Military expression is an area of military law pertaining to the United States military that relates to the free speech rights of its service members. While "military free speech" was the term used during the Vietnam War era, "military expression" has become a niche area of military law since 2001. Besides media references relating to specific cases, the term was used at military whistleblower committee hearings with members of the United States House of Representatives and Senate on May 14, 2008. Transcripts of the hearings show that attorney Mike Lebowitz was identified as testifying as a legal expert in "military expression". That hearing also included references by U.S. Representative Sheila Jackson Lee (D-TX) who also referred to the area of law as "military expression".
Limitations on military expression
While the civilian population of the United States is afforded the right to free expression under the First Amendment, the U.S. Supreme Court has affirmed the notion that service members have a reduced level of free speech. While the Court acknowledged that service members do have First Amendment rights, these rights are limited:
They do, in fact, have the same first amendment rights as their civilian brothers. They are, however, not absolute...The difference is that the military has peculiar needs and interests apart from those of the civilian community it serves, and they preclude the exercise of the right of free speech on as broad a basis as is the practice in the civilian community. No officer or man in the armed forces has a right, be it constitutional, statutory or otherwise, to publish any information (or make any statement) which will imperil his unit or its cause.
After September 11, 2001
With the advent of the Iraq War in 2003, the issue of military expression was again in the public eye as a relatively small amount of service members and veterans began demonstrating. One case revolved around a former Marine (still under contract with the IRR) who was photographed by the Washington Post wearing a partial uniform during an anti-war demonstration in Washington, D.C. The individual faced disciplinary action for his participation in this demonstration, as well as for a politically charged email he sent to a Marine officer. However, in this case, the service member avoided the other than honorable discharge being sought by the military due to the First Amendment arguments posed on his behalf. That case, which was argued by attorney Mike Lebowitz in representation of anti-war and political activist Adam Kokesh, is regarded as the first military expression case of its kind to result generally favorably for the service member.
Effects of technology
- Vagts, Detlev F. (February 1957). "Free Speech in the Armed Forces". Columbia Law Review. 57 (12): 187–218. ISSN 0010-1958. OCLC 4895173605.
- See Yale Conservative Party lecture for 2009 titled "Military Expression in the Modern Armed Forces"
- transcripts for May 14, 2008, see also C-SPAN coverage of hearings
- United States v. Voorhees 135 U.S. 550 (10 S.Ct. 841, 34 L.Ed. 258)
- http://www.airpower.maxwell.af.mil/airchronicles/aureview/1980/may-jun/moran.html Archived November 23, 2007, at the Wayback Machine.
- Montgomery, David (31 May 2007). "Antiwar to the Corps: Marine Reservist-Protesters Face Discipline". Washington Post.
- Stephen Koff, "Corps accused of 'muzzle' tactics", Cleveland Plain Dealer, May 31, 2007
- Sharrock, Justine (29 September 2008). "Zip It, Soldier!: What happens to Iraq veterans who speak out against the war?". Mother Jones.
- "Modern Whig Party has Appeal to Some Troops," by William H. McMichael Military Times on June 23, 2008