The military, freedom of speech, and the internet: Preserving operational security and servicemembers' right of free speech

Texas Law Review

Volumn 87, Issue 2, 2008, Pages 463-486

  Cornyn, Danley K ^a  

^a NONE

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EID: 59149097048     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (154)

1. Parker v. Levy, 417 U.S. 733, 743 (1974).
2. See, e.g., Political Activities by Members of the Armed Forces, Dep't of Def. Directive No. 1344.10 (Feb. 19, 2008), available at http://www.dtic.mil/whs/directives/corres/pdf/134410p.pdf (prohibiting political participation by servicemembers while in uniform).
3. John G. Kester, Soldiers Who Insult the President: An Uneasy Look at Article 88 of the Uniform Code of Military Justice, 81 HARV. L. REV. 1697, 1762 (1968).
4. For example, an officer in a bar who is off duty and out of uniform could violate Article 88 of the Uniform Code of Military Justice, which forbids commissioned officers from using contemptuous language against officials. See 10 U.S.C. § 888 (2000) ("Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department... shall be punished as a court-martial may direct"). In contrast, communication on the Internet may be linked back to the speaker more easily. Comments made online may be traced back to the speaker, and they also remain forever in cyberspace. See The Internet Archive, http://www.archive.org/index.php (maintaining an archive of almost the entire World Wide Web). There is some protection in anonymous speech on the Internet; however, new military regulations may prevent anonymous speech on the Internet by servicemembers. See infra subpart IV(C).
5. Dan Frosch, Pentagon Blocks 13 Web Sites from Military Computers, N.Y. TIMES, May 15, 2007, at A16 (quoting Army veteran and blogger Matthew Burden). As a result of this increased access to communication tools, family and friends of servicemembers now have a greater expectation that they will be able to stay in touch when their loved ones are deployed, some even going so far as to send computers to deployed loved ones because they felt communication had been insufficient. See Moni Basu, Georgia's Guard: The 48th: Georgia GIs in Iraq Often Without Net, ATLANTA J.-CONST., July 4, 2005, at A6 (discussing an effort to send used computers to Iraq).
6. Operations Security, Army Reg. 530-1, E-3.a(2)(b) (Apr. 19, 2007), available at http://blog. wired.com/defense/files/army-reg-530-l-updated. pdf.
7. Id. E-3.a(2).
8. Id. E-3.a(2)(a).
9. Id.
10. William J. Sharp, Blogs Study May Provide Credible Information, U.S. DEP'T OF DEF. TRANSFORMATION, June 29, 2006, http://www.defenselink.mil/transformation/articles/2006-06/ta 062906b.html. In addition to using blogs as a source of intelligence information, DOD has recognized the value of blogs as a public-relations tool and has used them to its advantage. It has created the "Bloggers Roundtable," a page on its Web site that provides source material for bloggers and online journalists. DefenseLink Blogger's Roundtable, http://www.defenselink.mil/Blogger/index.aspx. Similarly, Central Command (CENTCOM) has created a blogger-outreach program to get more accurate information to bloggers. Steve Alvarez, CENTCOM Team Engages 'Bloggers,' DEFENSELINK NEWS, Mar. 2, 2006, http://www.defenselink.mil/news/newsarticle.aspx?id=15287.
11. Rules Restrict Posting of Images, Words Online, AIR FORCE RESERVE COMMAND NEWS SERV., June 6, 2007, http://www.afrc.af.mil/news/story.asp?id=123056023.
