Free Speech in the Military: Can Service Members Be Punished for Expression?

Service members have First Amendment rights, but military service comes with restrictions that civilians don’t face. The Uniform Code of Military Justice (UCMJ) allows the military to punish certain speech and expression when it involves disrespect toward superiors, disobedience, conduct that harms good order and discipline, or other prohibited conduct. The military’s need for discipline and an effective chain of command can justify limits on expression that would raise very different constitutional questions in civilian life.

Knowing where the First Amendment ends and military discipline begins can be difficult. A political opinion, social media post, complaint about command, or criticism of government officials may receive different treatment depending on who said it, what was said, where it was said, and how it affected military duties. Understanding those distinctions can help service members recognize when protected expression may become a UCMJ issue.

For legal help, speak with a military law lawyer about your specific circumstances.

How Does the First Amendment Apply To Service Members?

Military service members don’t give up their free speech rights when they join the armed forces. However, those rights can be subject to restrictions that wouldn’t necessarily apply to civilians.

In Parker v. Levy (1974), the Supreme Court recognized that the unique demands of military service can justify limits on free speech when military necessity and the need for discipline are involved.

Why Are Military Restrictions Different from Civilian Restrictions?

The military operates through a strict chain of command that depends on obedience, discipline, readiness, morale, and unit cohesion. Because of those concerns, courts generally give military leaders greater deference when reviewing restrictions on a service member’s expression.

In Goldman v. Weinberger (1986), the Supreme Court recognized that military necessity can support regulations that might face greater constitutional scrutiny outside the armed forces.

Which UCMJ Articles Can Limit a Service Member’s Expression?

The Uniform Code of Military Justice (UCMJ) is the military’s criminal code, and several of its provisions can apply when a service member’s expression crosses certain lines. Which article applies depends on what was said or done and the surrounding circumstances.

Article 88: Contempt Toward Certain Officials

Commissioned officers can face discipline for using contemptuous words against certain government officials, including the President, Vice President, Congress, the Secretary of Defense, secretaries of military departments, and certain state officials. This restriction clearly shows that speech rights in the military can be narrower than those enjoyed by civilians.

Articles 89, 90, and 91: Disrespect and Insubordination

The military chain of command receives special legal protection. Articles 89 and 90 address disrespect toward, or willful disobedience of, superior commissioned officers.

Article 91 addresses insubordinate conduct toward warrant officers, noncommissioned officers, and petty officers. A service member can disagree with or criticize a superior, but the manner and circumstances of the communication can matter..

Article 92: Violating Lawful Orders or Regulations

Military orders and regulations aren’t requests or suggestions. Violating a lawful general order or regulation can result in punishment under the UCMJ.

Article 133: Conduct Unbecoming an Officer

Commissioned officers, cadets, and midshipmen are held to standards of conduct that can extend to their speech and other forms of expression. Conduct that falls below those standards may be punishable under this provision. In Parker v. Levy, the Supreme Court rejected arguments that the provision was unconstitutionally vague or overly broad.

Article 134: the General Article

Some conduct can be punishable when it is prejudicial to good order and discipline or is likely to bring discredit upon the armed forces. Controversial or offensive speech isn’t automatically punishable, though. The military context and the elements of the alleged offense matter.

What Types of Expression Are Generally Protected?

The First Amendment can still protect political views and criticism of the government, particularly when the expression doesn’t violate a military rule or interfere with discipline and military duties.

Holding or expressing a political opinion doesn’t automatically violate military rules. Service members can generally voice personal views, but the circumstances matter. They can also make statements that express religious beliefs.

What Expression Can Lose First Amendment Protection in the Military?

Certain statements and communications are not protected under the First Amendment. For military members, the list of unprotected speech differs slightly.

Protected speech doesn’t include speech that undermines good order or discipline. This refers to the military chain of command that must be respected. For example, speech connected to refusing, or encouraging others to refuse, lawful orders. It also includes disrespectful or insubordinate speech. The speech must go beyond contemptuous words in an ordinary disagreement to become disrespectful.

Service members are prohibited from participating in extremist activities. This includes advocacy through oral, written, electronic, or nonverbal communication and specifically addresses social-media activity. Simply making an unpopular political expression isn’t enough. Conduct must go further to be considered extremist.

Threats, harassment, and unlawful conduct are also prohibited. This could include fighting words, threats, and harassment.

Does the First Amendment Protect Service Members’ Social Media Posts?

Personal social media accounts aren’t exempt from military regulations. Service members can express their own opinions online. However, restrictions may apply to the subject matter of their public social media posts. Posts also can’t disclose classified, sensitive, or protected information.

Military rules may also apply to online extremist activity, harassment, bullying, hazing, retaliation, and other prohibited conduct. Saying, “It was on my personal account,” isn’t necessarily a defense if the post violates an applicable rule or regulation. As with other forms of expression, the post’s content and the surrounding circumstances matter.

What Happens If the Military Believes a Service Member Violated a Speech Restriction?

Because each situation is fact-specific, outcomes vary. The military may take several disciplinary actions to address the situation.

One option is administrative corrective action. Instead of a court-martial, a service member may receive nonpunitive measures, such as counseling, an admonition, a reprimand, or extra military instruction. Administrative action can affect future assignments, promotions, evaluations, privileges, and overall career status.

Another potential action is a nonjudicial punishment. Nonjudicial punishments take place under Article 15. This differs from a court-martial and gives commanders a way to address certain misconduct without a criminal trial.

For serious offenses, the service member may face court-martial charges. These function similarly to a civilian criminal charge. The prosecution must establish the elements of the charged offense. Controversial or unpopular expression isn’t, by itself, the same as proving a UCMJ violation.

What Should a Service Member Do If Punished for Speech?

Military personnel shouldn’t assume that First Amendment protections automatically apply to their situation. They also shouldn’t assume that those protections prevent punishment.

To prepare to defend themselves and address the situation, service members should take the following steps. Save the original post or statement by taking screenshots. Save any relevant orders or regulations that apply to the situation, communications with command, counseling statements, and disciplinary paperwork.

Determine exactly what rule or UCMJ article the military claims was violated. Consider speaking with military defense counsel or an attorney familiar with military law before making additional statements about the incident.

Speak with a Lawyer

Service members have First Amendment rights, but military service places real limits on how those rights can be exercised. If you’re facing discipline because of something you said, posted, or communicated, don’t assume the First Amendment settles the issue. An attorney familiar with military law can review the specific statement, the rule or UCMJ provision involved, and the disciplinary process to determine what protections may apply.

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