Ask the Lawyer: Freedom of speech isn’t really so for service members - Military Law, Military Law Advice, Ask a Lawyer - Army Times

Ask the Lawyer: Freedom of speech isn’t really so for service members

Lawyer Mathew B. Tully answers your questions.

Q. How can a service member face court-martial for creating a rap song that criticizes the Army when the Constitution grants us freedom of speech?

A Freedom of speech does not truly exist in the military. Service members always should think before they speak, lest they subject themselves to penalties of the Uniform Code of Military Justice.

Words that encourage violence, urge others to violate military regulations, or communications with the enemy are unlawful. So is using “contemptuous words” against the president, vice president, secretary of defense and other specified officials.

Examples of words that have created legal issues for service members: “fascists,” “thieves,” “murderers,” “tyrants,” “fools” and “gangsters.” It is also a crime to say things to other service members that could make them desert, disobey lawful orders or refuse to do their jobs.

Recently, Army Spc. Marc Hall — frustrated by being stop-lossed — wrote a rap song with violent lyrics that the Army says threatened his superior officers.

Hall has been charged under Article 134, “Communicating a Threat.” This requires a showing of several elements, including that the person “communicated certain language expressing a present determination or intent to wrongfully injure a person, property, or reputation of another person.”

This case likely will press the outer limits of the military’s approach to free speech and the ability of those in the military to express discontent with current events in artistic expressions.

Prosecutors will have to prove Hall’s speech violated laws under the UCMJ that are designed to protect others.

Service members should not be discouraged to communicate legitimate concerns to appropriate authorities. But an Article 134 charge should serve as an encouragement to think very carefully about expressing personal beliefs.

Protections and limits

Many regulations attempt to protect or restrict a service member’s rights to free speech. Examples:

• DoD Directive 1325.6 addresses “Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces.” This directive also has a provision that tries to prevent racial, gender, religious or ethnic hatred.

• DoD Directive 1334.1 addresses the “Wearing of the Uniform” by prohibiting the wear of uniform at certain events, including demonstrations.

• The Military Whistleblower Act, U.S. Code Title 10, Section 1034, protects the right to complain to Congress and the inspector general, and protects members from retaliation for filing complaints.

• Article 138 of the Uniform Code of Military Justice provides the right to file a complaint against a commander for abuse of authority.

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail questions to askthelawyer@atpco.com. The information in this column is not intended as legal advice.