VIEWPOINT: Military's Social Media Rules Cross the Line

A recent Army News Service story out of Fort Benning got me thinking. It got me thinking about what liberties soldiers give up to serve their country -- the liberties they willingly yield, and the liberties they shouldn't have to give up no matter what.

It seems that if you're a soldier, you aren't free to express your opinions even in the comfort of your own home -- because according to the ARNEWS article, posting the wrong thing on Facebook can get you punished under the Uniform Code of Military Justice.

Let's be clear here: We're not talking only about posting sensitive material that could violate operational security. Of course that's prohibited, and of course it should be. But according to the ARNEWS report, soldiers can also get slapped down for speaking critically of superiors, linking to "inappropriate" material, making "disloyal statements" or posting anything "prejudicial to good order."

Of course, that begs the question: Who decides what's inappropriate, what kind of statements are disloyal, and what is prejudicial to good order? I have a suspicion that the person who decides that is whomever doesn't like what you've posted and has a bit more rank on his collar than you.

Suppose a soldier is personally against the current war in Afghanistan? Does that make him disloyal? What if he deployed with his unit and served honorably despite his personal misgivings? Still disloyal? But what if he expresses his position on the war on his Facebook page? 

And what's "inappropriate?" If a soldier links to a racy joke? A political site where the politics aren't in line with his commander's?

The point is that the UCMJ gives commanders entirely too much latitude in deciding how to restrain their soldiers' speech. Take, for instance, this exerpt on "contempt" from Article 88:

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

First, I'd like to point out that you can get court-martialed for criticizing the secretary of transportation, for heaven's sake. Also note that you can be disciplined for "contemptuous words" against pretty much any official in any state where you are on duty -- or even merely present.

This is thoughtcrime, pure and simple. It's one thing for a soldier to keep his thoughts to himself during the duty day -- nobody would keep his job long if he screamed "The boss is a jerk!" right there in the office -- but if you have contempt for the secretary of transportation, or the governor, or the state legislature, then by god, you should be able to express it on your own time.

According to the ARNEWS report, Capt. Steve Szymanski, senior trial counsel with the Criminal Law Division of Fort Benning's Office of the Staff Judge Advocate, said that despite these restrictions, soldiers are still free to express themselves under the First Amendment. Forgive me, captain, but those words ring a bit hollow. Forbidding soldiers to criticize what they disagree with, judging certain statements "disloyal" or "inappropriate" -- all of that is a violation of the First Amendment.

Certainly, there are some kinds of speech that are inappropriate for service members. Anything that violates operational security is and should be off-limits. Soldiers are -- and should be -- prohibited from campaigning for a political cause while in uniform, because they could be wrongly seen to represent the Army's position.

But criticism is not disloyalty, or even necessarily contempt. The fact is, the UCMJ is too vague on some of these concepts, especially since it's an archaic document being twisted to fit an Internet age. For example, Article 91 -- one of the articles under which a soldier could be punished for improper social media use -- contains a section on dueling.

Until the UCMJ is amended to contain Internet-specific speech provisions -- provisions which still protect service members' rights -- the military has no business punishing soldiers for their opinions.

These men and women fight and die for our right to express our thoughts, however unpopular they may be. They shouldn't have to give up the right to express theirs.

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