Note: Dissent Without Disloyalty: Expanding the Free Speech Rights of Military Members Under the “General Articles” of the UCMJ

By Jason Steck. Full text here.

Under Articles 133 and 134 of the UCMJ, military members enjoy far narrower free speech protections than civilian government employees. Even as courts have placed limits on the ability of the government to limit civilian employee speech under Pickering v. Board of Education, they have refused to limit the military’s restrictions on its members’ speech. Instead, courts have deferred to the military in light of the perceived exigencies of a uniquely military culture. The Note criticizes the foundations of this assumption, arguing that the unique military culture that underlies restrictions on military members’ free speech rights probably never existed and certainly does not exist in the post-Vietnam era. Most military members perform jobs and live lives that are functionally and culturally similar to civilian counterparts. Thus, it is appropriate to regulate military members’ speech rights in a manner similar to the Pickering framework. Nonetheless, the Note argues for modifications of the Pickering framework to accommodate specific military operational requirements, such as overseas deployments.