12. Id.
13. Id.
14. Id. DOD has also blocked computers that are connected to the military network from accessing thirteen Web sites. Frosch, supra note 5, at A16. These Web sites include YouTube, MySpace, and other photo-sharing and music Web sites. Id. The military has identified both OPSEC and bandwidth concerns as the rationales for this policy. K.C. Jones, Military Blocks Soldiers' Access to Internet Radio and Social Networking Sites, INFO. WK., May 14, 2007, http://www.reclaimthemedia.org/ broadband-cable/military-blocks-soldiers-acces%3D5232. However, as one blogger noted, there are no gaming sites on the prohibited-site list, and those use a significant amount of bandwidth. Id. The policy only restricts access to these sites on military computer networks; servicemembers are still permitted to access these sites from Internet cafes and personal computers. Frosch, supra note 5, at A16. However, servicemembers' use of sites such as YouTube and MySpace may still be limited by the April 2007 OPSEC regulations. See infra section II(B)(2)
15. See Katherine C. Den Bleyker, Note, The First Amendment Versus Operational Security: Where Should the Milblogging Balance Lie?, 17 FORDHAMINTELL. PROP. MEDIA & ENT. L.J. 401, 407 (2007) (listing reasons given by servicemembers for starting their blogs, which include publishing important war stories left out of newscasts and keeping friends and family members updated on their activities). Military bloggers are often referred to as "milbloggers." Id. at 403. Many view military blogs as an important voice to combat what they perceive as one-sided reporting by the mainstream media. Id. at 407. Instead of relying solely on reports from professional journalists, servicemembers are able to provide firsthand accounts of military life and activities.
16. See id. at 407 n. 23 (comparing the account of a roadside bombing by a milblogger with that of the official statement released by the Army). Thus these blogs represent a variety of viewpoints, which, in turn, allow the general public greater access to information so they can draw their own conclusions about military activities.
17. Id. at 406.
18. Memorandum from Lt. Gen. John R. Vines, Headquarters, Multi-National Corps-Iraq 1 (Apr. 6, 2005), available at www.mediabistro.com/fishbowlDC/ original/iraqblogrules.pdf.
19. Id. at 2-3.
20. Id. at 3. However, the policy made it clear that it was "the responsibility of [servicemembers] to ensure that any personal web sites and web logs d[id] not contain prohibited information as defined in [the] policy." Id. The Army maintained a Web site with examples of blogs that met the requirements of the policy and some that did not, in order to help servicemembers make this determination. Bleyker, supra note 15, at 411.
21. Bleyker, supra note 15, at 410.
22. Memorandum from Lt. Gen. John R. Vines, supra note 17, at 3.
23. Id. at 4.
24. Id. at 3;
25. see Bleyker, supra note 15, at 411-12 (discussing the punishment of three highprofile military bloggers).
26. See generally Operations Security, Army Reg. 530-1, Summary of Change (Apr. 19, 2007), available at http://blog.wired.com/defense/files/ army-reg-530-l-updated.pdf. Ironically, although the regulations are marked "For Official Use Only," they have been posted on the Internet. Id.
27. Id. at 4.
28. Id.
29. Noah Schactman, Army Squeezes Soldier Blogs, Maybe to Death, WIRED.COM, May 2, 2007, http://www.wired.com/politics/onlinerights/ news/2007/05/army-bloggers. The regulations also provide for an Army Web Risk Assessment Cell (AWRAC) to review the Army's publicly accessible sites to make sure that they comply with DOD and Army policies and best practices. Operations Security, Army Reg. 530-1, 2-21. AWRAC also checks blogs for the disclosure of critical or sensitive information. Id. at 2-21.a.
30. The statute provides, "Any person subject to this chapter who... violates or fails to obey any lawful general order or regulation... shall be punished as a court-martial may direct."
31. Schactman, supra note 27, at 1 (citing Operations Security, Army Reg. 530-1, 2-1.a(3)).
32. Ask Before You Tell on Blog, Military Says, N.Y. TIMES, May 3, 2007, at A20.
33. Schactman, supra note 27.
34. Ask Before You Tell, supra note 30, at A20.
35. Schactman, supra note 27, at 1.
36. Id. (quoting Jeff Nuding, recipient of a Bronze Star for service in Iraq).
37. Id. (citing a blogger who says the regulations are probably the end of his blogging).
38. For an excellent discussion of the role of courts in this context, see Linda Sugin, Note, First Amendment Rights of Military Personnel: Denying Rights to Those Who Defend Them, 62 N.Y.U. L. REV. 855, 863 (1987).
39. Civilian courts have limited jurisdiction to review decisions from the military court system, which features an extensive system of appeals. See 10 U.S.C. §§ 862, 866-869 (2000) (laying out the system of appeals). The United States Supreme Court has "approved the enforcement of... military customs and usages by courts-martial from the early days of this Nation." Parker v. Levy, 417 U.S. 733, 744 (1974).
40. The initial decision to subject a servicemember to court-martial is usually made by the commanding officer. See 10 U.S.C. § 822 (establishing who may convene courts-martial). The commanding officer must choose between three types of courts-martial depending upon the type of infraction.
