalty, discipline, or morale of
    members of the Armed Forces, or material interference with the
    accomplishment of a military mission, would result. If such a
    determination is made, distribution or posting will be prohibited
    and HQ USAF (SAFOI) will be notified of the circumstances. (3) . . .
    ; (4) Distribution or posting may not be prohibited solely on the
    ground that the material is critical of Government policies or
    officials. (5) In general, installation commanders should encourage
    and promote the availability to service personnel of books,
    periodicals, and other media which present a wide range of
    viewpoints on public issues." *Id.* at 350-51 n.2.

[^244]: *See supra* notes 177-88 and accompanying text.

[^245]: The petition to the Secretary of Defense read:

    > Dear Secretary of Defense:
    >
    > We, the undersigned, all American citizens serving in the Armed
    > Services of our nation, request your assistance in changing the
    > grooming standards of the United States Air Force.
    >
    > We feel that the present regulations on grooming have caused more
    > racial tension, decrease in morale and retention, and loss of
    > respect for authorities than any other official Air Force policy.
    >
    > We are similarly petitioning Senator Cranston, Senator Tunney,
    > Senator Jackson, and Congressman Moss in the hope of our elected
    > or appointed officials will help correct this problem.

    *See Glines,* 444 U.S. at 351 n.3 (quoting Glines v. Wade, 586 F.2d
    675, 677 n.1 (9th Cir. 1978).

[^246]: *Id.* at 351.

[^247]: *Id.* at 354.

[^248]: *Id.* at 353 (quoting Greer v. Spock, 424 U.S. 828, 840 (1976)).

[^249]: *Id.* at 354 (quoting Schlesinger v. Councilman, 420 U.S. 738,
    757 (1975)).

[^250]: *Id.* at 356 n.14 (citations omitted).

[^251]: *Id.*

[^252]: *Id.* at 355.

[^253]: *Id.* at 355.

[^254]: *Id.* at 356.

[^255]: *Id.* at 357 n.15 (internal quotations omitted).

[^256]: Ethredge v. Hail, 56 F.3d 1324 (11th Cir. 1995).

[^257]: *Id.* at 1325.

[^258]: *Id.* at 1325-26.

[^259]: *Id.* at 1327 (quoting Perry Educ. Assoc. v. Perry Local
    Educators' Assoc., 460 U.S. 37, 46, (1983)).

[^260]: *Id.* at 1327 n.2.

[^261]: *Id.* at 1327.

[^262]: *Id.* at 1328 (citing Greer v. Spock, 424 U.S. 828, 840 (1976)).

[^263]: *Id.*

[^264]: *Id.*

[^265]: *Id.* (citing Goldman v. Weinberger, 475 U.S. 503, 507-08
    (1986)).

[^266]: It could be argued that the sign did not have to reference the
    President, but instead had to only address a topic that embarrassed
    or disparaged him. Under this reasoning, the content or subject of
    the sign would be irrelevant and the restriction would be aimed at
    the effect of the sign on the President. While this interpretation
    raises vagueness problems, it also highlights a potential weakness
    in the wording of the order. While a third party might be able to
    judge whether a sign disparaged the President, it is less clear that
    a third party could determine whether the sign embarrassed him. Even
    when confronted with Gen. Campbell's remarks, see *supra* notes
    221-25, President Clinton reportedly responded "For me, personally,
    I didn't care. . . . People say whatever they want about me
    personally." Schmitt, *supra* note 221. "He doesn't know me from
    Adam so, you know, he's just repeating something he's heard."
    Aldinger, *supra* note 225. It might be suggested, therefore, that
    an order of this nature use a standard that is easily interpreted
    and applied by third parties, perhaps even the "contemptuous words"
    prohibition contained in Article 88, UCMJ.

[^267]: *See,* e.g., Forsyth County, Georgia v. Nationalist Movement,
    505 U.S. 123, 134-35 (1992) ("Speech cannot be financially burdened,
    anymore than it can be punished or banned, simply because it might
    offend a hostile mob.") (citing Gooding v. Wilson, 405 U.S. 518
    (1972); Terminiello v. Chicago, 337 U.S. 1 (1949)).

[^268]: Zillman and Imwinkelried II, *supra* note 4, at 405.

[^269]: Solorio v. United States, 483 U.S. 435, 439 (1987).

