JAG: Military May Not be able to Ban Offensive Websites

In the middle of the ongoing discussion about US military troops and their use of social media comes an interesting piece at the Marine Corps Times, where former military JAGs make the case that the Marines may not be able to police troops’ use of certain websites, despite their implication they may try to do so.

The impetus behind the discussion are generally certain Facebook pages that were denigrating toward female Marines.  Said General James Amos, Commandant of the Marine Corps:

In a May 29 letter to Rep. Jackie Speier, D-Calif., Gen. Jim Amos denounced Facebook pages and other social media postings that “denigrate women in the Marine Corps.”

“We share your indignation; I am responding on behalf of the Secretary of Defense,” he wrote. “These depictions are neither official Marine Corps communications nor reflective of the U.S. Marine Corps’ sentiments toward women.”

More specifically,

Amos said the service is examining the possibility of making certain websites off-limits to Marines…

The model for such action is the way the military “blacklists” certain off-base establishments for its troops.  For example, a bar outside a post gate may be known for serving alcohol to those underage or something like that, so the base may ban its troops from patronizing that business.

The article cites LtCol (ret) Gary Solis, a “military law expert and professor at Georgetown,” saying that such a comparison is awkward:

To equate specific Web pages with businesses on Marine Corps installation off-limits lists, such as brothels or price-gouging car dealerships, is not a perfect comparison, Solis said, since each establishment ban is “based on a specific and articulable danger.” It’s better to compare the sites to a printed publication, he said.

With regard to the US military’s restriction of the “free speech” of its troops,

Solis cited the 1974 Supreme Court case Parker v. Levy, which found that the necessity of order and discipline can permit military commanders to restrict free speech and other rights in ways that are prohibited outside the military. Nonetheless, since freedom of expression is a fundamental right, he said any military restriction would have to be carefully constructed and tightly tailored to address a specific issue.

Solis noted that the military is perfectly able to issue such orders — but whether they stand up in court (should they be challenged at all) is another question altogether.

Importantly, he cited the potential impropriety of “interfering” in the “private” lives of US troops:

While the Marine Corps can easily regulate what happens on its official networks during duty hours, controlling off-duty surfing is another matter, said Philip Cave, a retired Navy judge advocate general with three decades practicing military law. Like banning Marines from having certain books in their barracks rooms, keeping troops off certain websites may be illegal intrusion into their personal affairs, he said.

The article cites another “law expert” and current Air Force reservist, LtCol David J.R. Frakt, noting that the military has a high bar to surpass if it wants to restrict troops’ rights:

“There’s a sort of myth out there when you join the military you give up your free speech rights, and that’s not true,” he said. “They may be limited, but there still has to be some legitimate mission-based justification for a restriction.”

US Rep Jackie Speier (D-Ca) apparently misunderstood the complexities of these issues when she dismissed the difficulties General Amos and others have expressed:

“If this happened in the private sector, these individuals would be fired,” she said.

There is a key factor she may have forgotten: the US Constitution.  The “supreme law of the land” does not restrict a “private sector” company from firing an employee who exercises his free speech, because the Constitution applies only to the government.  So it’s not that simple if the government — the military — wants to “fire” or otherwise restrict a troop’s ability to exercise his constitutionally protected rights.