41. See id. § 816 (describing the three types of courts-martial). The Court of Criminal Appeals can then review both the law and the facts of court-martial decisions. Id. § 866. The highest court in the military system is the United States Court of Appeals for the Armed Forces, a civilian court that reviews errors of law in courtsmartial.
42. See id. § 867(c) ("The Court of Appeals for the Armed Forces shall take action only with respect to matters of law.");
43. id. § 942(b) ("Each judge of the court shall be appointed from civilian life by the President, by and with the advice and consent of the Senate...."). The United States Supreme Court then has limited review of decisions of the Court of Appeals for the Armed Forces by writ of certiorari. Id. § 867a (limiting Supreme Court review to cases that meet the criteria in 28 U.S.C. § 1259 (2000), and specifically excluding review of Court of Appeals for the Armed Forces' refusal to grant a petition for review). A servicemember may challenge the result of a court-martial in the federal court system through a writ of habeas corpus when constitutional rights are involved. Burns v. Wilson, 346 U.S. 137, 139 (1953).
44. Parker, 417 U.S. at 743.
45. Burns, 346 U.S. at 140.
46. Porker, 417 U.S. at 758.
47. Id. at 759 (quoting United States v. Priest, 21 C.M.A. 564, 570 (1972)).
48. 417 U.S. 733(1974).
49. Id. at 737.
50. Id.
51. Id. at 761.
52. Jonathan Turley, The Military Pocket Republic, 97 Nw. U. L. REV. 1, 73 (2002).
53. 10 U.S.C. § 888 (2000) ("Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department... shall be punished as a court-martial may direct."). The UCMJ is codified at 10 U.S.C. §§ 801-946.
54. See Kester, supra note 3, at 1760;
55. see also David Luban, Lawfare and Legal Ethics in Guantánamo, 60 STAN. L. REV. 1981, 2016 (2008) (noting that Article 88 is "rarely used"); Emily Reuter, Note, Second Class Citizen Soldiers: A Proposal for Greater First Amendment Protections for America's Military Personnel, 16 WM. & MARY BILL RTS. J. 315, 320 (2007) (observing that there has been only one Article 88 conviction).
56. Kester, supra note 3, at 1761 & n. 339;
57. see Robert N. Strassfeld, Lose in Vietnam, Bring the Boys Home, 82 N.C. L. REV. 1891, 1905 (2004) (discussing various prosecutions under Articles 133 and 134 for political dissent).
58. 10 U.S.C. §933.
59. Id. § 934.
60. Political Activities by Members of the Armed Forces, Dep't of Def. Directive No. 1344.10 § 4.1.2 (Feb. 19, 2008), available at http://www.dtic.mil/whs/directives/corres/pdf/134410p.pdf;
61. see also Turley, supra note 45, at 72 ("[M]ilitary citizens are barred from open political expression or organizing within the ranks.").
62. Turley, supra note 45, at 73.
63. Parker v. Levy, 417 U.S. 733, 768-69 (1974) (Douglas, J., dissenting).
64. For a discussion of the enactment of Article 88 and prosecution of servicemembers for their speech, see generally Kester, supra note 3, at 1718.
65. Id. at 1721-22.
66. Id.
67. Id. at 1725.
68. Id. at 1726.
69. Id. In 1917, President Wilson created the Censorship Board to assist in the enforcement of the Trading with the Enemy Act and the Espionage Act, which gave the Postmaster General authority to refuse to mail material that was considered to be "detrimental to military success." Byron Price, Governmental Censorship in War-Time, 36 Am. POL. SCI. REV. 837, 840 (1942).
70. During World War II, President Roosevelt established the Office of Censorship less than two weeks after the Japanese attack on Pearl Harbor. Id. at 841. The Director of Censorship was authorized to use his discretion to censor all communications between the United States and foreign countries, including communications via radio, cable, mail, or any other means of transmission. Id. At the time of its formation, the Office of Censorship was expected to have 16,000 employees when fully staffed. Id. at 842. The censors sought "to stop any information which the enemy would like to have... [such as] defense matters, shipping data, weather conditions, and details of war production." Id. at 843. Myron Fox, the vice president of the Military Postal History Society, has posited that censorship ended after World War II because the military determined that "it just wasn't worth it." PBS, War Letters, Censorship!, http://www.pbs.org/wgbh/ amex/warletters/sfeature/sf-censorship.html. However, the April 2007 OPSEC regulations require the review of letters in addition to e-mail and Internet postings, indicating that the military has revised its opinion regarding the utility of censoring letters. See Operations Security, Army Reg. 530-1, 2-l(g)(2) (Apr. 19, 2007), available at http://blog.wired.com/defense/ files/army-reg-530-l-updated.pdf.