[^270]: Nunn, *supra* note 18, at 28.

[^271]: Vagts, *supra* note 5, at 189.

[^272]: Nunn, *supra* note 18, at 31.

[^273]: Brown v. Glines, 444 U.S. 348, 356-57 n.14 (1980). *See supra*
    note 240-55 and accompanying text.

[^274]: *Id.*

[^275]: Vagts, *supra* note 5, at 189.

[^276]: Zillman, *supra* note 6, at 434 (footnote omitted).

[^277]: New York Times v. Sullivan, 376 U.S. 254, 270 (1964).

[^278]: *See. e.g.,* Hess v. Indiana, 414 U.S. 105, 107-08 (1973) (per
    curiam) (concluding that demonstrator's comment to law enforcement
    officer police that "We'll take the f\*\*\*king street later \[or
    again\]" amounted, at worst, only to advocacy of illegal action at
    some indefinite future time).

[^279]: United States v. Priest, 45 C.M.R. 338 (C.M.A. 1972).

[^280]: Zillman and Imwinkelried II, *supra* note 4, at 405; Zillman,
    *supra* note 6, at 442 ("Courts have shown little concern with the
    civilian principle that the troublemakers and not the peaceful
    speakers should be controlled.").

[^281]: Many who critique the "Don't Ask/Don't Tell" policy challenge
    the reasonableness of the crowd being angry in the first place. *See
    supra* note 9.

[^282]: Nunn, *supra* note 18, at 29 (quoting [S. Rep. No.]{.smallcaps}
    112, 103d Cong., 1st Sess. 274-75 (testimony of General General H.
    Norman Schwarzkopf, United States Army (Ret.), before the Senate
    Armed Services Committee, May 11, 1993)).

[^283]: *Id.* (quoting testimony of General Colin L. Powell, United
    States Army, Chairman of the Joint Chiefs of Staff, before the
    Senate Armed Services Committee, July 20, 1993).

[^284]: *See supra* notes 256-65 and accompanying text.

[^285]: Zillman and Imwinkelried II, *supra* note 4, at 403.

[^286]: Dienes, *supra* note 19, at 825.

[^287]: *Id.* at 824.

[^288]: Zillman and Imwinkelried II, *supra* note 4, at 436.

[^289]: *Id.*

[^290]: Dienes, *supra* note 19, at 825. Compare Justice Marshall's
    concern that "the Court has taken its second step in a single day
    toward establishing a doctrine under which any military regulation
    can evade searching constitutional scrutiny simply because of the
    military's belief---however unsupportable it may be---that the
    regulation is appropriate." Greer v. Spock, 424 U.S. 828, 872-73
    (1976) (Marshall, J., dissenting) (referring to Middendorf v. Henry,
    425 U.S. 25 (1976) (right to counsel inapplicable to summary
    court-martial proceedings)).

[^291]: Vagts, *supra* note 5, at 190.

[^292]: Zillman, *supra* note 6, at 435-39.

[^293]: *See infra* note 321-23 and accompanying text. *Cf.* Banks v.
    Ball, 705 F.Supp. 282 (E.D. Virginia, 1989) (concluding that Naval
    Reservist's interests in communicating on matter of public concern
    with Congress on official stationery without authorization in
    violation of Article 1149 of Navy Regulations was outweighed by
    military's national security interest in uniformity, esprit de corps
    and efficiency under the *Pickering* test, and that Article 1149 was
    a proper time, place, and manner regulation) *aff'd sub nom.* Banks
    v. Garrett, 901 F.2d 1084 (Fed. Cir. 1990), *cert. denied*, 498 U.S.
    821 (1990), *reh'g denied*, 498 U.S. 993 (1990).

[^294]: William Matthews, *Whistle-blower faces discipline, Air Force
    officer alleges retaliation*, [Air Force Times]{.smallcaps}, Sep.
    22, 1997, at 10.

[^295]: Zillman, *supra* note 6, at 443-44; Zillman and Imwinkelried II,
    *supra* note 4, at 405-06; Vagts, *supra* note 5, at 188.

