Where the First Amendment Comes in Second
I yield to no one in my willingness to support sharp political criticism of elected officials, especially the President of the United States. Indeed it is precisely because so many people can exercise that right that we should look with deep caution at claims that any military personnel up or down the chain of command should be permitted to criticize any public official, or indeed take a public stand on any public issue, while in the service of the United States. The distinction between statements made as a member of the service and those made as a private individual carries no weight because of the easy confusion between the two, and the threat that both kinds of speech pose to military discipline down the chain of the command.
Therefore Sgt. Gary Stein should surely be on the hot seat for his efforts to publish his criticisms of President Obama while in active service of the United States. The same rights of robust debate are seriously curtailed by ordinary government employees and no place requires more discipline than the military. From the outside looking in, it is difficult to say what sanctions should be imposed. However, dismissal does not seem out of the question, even if lesser sanctions, whether a warning or a demotion in rank are also available. The principle here is universal and does not depend on who occupies the White House or what that President’s policies are. This is not a difficult constitutional case, even if it may be, as these matters often are, a politically ticklish one.
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May '10
Re: Where the First Amendment Comes in Second
I agree there. If you want to protest the COC, resign and then do it.
Nov '10
Re: Where the First Amendment Comes in Second
I agree; the ban imposed by the customs and traditions of the military has always stood us in good stead. The president may be an sob, but he is the President, and has to be obeyed as such, and with no backwash.
Aug '10
Re: Where the First Amendment Comes in Second
Absolutely correct, Professor.
Nov '10
Re: Where the First Amendment Comes in Second
Can I take a contrary position to encourage discussion?
If the President were a monarch with authority vested in his person rather than the office, I would yield the point. However, the soldier's criticism is of the person and not the office and the division of the person and the office must be allow to be bifurcated otherwise we live in a monarchy and not a republic. That is, he is a citizen soldier and not a liege-man.
Talk amongst yourselves...
Edited on April 10, 2012 at 12:39amAug '10
Re: Where the First Amendment Comes in Second
Robert,
This doesn't fit (to me) criticism of the "person, not the office":
"Another discussion on the site in March said he would refuse to obey orders given by Obama. He later clarified to say he meant illegal orders, which he has explained as orders such as sending the military to Syria without congressional approval."
Nov '10
Re: Where the First Amendment Comes in Second
Bill Waldron: Robert,
This doesn't fit (to me) criticism of the "person, not the office":
"Another discussion on the site in March said he would refuse to obey orders given by Obama. He later clarified to say he meant illegal orders, which he has explained as orders such as sending the military to Syria without congressional approval." · 0 minutes ago
Good point, refusal to obey orders would truly be insubordination. How about the main point?
This is the oath of enlistment to help our thinking:
I, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.
It occurs to me that the oath is to the constitution and not the country per se. Does this have a particular meaning that is not obvious on the surface?
Edited on April 10, 2012 at 1:07amJun '10
Re: Where the First Amendment Comes in Second
Is there any precedence? Punishment for breaching regulations should be expected, but I see no reason to extend greater punishment to this soldier than other past violations of this same rule. As a soldier of his own free will, his rights are not that of a citizen, until he resigns as a soldier. That's the way I see it. Fortunately for Mr. Epstein, I mostly agree with him so he can rest easier now...not so much for the unfortunate soldier.
Jul '10
Re: Where the First Amendment Comes in Second
Robert Promm: Can I take a contrary position to encourage discussion?
If the President were a monarch with authority vested in his person rather than the office, I would yield the point. However, the soldier's criticism is of the person and not the office and the division of the person and the office must be allow to be bifurcated otherwise we live in a monarchy and not a republic. That is, he is a citizen soldier and not a liege-man.
Talk amongst yourselves...
The Commander in Chief is the Commander in Chief. There is no person vs. office in the military, because your chain of command must count on your loyalty and you theirs in matters of life and death. The military makes allowance for dissent and protest, it is a Western tradition dating back at least as far as the militias of the GreekDemocracies. Discreetly, along proper channels.
I have a friend, a retired O5, who managed to make his retirement stick under W with just the right amount of dissent over drinks while deployed.
Loud criticism of authority figures can make young folk doubtful and confused when their families and ours need dutiful resolution from them.
Edited on April 10, 2012 at 7:01amApr '11
Re: Where the First Amendment Comes in Second
This is a nice theoretical but practical nonsense. I spent a decade in the service and swore an oath to the Constitution and not a man/office and to obey orders from the chain of command. I refuse an order at my own risk. All of these speak to appropriate respect to all levels of the chain of command - to the CinC all the way to my Department Head. I do not enjoy the luxury of making distinctions between my opinions of the rank and the person; they are one in the same. And this is the example we set for our subordinates.
This is a clear cut rule that everyone knows. If you pick a fight with the CinC you will lose.
Jul '10
Re: Where the First Amendment Comes in Second
He is being hard headed, defiant. Insubordinate. It is one thing to press your point by correspondence and legal challenge, another to protest and advocate from the ranks.
