The First Amendment and the Military

New ruling on U.S. military's "don't ask, don't tell" policy is one of several recent First Amendment cases involving the armed services. (Photo credit: unknown)

New ruling on U.S. military's "don't ask, don't tell" policy is one of several recent First Amendment cases involving the armed services. (Photo credit: unknown)

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For those who respect the unique public service and sacrifice given by those in the armed forces, three cases in various stages of federal court process pose tough questions — but not as tough as they might seem, once carefully examined.

One decision, by a district court judge in Riverside a month ago — followed by a similar decision elsewhere in the Ninth Circuit a couple of weeks ago — holds that the Pentagon’s “Don’t Ask, Don’t Tell” policy violates the First Amendment rights of homosexual service members.

Those in the services can be required to limit their speech, associations and petitioning rights to some extent to conform with reasonable and necessary discipline and military order, the judge noted. But the DADT policy has a much wider impact on individuals’ lives than simply not spontaneously bringing their sexuality up for discussion while on duty. And it and demands a far more fundamental sacrifice than is necessary for military effectiveness, the judge concluded.

As noted in the decision (see pages 82-85 of the document attached to this article), the imposed silence reaches into all aspects of a service member’s personal life and identity that inevitably come up for casual mention on or off duty, so much so that service in uniform is simply unthinkable without the freedom to engage in any kind of sexual expression.

Silence or evasiveness about normally open and natural facts of personal life may, the decision notes, actually breed distrust corrosive to vital comradely bonding within a fighting unit.

For perspective, imagine DADT applied to heterosexuals as well, and the gag on any reference to wives or husbands, fiancées or fiancés, girlfriends or boyfriends, expressions of appreciation for the attractions of, or longing for, the opposite sex, or for that matter any talk about sexual or even romantic experience whatsoever.

All this expression would be forbidden — and where would that leave morale in the ranks?

It’s one thing for the country to ask men and women in the armed forces to give their lives if necessary so their fellow citizens may remain free and secure from harm. It’s quite another, this decision says, to ask them to give up having a life so that some of their comrades may remain comfortable.

The second legal issue, also appearing in two recent decisions, one in California, is presented by Congress’s more recent Stolen Valor Act, which criminalizes false claims to military decorations. The first decision by a federal judge in Colorado dismissed, on First Amendment grounds, the prosecution of a Denver man who posed as a former Marine who won the Purple Heart and the Silver Star for service in Iraq.

The second prosecution was of Xavier Alvarez, a board member of the Three Rivers Water District in Claremont who introduced himself at a public meeting in 2007 as a “retired Marine of 25 years” who had been awarded the Medal of Honor for actions in rescuing American hostages during the Iranian hostage crisis in 1979.

Total fiction.

But does anyone think less of the Medal of Honor or those who have won it because of Alvarez’s pathetic imposture?

After a district judge in Los Angeles refused to dismiss the case on First Amendment grounds, Alvarez pleaded guilty in exchange for permission to challenge the law before the Ninth U.S. Circuit Court of Appeals.

That court, in a 2-1 decision, ruled that the Stolen Valor Act violates the First Amendment in punishing a lie that, unlike a fraudulent statement to achieve an economic or other tangible benefit, or a misstatement meant to thwart a criminal investigation or obstruct justice, does nothing but inflate one’s accomplishments to curry public admiration, and harms no one but the liar himself, if exposed.

Many criticized this decision as wrongfully positing a “right to lie” without considering the difference between a moral and a legal right. As with lying to inflate one’s reputation, it’s not morally right to insult one’s mother, speak cruelly to one’s children, or laugh at a blind person’s trip and fall. But one has a legal right to do so.

Some legal rights are there to be exploited by scoundrels. This fact is what we mean by freedom. And in a political system where rule is not by force but by persuaded consent, a law punishing false claims to personal achievement to seek favor from the public would make political campaigns impossible.

Another case in people’s minds has been Snyder v. Phelps, in which the U.S. Supreme Curt heard oral argument earlier this month in review of a court of appeals decision that, on First Amendment grounds, held that the father of a Marine killed in Iraq could not sue for damages based on emotional distress caused when he learned of a particularly vile demonstration conducted near his son’s funeral ceremony.

A crucial fact is that the Marine’s father, Albert Snyder, learned of the demonstration only after the event, from a TV news report and from seeing its messages on the demonstrators’ website.

Police on the scene kept the picketers hundreds of feet away — far enough from the graveside rites that they were neither seen nor heard by the mourners at the time. Thus from the standpoint of those mourners, the protests were not so much “at” the funeral as about it. Had the picketers been in the mourners’ faces, and especially had they been intrusively audible at the graveside, police might well have arrested them for disturbing the peace, without regard to what they were saying, and there would have been no First Amendment issue.

So here the question comes down to whether the expression of a religious doctrine — for example in this case, that God abominates homosexuals and punishes the United States for tolerating them by sending its troops to their death — may single out a particular military death as an example.

May one’s private, painful loss be made an occasion for someone else’s public rejoicing that God’s will has been fulfilled? Or may it be made an occasion for someone else’s public commentary of any kind — including political commentary?

I mention this wider proposition because it is directly implicated in a new California law that may well be the subject of yet a fourth kind of First Amendment litigation.

A bill, AB 585, originally introduced by former Assemblyman Michael Duvall and signed into law last May, gives the survivors of those whose deaths take on some special public significance because of the circumstances of their death the right to go to court and either block the use of that name in connection with an item in commerce, or to demand all or a share of the profits thereof.

The incident prompting the bill was the sale of T-shirts showing several names of service members killed in Iraq in the background, superimposed by the words BUSH LIED — THEY DIED. The rationale is that if the deceased service member’s death in a war is given a political significance that can contribute to a statement that can be marketed for money, the survivors are entitled to either forbid the marketing or profit from it.

But the name of a fallen member of the military is almost always of no significant commercial value in and of itself. The person is almost never a celebrity in the public eye at the time of his or her death, and the death almost never creates that celebrity.

So amending the law meant to give celebrities’ families the right to control how their late loved one’s name, image or voice is used in hawking products, and expanding that law to apply to those whose deaths are simply referred to as consequences of a political wrong, is a way of stifling criticism of war simply because it identifies a real, particular, personal loss as what flows from a perceived evil.

This law should be held to violate the First Amendment.

Terry Francke is Voice of OC’s open government consultant and general counsel for Californians Aware. You can reach him directly at And add your voice with a letter to the editor.


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