[^296]: Justice Brennan has argued that the fear of military involvement
    in political activities is acerbated by the isolation of the
    military from the diverse dialogue of the civilian community. As he
    explained:

    > \[W\]here the interests and purpose of an organization are
    > peculiarly affected by national affairs, it becomes highly
    > susceptible to politicization. For this reason, it is precisely
    > the nature of the military organization to tend toward that end.
    > That tendency is only facilitated by action that serves to isolate
    > the organization's members from the opportunity for exposure to
    > the moderating influence of other ideas, particularly where, as
    > with the military, the organization's activities pervade the lives
    > of its members. For this reason, any unnecessary isolation only
    > erodes neutrality and invites the danger that neutrality seeks to
    > avoid.

    Greer v. Spock, 424 U.S. 828, 868-69 (1976) (Brennan, J.,
    dissenting) (footnote omitted).

[^297]: Vagts, *supra* note 5, at 188.

[^298]: *Id.* at 189.

[^299]: Zillman, *supra* note 6, at 436.

[^300]: *Id.* at 446.

[^301]: *Id.* at 445.

[^302]: Zillman, *supra* note 6, at 433.

[^303]: *Id.*

[^304]: Dienes, *supra* note 19, at 816-17.

[^305]: United States v. Priest, 45 C.M.R. 338, 345 (C.M.A. 1972). *See
    supra* notes 108-17 and accompanying text. *See also* Persons For
    Free Speech at SAC v. United States Air Force, 675 F.2d 1010, 1017
    (8th Cir. 1982) ("Civilians, our President and Congress make the
    'ideological' decisions for the military. Where the military stands
    today may be an ideological controversy and even more so where the
    military will be tomorrow. But the debate on such controversies is
    for civilian forums not military bases.") (finding that government
    did not intend to create public forum during open house at Offutt
    Air Force Base), *cert. denied*, 459 U.S. 1092 (1982).

[^306]: Dienes, *supra* note 19, at 817.

[^307]: Zillman, *supra* note 6, at 433.

[^308]: Vagts, *supra* note 5, at 191.

[^309]: *Id.* at 190.

[^310]: Dienes, *supra* note 19, at 818.

[^311]: *See supra* notes 101-06 and accompanying text.

[^312]: Vagts, *supra* note 5, at 190. As the Army Court of Criminal
    Appeals has stated:

    > That military personnel complain is not a classified matter.
    > Complaining is indulged in by enlisted men and officers of all
    > grades and ranks. Complaints can be registered on any topic and
    > frequently are. 'Bitching,' to use the vernacular, may be
    > expressed in gutter talk or in well articulated phrases and has
    > been developed into a fine art. Nevertheless it sometimes serves a
    > useful purpose. It provides an outlet for pent-up emotions,
    > therapy for frustrations and a palliative for rebuffs and
    > rejections. A noticeable failure to complain in a military
    > organization is considered by some commanders as an indication of
    > approaching morale problems.

    United States v. Wolfson, 36 C.M.R. 722, 728 (A.B.R. 1966).

[^313]: Zillman, *supra* note 6, at 433.

[^314]: *See supra* notes 65-95 and 96-100 and accompanying text.

[^315]: Dienes, *supra* note 19, at 817. *See also* Cortright v. Resor,
    447 F.2d 245, 256 (2nd Cir. 1971) (Oakes, C.J., dissenting) ("\[A\]
    Specialist Cortright and a General Gavin must equally be permitted
    to persuade the public, the Congress or the Executive that, for
    example, a given course of military-diplomatic action or foreign
    policy is wrong.")

[^316]: Zillman, *supra* note 6, at 432.

[^317]: Vagts, *supra* note 5, at 191.

[^318]: Dienes, *supra* note 19, at 817.

[^319]: *Id.* at 819.

[^320]: Zillman, *supra* note 6, at 432.

[^321]: Nunn, *supra* note 18, at 32 n.30 (citing 10 U.S.C. § 938
    (1988)). *See also* Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953)
    ("The responsibility for setting up channels through which such
    grievances can be considered and fairly settled rests upon the
    Congress and upon the President of the United States and his
    subordinates.").

[^322]: *Id.* (citing 10 U.S.C.A. § 1034 (West 1994)).

[^323]: *Id.* (citing 10 U.S.C. § 1552 (1988)).

[^324]: Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S.
    788, 800 (1985). *See generally* Major Andy K. Hughes, *The
    Regulation of Printed Materials on Military Installations*, 1992-OCT
    [Army Law.]{.smallcaps} 16 (1992); John C. Cruden and Calvin M.
    Lederer, *The First Amendment and Military Installations*, 1984
    [Det. C.L. Rev.]{.smallcaps} 845 (1984).

