Is there free speech in the military?

Is there free speech in

By NATHAN LEWIN
October 27, 2009 21:11
3 minute read.

Three days after two IDF soldiers displayed a poster objecting to the evacuation of a settlement during an induction ceremony at the Western Wall, they were tried and sentenced to 20 days' imprisonment and ejected from their unit. The commander of the division into which the soldiers were inducted - who convicted them with stunning speed - seems totally unaware of a basic freedom that the Supreme Court has championed, largely in reliance on precedents of American constitutional law. The US Supreme Court declared more than 35 years ago (and has repeated several times since) that members of the American military are entitled to the freedom of speech guaranteed by the First Amendment to the Constitution. Several cases arose during America's venture in Vietnam that forced the courts to define the parameters of this constitutional right. American judges and military commanders recognized that military personnel were free to oppose governmental policies, and permitted free-speech rights to be abridged only if the speech actually impeded military efficiency or violated specific military regulations. UNDER STANDARDS applied in the American reported cases, the brief public expression of the two IDF recruits during an induction ceremony would have been constitutionally protected. In fact, the reported American judicial opinions show that military commanders allowed soldiers to engage in much more extended and disruptive activity opposing US policy in Vietnam than the recruits' fleeting display of a critical poster. In one case that ultimately made its way to a federal court of appeals in New York, a draftee came to his induction ceremony with a bag full of handbills opposing US involvement in Vietnam. He was permitted to distribute the handbills to other inductees and was arrested and prosecuted only after he explicitly refused to obey orders not to interfere with the induction process. The court of appeals approved suppression of his speech at the induction center only to the extent "required by the exigencies of the induction process." Another case decided by a federal appeals court in California concerned an inductee who, at the center where he was being inducted, solicited signatures on a handwritten petition stating: "We petition the army not to draft us so that we will not be forced to fight a brutal and unnecessary war in Vietnam." He was allowed to continue this activity so long as it did not disrupt the induction of others. Only when his activity became "so distracting that the induction process had come to a halt" and he engaged in a scuffle with supervisors and refused to leave the induction center was he arrested and prosecuted for refusing to submit to induction. The court of appeals observed that the California inductee was "not prevented from engaging in orderly speech nor orderly registration of opposition or grievance." His right to free speech could constitutionally be suppressed only when he interfered with the "orderly process of induction." The US Supreme Court has, in a famous decision written by Justice John Harlan - a highly respected conservative jurist - upheld the constitutional right to display publicly an outrageous public declaration such as "F-ck the Draft." Harlan ruled that the distasteful words were designed to convey a message to the public and were, therefore, constitutionally protected as free speech. And Justice Antonin Scalia - the most articulate representative of the Supreme Court's right-wing bloc - has joined majority opinions that held that burning the US flag was "expressive conduct" within the scope of constitutionally protected speech. THE BANNER displayed by the two IDF inductees comes well within this constitutionally protected realm. The banner was plainly designed to express the recruits' views to the public that was observing the public swearing-in ceremony. Its momentary display did not, according to reports of the event, obstruct the swearing-in of the Shimshon Battalion at the Western Wall. Nor, from all that appears, did it violate a published regulation applicable to speech in the military, or disobey any order of a commanding officer. Although Israel has no written constitution, freedom of speech has been viewed by the Supreme Court as a basic right since a landmark 1953 decision, and the court has repeatedly relied upon American precedents. The IDF recruits will doubtless survive their 20-day jail terms. The only enduring victim of this episode will be Israel's basic-freedom guarantee for public speech. The writer is a Washington lawyer who has argued 27 cases in the US Supreme Court, including the case of an air force psychologist who claimed the constitutional right to wear a yarmulke in a military hospital.


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