This is the flip side of Obama's trip to address the Naval Academy his first year. After several decisions calculated to antagonize our military and veterans, he makes an address under conditions where no cadet may sho disrespect without certainty of punishment so that his lap dogs in the lefty media can write silly drivel about how well received he was and how there was no evidence of dissent.
It may have been the quietest reception the cadets have ever given a president.
Aug '10
Re: Where the First Amendment Comes in Second
I agree with Mr Epstein (Professor, Dr? I am unclear as to the honorific), however I would like to hear his opinion as to where the line is. For the record, I spent 20 years in uniform and I am currently a civil servant in the DoD.
The line for active duty military has always been drawn with the presence of official duties, meaning that while one is free to support whatever political candidate, one was not allowed to wear the uniform to political events. So when the First Lady uses the military as a back drop for one of her husband's political announcements (such as this visit to Little Rock AFB.) Would he support the soldier's objection to being used as a political prop - keeping in mind that the soldier operates under the presumption that all orders given him are lawful - he would be obligated to 'prove' that the order given him to show up for the 1st lady's pronouncement is an unlawful order.
Does that change if the soldier is a draftee under indefinite enlistment?
In my case I must simply state that my position in no way reflects the position of the DoD.
Edited on April 10, 2012 at 1:24amJul '10
Re: Where the First Amendment Comes in Second
While we are on the topic, some here may not know that during WW II it was illegal to undermine the discipline of our forces by expressing doubt concerning the competence or character of our civilian and military leaders. Robert Heinlein once warned John W. Campbell off sending a letter to one of Campbell's writers in uniform raising cain over the brutally obvious incompetence of the White House and military leadership. FDR and his machine was not squeamish about harassing dissenters.
Nov '10
Re: Where the First Amendment Comes in Second
MSJL
This is a nice theoretical but practical nonsense. I spent a decade in the service and swore an oath to the Constitution and not a man/office and to obey orders from the chain of command. I refuse an order at my own risk. All of these speak to appropriate respect to all levels of the chain of command - to the CinC all the way to my Department Head. I do not enjoy the luxury of making distinctions between my opinions of the rank and the person; they are one in the same. And this is the example we set for our subordinates.
This is a clear cut rule that everyone knows. If you pick a fight with the CinC you will lose. · 2 minutes ago
Your response is splitting the horns. Disobedience is not what I posited. I said criticism. In a monarchy, criticism of the sovereign is treason. It a republic, the president does not have that shield.
Edited on April 10, 2012 at 1:29amAug '10
Re: Where the First Amendment Comes in Second
While continuing my statement that my opinion is in no way shared by the Department of Defense - the line existed where one wore the uniform, not what one uttered while in the confidence of friends and not on duty. That has been tempered by the rule that one may not speak contemptuously of either the President or Congress. Did Sgt Stein speak contemptuously?
Bearing in mind that while refusal to obey an order is an affirmative defense, does that presume that one is not allowed to speak openly or even debate the circumstances under which one may have to 'fall on their sword' in order to prevent staining one's soul through the following of an illegal order.
If soldiers, rightfully ordered to perform an act that otherwise would be a violation of the laws of war (for example soldiers ordered to perform a reprisal) instead refuse to participate and take their case public - would Mr Epstein count that against them?
I have now laid out two cases, the first involving use as a political backdrop and the second a principled stand and both involving speech and I am curious to your response.
Dec '11
Re: Where the First Amendment Comes in Second
Lt. Watada got off, and is a leftwing hero. They have no room for criticism.
May '10
Re: Where the First Amendment Comes in Second
[Comment Redacted: DoD - violation of UCMJ, critical of Commander-in-Chief]
Aug '10
Re: Where the First Amendment Comes in Second
There were lots of rules against sedition, yet I remember my mil history profs telling me about the anti-war protests even then.
Mar '12
Re: Where the First Amendment Comes in Second
I disagree. If a Hugo Chavez type were elected and was trying to turn the office into a dictator, then criticism by the military would be both legitimate and right. While the current resident of the WH may not be quite a Hugo Chavez, I would not make a universal rule of prohibiting miltary members from criticizing the CinC.
May '11
Re: Where the First Amendment Comes in Second
Amen, Professor. The most important characteristic of our military and what makes the American people trust it so much is that it is apolitical. If we start becoming political we risk having a Dreyfuss Affair situation that seems all too ready to pop up in much of the conservative sphere.
May '10
Re: Where the First Amendment Comes in Second
Does the same rule apply to reservists and/or guardsmen? There have been members of Congress who have served as reservists while in office. Surely, they have made their opinions known and have criticized the president, particularly if the Commander in Chief belonged to the opposing party. They aren't on continuous active duty, but when deployed, their roles are indistinguishable from their active duty counterparts, are they not? Are we just supposed to disregard what they've gone on record as saying while not in uniform? I'll acknowledge that there is a difference, but considering how heavily we've relied on reservists and national guardsmen in recent years to fight our wars, it might be worth considering.