[^325]: Perry Educ. Ass'n. v. Perry Local Educators' Ass'n., 460 U.S.
    37, 45 (1983).

[^326]: *Id.* at 45.

[^327]: Flower v. United States, 407 U.S. 197 (1972) (per curiam). The
    Court summarily reversed the defendant's conviction without the
    benefit of briefs or oral arguments. *Id.* at 199 (Rehnquist, J.,
    dissenting).

[^328]: United States v. Albertini, 472 U.S. 675, 685-86 (1985).

[^329]: Greer v. Spock, 473 U.S. 788, 802 (1985).

[^330]: *See* Rosenberger v. Rector and Visitors of Univ. of Va., 515
    U.S. 819, 829-30 (1995).

[^331]: Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S.
    788, 803 (1985) (internal citations omitted).

[^332]: Rigdon v. Perry, 962 F.Supp 150, 163 (D.D.C. 1997).

[^333]: *See* International Society for Krishna Consciousness, Inc. v.
    Lee, 505 U.S. 672, 678-79 (1992).

[^334]: General Media Communications, Inc. v. Cohen, 131 F.3d 273, 279
    (2nd Cir. 1997) (quoting Lee, 505 U.S. at 679).

[^335]: Greer v. Spock, 424 U.S. 828 (1976).

[^336]: *Id.* at 833 n.3.

[^337]: *Id.* at 837. In at least two other military contexts, courts
    have rejected arguments that the government created a designated
    public forum. In Cornelius v. NAACP Legal Defense and Educ. Fund,
    Inc., 473 U.S. 788 (1985), the Supreme Court held that the Combined
    Federal Campaign was a nonpublic forum because the government did
    not intend to create a forum for expressive conduct. Furthermore,
    the Court concluded that restriction on the type of organizations
    that could participate in the campaign were reasonable and viewpoint
    neutral. *Id.* at 789-811. In General Media Communications, Inc. v.
    Cohen, 131 F.3d 273 (2nd Cir. 1997), the Second Circuit found that
    military exchanges were nonpublic forums because they were primarily
    created for commercial purposes, were not open to the public, and
    were authorized to stock only certain products. *Id.* at 280. The
    court determined that Congress could ban the sale of certain adult
    magazines within the exchanges. The ban advanced the legitimate
    government interests in avoiding the appearance of official
    endorsement of the material and protected the "military's image and
    core values." *Id.* at 283-84. For court opinions discussing whether
    military bases were converted into public forums during an "open
    house," see United States v. Albertini, 472 U.S. 675, 686 (1985)
    (dictum) ("Nor did Hickam \[Air Force Base\] become a public forum
    merely because the base was used to communicate ideas or information
    during the open house."); Brown v. Palmer, 944 F.2d 732, 739 (10th
    Cir. 1991) (en banc) (stating government did not intend to create
    public forum during open house at Peterson Air Force Base); Persons
    For Free Speech at SAC v. United States Air Force, 675 F.2d 1010
    (8th Cir. 1982) (stating government did not intend to create public
    forum during open house at Offutt Air Force Base), *cert. denied*,
    459 U.S. 1092 (1982).

[^338]: *See, e.g.,* Boos v. Barry, 485 U.S. 312 (1988). In Boos, the
    Supreme Court examined a District of Columbia provision ([D.C. Code
    Ann.]{.smallcaps} § 22-1115) that prohibited the display of any sign
    bringing a foreign government into disrepute within 500 feet of a
    foreign embassy or building occupied by an embassy official. A
    similar prohibition applied to assemblies. The Court found that the
    display provision was content-based because it applied to an entire
    category of speech, namely "signs or displays critical of foreign
    governments." *Id.* at 319. It was not viewpoint--based because the
    determination of which viewpoint is permitted depends upon the
    policies of foreign governments. *Id.* at 319. Applying strict
    scrutiny, the Court found that although the display provision may
    advance the government's interest in protecting the dignity of
    foreign officials, it was not narrowly tailored to serve that
    interest. *Id.* at 326-29. *See also* Brown v. Palmer, 944 F.2d 732,
    739 (10th Cir. 1991) (en banc) ("\[T\]he appellees were still free
    to advocate their own views of pacifism on the public streets
    immediately leading into Peterson AFB and they had access to the
    many other public forums within the immediate vicinity of Peterson
    AFB to reach the public that visited there during the open
    houses.").