71. Kester, supra note 3, at 1726.
72. UNITED STATES MANUAL FOR COURTS- MARTIAL, at IV-17, ¶ 12.c (2008), available at http://www.au.af.mil/au/awc/awcgate/law/mcm.pdf.
73. Kester, supra note 3, at 1738.
74. Id.
75. 39 M.J. 125 (C.M.A. 1994).
76. Id. at 126-27.
77. Id. at 127.
78. In Schenck v. United States, the United States Supreme Court held that speech could be restricted if "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." 249 U.S. 47, 52 (1919).
79. Hartwig, 39 M.J. at 128.
80. Id. (quoting UNITED STATES MANUAL FOR COURTS-MARTIAL, at IV-108, ¶ 59.c(2) (1984)).
81. See, e.g., Aya Gruber, Garbage Pails and Puppy Dog Tails: Is That What Katz Is Made Of?, 41 U.C. DAVIS L. REV. 781, 810 (2008) (comparing public communication on the Internet such as "creating a public Web site, posting a public bulletin, or engaging in a public chat" with private communication such as sending an e-mail, which is "a written message... [not intended] for public viewing").
82. In fact, some courts have found a diminished expectation of privacy for e-mail. E.g., United States v. Charbonneau, 979 F. Supp. 1177, 1184 (S.D. Ohio 1997) (noting that there is a limited expectation of privacy for e-mail messages sent via AOL);
83. see also United States v. Maxwell, 45 M.J. 406, 418-19 (C.A.A.F. 1996) (stating that the expectation of privacy for e-mail transmissions depends on the type of e-mail involved, and that forwarded e-mail and chat rooms have no expectation of privacy).
84. See Doninger v. Niehoff, 514 F. Supp. 2d 199, 202 (D. Conn. 2007) ("Postings on [social networking Web sites] and blogs are often very public."); United States v. Gines-Perez, 214 F. Supp. 2d 205, 225 (D.P.R. 2002) ("While it is true that there is no case law on point... it strikes the court as obvious that a claim to privacy is unavailable to someone who places information on an indisputably, public medium, such as the Internet, without taking any measures to protect the information.") (emphasis omitted), vacated on other grounds, 90 F. Appx. 3 (1st Cir. 2004).
85. Facebook, Privacy Policy, http://www.facebook.com/policy.php (effective Dec. 6, 2007).
86. See MANUAL FOR COURTS-MARTIAL, supra note 61, at IV-17, 7para; 12.c (explaining how broad dissemination of prohibited statements aggravates the offense).
87. 10 U.S.C. §888(2000).
88. Id. § 889.
89. Kester, supra note 3, at 1763.
90. Parker v. Levy, 417 U.S. 733, 755-56 (1974).
91. Id. at 757, 756-57 (quoting United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32 (1963) (internal quotations omitted)).
92. 10 U.S.C. § 1034(a) (2000).
93. Id. § 1034(b).
94. 444 U.S. 348(1980).
95. Id. at 352-53.
96. Id. at 350.
97. Id. at 351.
98. Id. at 360.
99. Id.
100. Id. at 360-61.
101. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995).
102. See McConnell v. FEC, 540 U.S. 93, 231 (2003) (holding that campaign-contribution-disclosure requirements bear a sufficient relationship to the important governmental interest of transparency in campaign finance).
103. 514 U.S. 334(1995).
104. Id. at 337.
105. Id. at 342.
106. Id. at 347, 351-53.
107. Id. at 342. The Court specifically mentioned the Federalist Papers and works by Mark Twain as examples of anonymous publications. Id. at 341 n. 4, 342.
108. Id. (quoting Talley v. California, 362 U.S. 60, 64 (I960)).
109. Id. at 357 (citation omitted).
110. 540 U.S. 93 (2003).
