On Wednesday, the Court of Appeals for the Armed Forces ruled that charges should not have been brought against Pfc. Jeremy T. Wilcox on account of his racist internet profile or the support for White supremacy he expressed to an online undercover agent.
The majority in the 4-1 decision reportedly found that Wilcox's "disturbing" beliefs and statements violated DoD policy, but did not impact his military performance or working relationship with other soldiers.
The case isn't up on Westlaw yet so I'm working off of press coverage here, but Im struck by a couple of points. US soldiers don't have the same First Amendment rights as civilians and can be disciplined for expressive speech, conduct or associations that interfere with military objectives in a way ordinary folks could not. Here's the DoD policy on extremist groups:
Military personnel must reject participation in organizations that espouse supremacist causes; attempt to create illegal discrimination based on race, creed, color, sex, religion, or national origin; advocate the use of force or violence; or otherwise engage in efforts to deprive individuals of their civil rights. Active participation, such as publicly demonstrating or rallying, fund raising, recruiting and training members, organizing or leading such organizations, or otherwise engaging in activities in relation to such organizations or in furtherance of the objectives of such organizations that are viewed by command to be detrimental to the good order, discipline, or mission accomplishment of the unit, is incompatible with Military Service, and is, therefore, prohibited.
News reports don't specify, but prior proceedings make it appear that this is the directive Wilcox violated.
Leaving aside whether this "viewed by the command" standard allows any meaningful review, the very decision to bring charges means the command considered Wilcox's behavior detrimental to good order, discipline or military objectives, most likely because it cast the military in such a bad light publicly. And if his behavior did violate DoD policy, as the majority reportedly said it did, why does it matter that it did not impact his working relationships or performance? Measuring the degree of actual or potential disruption to operations is part of the inquiry in your run of the mill workplace free speech case (and even there great deference is given to the employer's judgment), but its surprising that a military court drawn from military officers wouldn't give more deference on that point to the judgment of commanders on the ground. Again, relying on the press reports, the majority said that Wilcox believed he was speaking to a friend of like mind, not a fellow soldier. But I'm not so sure why that matters when he identified himself as "US Army Paratrooper" to anyone on the internet with access to his posts or profile.
In advance of the opinion's release, perhaps there's a military expert out there willing to shed some light on the case . . . or provide an advance copy?
-Kathleen A. Bergin
disclaimer: the post is not an endorsement of existing military speech restrictions but simply thoughts on the case as its been reported in light of existing rules and regulations.