[^339]: *See e.g.,* Bridges v. Davis, 443 F.2d 970 (9th Cir. 1971) (per
    curiam), *reh'g denied*, 445 F.2d 1401 (9th Cir. 1971), *cert.
    denied*, 405 U.S. 919 (1972). In Bridges, three ministers and eight
    servicemen sought an injunction against the commanding officers of
    Naval and Marine bases in Hawaii. The commanders had issued orders
    barring the ministers from base. In August 1969, the ministers had
    invited AWOL military personnel to seek sanctuary in their church
    and twenty-four military fugitives entered the church. *Id.* at 971.
    After military police arrested twelve of the members and returned
    them to the base prison, the ministers were permitted to conduct
    services in the prison. Although warned about the prison rules, one
    of the ministers permitted the prisoners to drink a bottle of wine
    and eat birthday cake. *Id.* at 972. Despite additional warnings,
    another minister conducted services in a short sleeved shirt and
    trousers, quoted songs that contained a four letter word and joined
    the prisoners in smoking cigarettes. After the base commander
    determined that the service had "a disturbing effect on the entire
    military community" and so enraged one prison guard that he said he
    would refuse to perform church duties involving the ministers, an
    order was issued barring the ministers from base. *Id.* at 972-73.
    Applying the standard articulated in Cafeteria & Restaurant Workers,
    etc. v. McElroy, 367 U.S. 886 (1961), the court found that the order
    was not patently arbitrary or discriminatory given the totality of
    the circumstances. *Id.* at 973-74.

[^340]: *See, e.g.,* Widmar v. Vincent, 454 U.S. 263 (1981); Cohen v.
    California, 403 U.S. 15 (1971).

[^341]: *See, e.g.,* Clark v. Community For Creative Non-Violence, 468
    U.S. 288 (1984); Hague v. CIO, 307 U.S. 496 (1937).

[^342]: Schacht v. United States, 398 U.S. 58 (1970).

[^343]: *Id.* at 61 (citing United States v. O'Brien, 391 U.S. 367
    (1968)). The statute at issue was 18 U.S.C. § 702.

[^344]: *Id.* at 62.

[^345]: *Id*. at 63.

[^346]: See *supra* note 10.

[^347]: See *supra* note 11.

[^348]: Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

[^349]: *Id.* at 568.

[^350]: *Id.* at 564.

[^351]: *Id.* at 566.

[^352]: *Id.* at 571.

[^353]: *Id.* at 570.

[^354]: *Id.* at 571.

[^355]: *Id.* at 571-72.

[^356]: *Id.* at 572.

[^357]: *Id.* at 572-73 (footnote omitted).

[^358]: Rankin v. McPherson, 483 U.S. 378 (1987) (5-4 opinion), *reh'g
    denied,* 483 U.S. 1056 (1987).

[^359]: *Id.* at 381.

[^360]: *Id.* at 382.

[^361]: *Id.* at 386.

[^362]: *Id.* at 387 (quoting New York Times v. Sullivan, 376 U.S. 254,
    270 (1964)). The Court also noted that the private nature of the
    conversation does not prevent the statement from addressing a matter
    of public concern. *Id.* at 386 n.11.

[^363]: *Id.* at 388-89.

[^364]: *Id.* at 390-91. In concurrence, Justice Powell explained that
    he thought it was unnecessary to engage in the Pickering analysis.
    In his opinion

    > \[i\]f a statement is on a matter of public concern, as it was
    > here, it will be an unusual case where the employer's legitimate
    > interests will be so great as to justify punishing an employee for
    > this type of private speech that routinely takes place at all
    > levels in the workplace. The risk that a single, off-hand comment
    > directed at only one other worker will lower morale, disrupt the
    > work force, or otherwise undermine the mission of the office
    > borders on fanciful.

    *Id.* at 393 (Powell, J., concurring).

[^365]: *Id.* at 400. Justice Scalia was joined in dissent by Chief
    Justice Rehnquist, Justice White, and Justice O'Connor.

[^366]: *Id.* at 399.