111. Pub. L. No. 107-155, 116 Stat. 81 (codified in scattered sections of 2, 28, and 47 U.S.C.).
112. McConnell, 540 U.S. at 190.
113. Id. at 128.
114. Id. at 143-44.
115. Id. at 206 n. 88. For further discussion of the differences between McIntyre and McConnell, see Lyrissa Barnett Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 NOTRE DAME L. REV. 1537, 1547-55 (2007).
116. Policy Concerning Homosexuality in the Armed Forces, 10 U.S.C. § 654 (2000).
117. Id. § 654(a)(6).
118. McVeigh v. Cohen, 983 F. Supp. 215, 219 (D.D.C. 1998).
119. Id. at 221-22.
120. Id. at 222.
121. 977 F. Supp. 1228 (N.D. Ga. 1997).
122. Id. at 1228.
123. Press Release, ACLU, Groups Challenge Georgia Law Restricting Free Speech in Cyber Space (Sept. 24, 1996), available at http://www.aclu.org/ privacy/speech/15519prs 19960924.html.
124. Id.
125. Id.
126. Miller, 977 F. Supp. at 1235.
127. Id. at 1234-35.
128. 983 F. Supp. 215 (D.D.C. 1998).
129. Id. at 221-22.
130. Id. at 217.
131. Id.
132. Id. at 221-22.
133. See supra note 106 and accompanying text.
134. See supra note 27 and accompanying text.
135. See BERNARD ROSTKER, I WANT YOU!: THE EVOLUTION OF THE ALL-VOLUNTEER FORCE 2 (2006) (asserting that one of the reasons the U.S. did away with the draft was an increasing lack of discipline among troops).
136. See, e.g., Patrick J. Buchanan, The 'Facts' on Exiles, N.Y. TIMES, Feb. 20, 1973, at 33 (discussing the varied estimates of the number of draft resisters who sought refuge in Canada during the Vietnam War).
137. See Tinker v. Des Moines Indep. Cmty. Sch. Dist, 393 U.S. 503, 506 (1969) (addressing the application of First Amendment rights to teachers and students "in light of the special characteristics of the school environment");
138. see also, e.g., Pell v. Procunier, 417 U.S. 817, 822 (1974) ("In the First Amendment context... a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.").
139. Tinker, 393 U.S. at 506.
140. See, e.g., Adler v. Bd. of Educ, 342 U.S. 485, 491-93 (1952) (reasoning that a state government may impose reasonable restrictions on its employees' rights of free speech and assembly because if the employees "do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere").
141. McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (Mass. 1892).
142. Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968).
143. Id. at 568.
144. The analogy between government employees and servicemembers is not perfect, in large part due to the military's specialized mission. Also, under current conceptions of military service, servicemembers may not have the ability to comment as citizens because the military is a "24-houra-day job." See Kester, supra note 3, at 1762 ("The military code has always been applied to soldiers both on- and off-duty, [and] military office has always been conceived to be a 24-hour-aday job...."). However, as discussed infra, tests applied in the government-as-employer context may be modified in order to both respect the special characteristics of the military and provide servicemembers with some speech rights.
145. Similarly, servicemembers would not have First Amendment protection for speech pursuant to their official duties. Cf, e.g., Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) ("[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.").
146. 461 U.S. 138 (1983).
147. Id. at 146.
148. This right to anonymous speech would also be subject to the balancing test discussed in section V(B)(1).
149. McIntyre v. Ohio Election Comm'n, 514 U.S. 334, 357 (1995).
150. Campaign-finance-disclosure laws may create their own conflicts in the military context. For example, a gay soldier who donates to the Log Cabin Republicans and whose contribution is disclosed under campaign-finance laws may be violating the military's Don't Ask, Don't Tell policy. William McGeveran, Mrs. McIntyre's Checkbook: Privacy Costs of Political Contribution Disclosure, 6 U. PA. J. CONST. L. 1, 18 (2003).
151. See Lidsky & Cotter, supra note 103, at 1556-58 (providing examples of the abuse of anonymous speech on the Internet).
152. Id.
153. Id. at 1557.
154. For a discussion of ways the military could use technical solutions to preserve the right to anonymous speech and still prevent violations of operational security requirements, see supra subpart V(B).