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OPINION | EDITORIAL: Speech writing

Tell it to our drill sergeant May 10, 2021 at 1:00 a.m.

The United States military is considering new restrictions on those in uniform who interact with extremist groups. Which is fine and dandy and even better for national security.

Except there have been some clutching of pearls by those professional aginners who say such restrictions violate the First Amendment rights of soldiers, airmen and sailors. To which we'd argue: Tell it to our drill sergeant.

Right now would normally be when we'd go into a writing rabbit hole and talk about what our drill sergeant might have said about our First Amendment rights, had we ever once brought them up.

We imagine the time instead when the whole company was on the pavement pushing ourselves up and down when he got the giggles. Think of a giant of a man in camo and a brown round giggling like a schoolgirl. When he caught his breath, he squeezed out: You boys volunteered for this!

First Amendment rights in the military? That sounds about as sensible as Second Amendment rights in the military. (They keep the rifles locked up in the armory.) Or Fourth Amendment rights. (Drill sergeants are notorious for throwing the contents of your locker over your bed.) As far as life, liberty and the pursuit of happiness, don't even ask this weekend. Passes revoked!

But in case a reader or two has never had the pleasure of meeting a drill sergeant while under his command for two months, let's take a more analytical approach to this column:

The courts, over the years, have understood that the military is a special case/context/environment. So special that it has its own criminal code. That's not something that you'd normally find in civilian life. But the Uniform Code of Military Justice rules the lives of those who wear the uniform. And it does not have a First Amendment.

The UCMJ prohibits service members from using "contemptuous speech" against the president of the United States and other political leaders. It has a sweeping prohibition against "conduct unbecoming an officer and gentleman." Members of the armed forces can be fired, docked pay, and even imprisoned (!) for attending certain rallies, such as anti-war efforts, even when off-duty and out of uniform. And the civilian courts in this country have consistently deferred to the USMJ in these matters.

Take the Orloff v. Willoughby case of 1953, when the U.S. Supreme Court said, "The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters."

Also take 1974's Parker v. Levy case, which also went to the nation's highest court: "The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it." Such as convicting an Army doctor of telling other soldiers to refuse service in Vietnam.

The legal reviews are blistered all over with court cases, but mostly the civilian courts get it right on this one: The military is a special environment, and needs special rules.

Does this mean the current push to restrict military service members from joining anti-government and even white supremacist move- ments won't end up in court? No. It just means the astray service member likely won't win his case.

The new secretary of defense, Lloyd Austin, has told his people that basic rights of the troops is important, but . . . there's always a but . . . .

"But keep in mind that we have also taken oaths, and we also have a set of values that we as a military and we as a department espouse," a senior defense official told the papers. "And if that speech isn't in line with our values, then it makes it arguably impossible for that individual to be a good teammate and to be in line with the good order and discipline of units."

The civil liberty types objected. As you knew they would:

"If you try to criminalize thoughts and beliefs," a lawyer with First Liberty said, "every defense attorney in the country is going to be doing cartwheels to try to line up clients."

But, as a Pentagon spokesman countered, this isn't about thoughts: "This is not about being the thought police. It's not about identifying you as an individual and what's in between your ears. It's about what you do with what's between your ears. It's about the behavior and the conduct that is inspired by or influenced by this kind of ideology."

It's also about common sense, if we're still allowed to suggest such a thing.

Those who've joined the military would be the first to acknowledge this fact: They give up (or gave up) many of their rights so the civilian world can sleep easy with theirs. They don't talk back to their drill sergeant so you can talk back to your U.S. representative. Their liberties are restricted to the base so that you have the liberty to travel pert near anywhere. And they forgo their chance at going to the political rally so that you can go to all you want.

That is all.

Fall out.


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