[^367]: *Id.*

[^368]: It has been reported that "Pentagon officials are considering a
    proposal to create a personnel system that would place civilian
    employees under some military rules." The proposal would not,
    however, place civilian under the UCMJ. Lisa Daniel, *Civilian
    workers may face military rules*, [Air Force Times]{.smallcaps},
    Sep. 15, 1997, at 11.

[^369]: Sigman v. Department of the Air Force, 37 M.S.P.B. 352 (1988),
    *aff'd,* 868 F.2d 1278 (Fed. Cir. 1989). For additional cases, see
    *supra* note 11.

[^370]: *Id.* at 354.

[^371]: *Id.* at 355.

[^372]: *Id.* at 356.

[^373]: *Id.*

[^374]: Zillman, *supra* note 6, at 436.

[^375]: Vagts, *supra* note 5, at 210.

[^376]: *Id.*

[^377]: *Id.* at 213.

[^378]: *Id.* ("The deterrent force of custom and tradition may,
    however, be inadequate to deal with the occasional firebrand or
    fanatic, particularly when the person is not seeking a career in the
    service and thus has little to lose.").

[^379]: Zillman and Imwinkelried II, *supra* note 4, at 403.

[^380]: *Id.* at 404.

[^381]: *Id.* at 402.

[^382]: *Id.* The authors identify five justifications: 1) "the primary
    purpose of the military, fighting wars, is hard and dangerous"; 2)
    "the work of the military, defending national interests or even the
    nation itself, is a vital national activity"; 3) "despite the
    rhetoric over the glory of the military, the great bulk of soldiers
    suffering casualties are from the lower social classes, generally
    poorly paid, and often lightly rewarded in prestige"; 4) "the
    military is by nature an emergency force"; and 5) "in many cases the
    objective of battle or war is only dimly perceived or even actively
    opposed by the combat troops." *Id.*

[^383]: *Id.* at 403.

[^384]: *See supra* notes 206-15 and accompanying text.

[^385]: *See supra* notes 135-42 and accompanying text.

[^386]: *See supra* notes 230-31.

[^387]: Linda Sugin, Note, *First Amendment Right of Military Personnel:
    Denying Rights to Those Who Defend Them*, 62 [N.Y.U. L.
    Rev.]{.smallcaps} 855 (1987) (arguing that courts may find free
    speech issues arising in combat situations to be nonjusticiable
    under political question doctrine but that in peace-time situations
    courts should evaluate free speech claims under the *Pickering*
    test).

[^388]: Lee v. United States, 32 Fed.Cl. 530 (Fed.Cl. 1995) (finding
    that Air Force Reserve officer's expression of his inability to
    launch nuclear weapons because of moral reservations was not a
    matter of public concern under the *Pickering* test, and military's
    compelling need to ensure that all members will carry out orders
    outweighs any protection to which speech was entitled); Banks v.
    Ball, 705 F.Supp. 282 (E.D. Virginia, 1989) (concluding that Naval
    Reservist's interests in communicating on matter of public concern
    with Congress on official stationery without authorization in
    violation of Article 1149 of Navy Regulations was outweighed by
    military's national security interest in uniformity, esprit de corps
    and efficiency under the *Pickering* test, and that Article 1149 was
    a proper time, place, and manner regulation) *aff'd sub nom.* Banks
    v. Garrett, 901 F.2d 1084 (Fed. Cir. 1990), *cert. denied*, 498 U.S.
    821 (1990), *reh'g denied*, 498 U.S. 993 (1990).

[^389]: *See supra* notes 118-21 and accompanying text.

[^390]: *See supra* notes 127-30 and 177-88 and accompanying text.

[^391]: *See supra* notes 221-25 and accompanying text.

[^392]: *See supra* notes 250-51 and accompanying text.

[^393]: Orloff v. Willoughby, 345 U.S. 83 (1953). *See supra* note 33.

[^394]: *Id.* at 94.

[^395]: Cortright v. Resor, 447 F.2d 245 (2nd Cir. 1971), *cert.
    denied*, 405 U.S. 965 (1972).

[^396]: *Id*. at 249 (internal quotation marks omitted).

[^397]: *Id.* at 255 (quoting United States ex rel. Schonbrun v.
    Commanding Officer, 403 F.2d 371, 375 (2nd Cir. 1968).

[^398]: *See supra* note 107.

[^399]: Brown v. Glines, 444 U.S. 348, 356 n.13 (1980). *See supra*
    notes 240-55 and accompanying text.