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Military Personnel Have Free Speech Rights

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Posted on April 16 2010 8:00 am

Do military servicemen and women have a First Amendment right to speak out on matters of public policy? That issue has been raised in a recent incident involving Marine Corps Sergeant Gary Stein. It’s an increasingly important question because new social media networking tools have empowered each and every individual with the tools of mass communication. As such, Sergeant Stein’s case is hardly unique. Nor will it be the last.

Indeed, empowered with new 21st century communication technologies, more and more military members are speaking out and writing about contentious issues. They are doing so, moreover, in ways that conflict with the military’s hierarchical nature and the military’s increasingly antiquated desire to command and control its personnel.

In the case of Sergeant Stein, he was “counseled” by his military superiors after creating a Facebook page for Armed Forces Tea Party Patriots and after posting online comments critical of President Obama’s healthcare plan. The sergeant’s entrepreneurial publishing efforts caught the attention of his chain of command, and not, apparently, in a good way. Indeed, Sergeant Stein was warned that by exercising his free speech rights, he may be running afoul of Defense Department directives that limit and circumscribe a military member’s political activities.

The sergeant took down his Facebook page and contacted independent attorneys and the American Civil Liberties Union, all of whom told him he had done nothing wrong. Military service, he was told, does not mean that a service member forfeits his First Amendment right. It simply means that a military member must exercise  his free speech rights in his own spare time and in his capacity as a private citizen.

“There are restrictions on time, place and manner,” military attorney and former Marine Patrick Callahan told the San Diego Union-Tribune. “For instance, service members can’t go to political rallies in uniform. The issue becomes whether somebody is doing it in their professional capacity.”

That’s exactly right. And that’s why Stein has since republished his Facebook page. Yet there are other disturbing incidents of military officials trying to censor and punish our soldiers, sailors, airmen, and Marines who design to exercise their First Amendment right to free speech. These military officials should heed the counsel of former Navy Secretary James Webb, who in 1978 wrote:

“A citizen does not give up his First Amendment right to free speech when he puts on a military uniform, with small exceptions.”

Webb, of course, is an attorney and a highly decorated Marine Corps veteran of the Vietnam War. As such, he has a deep appreciation for the importance of robust public-policy debates which allow for the views and perspectives of our military servicemen and women.

That’s something military leaders need to understand and respect. They need to realize that civic-minded engagement by our fighting men and women is not a sign of military weakness, but rather a sign of military strength. Bring it on.

John R. Guardiano is a writer and analyst in Arlington, Virginia. You can follow him on Twitter.

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