Guns and Gags: How the Military Can Unduly Curb the Free Speech Rights of Soldiers

a line of soldiers stands in salute
Soldiers of the 48th Infantry Brigade Combat Team on July 30 at Fort Stewart in Georgia, after their return from deployment to Afghanistan. (Curtis Compton/Atlanta Journal-Constitution/AP/The Washington Post)

By Jaime Moore-Carrillo

In the 1995 American film “Crimson Tide,” an executive officer on a nuclear submarine played by Denzel Washington struggles to navigate tensions with his commanding officer. When the subordinate officer doubts his boss’s methods, he is calmly reminded: “We’re here to preserve democracy — not to practice it.”

The response captures a reality of U.S. military life: Military personnel inhabit a more tightly regulated sphere of freedoms than their civilian counterparts. When civilians recite the oath to become a soldier, many of their constitutional rights — including freedom of expression — are restricted. 

At face value, this restriction seems sensible, though ironic. Tight-lipped obedience and rigid discipline, not the freewheeling exercise of liberties, facilitate order and effectiveness — explicable priorities for the U.S. military.

Effectiveness is all well and good. But the military’s imposition of sweeping limits on expression can stifle the constitutional rights of servicemen and women to a degree that exhibits little tangible benefit for military efficacy. Too often, behavioral control treads into senseless suppression. 

U.S. legal scholars have long upheld the notion that the military is a “specialized society separate from civilian society,” as  Supreme Court Justice William Rehnquist once put it. A world somewhat removed, it is dictated by its own rules, expectations, and culture, according to the Freedom Forum Institute, an educational group. 

In practice, this distinction is largely valid. Members of the military are subject to their own laws, and many live in sprawling bases away from friends and family. The military is, in fact, governed by the Uniform Code of Military Justice (UCMJ), a whopping 770-page manual of laws, procedures, and punishments signed into law in 1950 by President Harry Truman.

For decades, First Amendment advocates have raised concerns with four particular “punitive articles” of the UCMJ: three articles that penalize “contempt towards public officials,” “failure to obey orders and regulations,” and “conduct unbecoming of an officer;” as well as one that outlines a set of general punitive measures. Each article regulates the behavior and speech of soldiers; together, they put a tight muzzle on free expression among the ranks. 

For many soldiers and civilian onlookers, these restrictions constitute a necessary and justifiable trade-off — soldiers’ ability to express themselves is secondary to the national security they were hired to defend. 

The U.S. Supreme Court solidified this military-deference doctrine in the precedent-defining 1974 ruling Parker v. Levy. In public comments to other enlisted men, Howard Levy, an Army physician stationed in Fort Jackson, South Carolina, encouraged soldiers of color to “refuse to fight” in Vietnam, labeling U.S. Army Special Forces “liars and thieves and killers,” according to the Freedom Forum Institute.    

Army counsel prosecuted Levy, accusing him of making “intemperate, defamatory, provoking, disloyal, contemptuous and disrespectful” statements to fellow soldiers. He was subsequently tried by a military tribunal. After a series of appeals, the case reached the Supreme Court, which ruled 5-3 against Levy. 

“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections,” Rehnquist wrote in the majority opinion. “The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.”

The ruling against Levy was contentious but not necessarily unreasonable. Openly encouraging fellow soldiers to refuse combat during wartime could have security implications, as the court decided. Other crackdowns on expression, however, merit more concern. 

Seven years earlier, at the height of the Vietnam War, Second Lieutenant Henry Howe participated in an antiwar protest near his base in El Paso, Texas. Howe, who was off duty and wearing civilian clothes, carried a sign calling then-President Lyndon B. Johnson a fascist. He was swiftly charged by a general court martial with directing contemptuous words against the president and subsequently sentenced to hard labor and dismissal, a ruling that was upheld on appeal.

The court’s rationale was equal parts straightforward and problematic. Howe’s actions promoted “insubordination” and constituted a “clear and present danger to discipline within our armed services,” the court ruled, referencing the landmark Schenck v. U.S. ruling of 1919.

But these claims were also tenuous, as legal scholar Edward F. Sherman noted some years later. Howe protested off his military base and independently, without identifying himself as a military officer. It is unclear how he would be sowing insubordination among his comrades. Moreover, he was protesting the president, a political figure, not an immediate superior.

Howe’s case is not the only military overreach into free expression. In 1981, a military tribunal punished an Air Force psychologist and ordained rabbi for wearing a yarmulke outside of the base hospital, attire his superiors deemed against regulation. The case, Goldman v. Weinberger, reached the Supreme Court, where Rehnquist employed the same well-worn logic to rule against the rabbi.

These cases — two among several — reveal a tendency in the country’s military apparatus to trample the constitutional liberties of its members, sometimes for no meaningful, realizable purpose. As the digital revolution offers soldiers more outlets for expression, further battles between expression and supposed order are on the horizon. 

Congress must relax the military’s absolutist restrictions on expression and introduce practical procedures to evaluate whether an officer’s actions pose a meaningful threat to military functionality: Clearly, displays of religious observance do not carry the same weight as attempts to undermine the military’s efforts. Ultimately, limitations on free expression in the military should be reassessed so the laws governing people in uniform better reflect the ideals they are fighting for.

Jaime Moore-Carrillo ’22 is a sophomore in the Georgetown University School of Foreign Service, majoring in international politics and minoring in history. Originally from Boston, Jaime works as a staff writer for The Hoya and serves as an editor for The Caravel.