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Military expression is an area ofmilitary law pertaining to theUnited States military that relates to thefree speech rights of its service members.[1] While "military free speech" was the term used during theVietnam War era, "military expression" has become a niche area ofmilitary law since 2001.[2][failed verification] Besides media references relating to specific cases, the term was used at militarywhistleblower committee hearings with members of theUnited States House of Representatives and Senate on May 14, 2008. Transcripts of the hearings show that attorneyMike Lebowitz was identified as testifying as a legal expert in "military expression".[3][full citation needed] That hearing also included references by U.S. RepresentativeSheila Jackson Lee (D-TX) who also referred to the area of law as "military expression".[further explanation needed]
While the civilian population of the United States is afforded the right to free expression under theFirst Amendment, theU.S. Supreme Court has affirmed the notion that service members have a reduced level of free speech.[4] While the Court acknowledged that service members do have First Amendment rights, these rights are limited:
The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.[5]
With the advent of theIraq War in 2003, the issue of military expression was again in the public eye as a relatively small number of service members and veterans began demonstrating. One case revolved around a former Marine (still under contract with theIRR) who was photographed by theWashington Post wearing a partial uniform during an anti-war demonstration inWashington, D.C.[6] The individual faced disciplinary action for his participation in this demonstration, as well as for a politically charged email he sent to a Marine officer.[7][full citation needed] However, in this case, the service member avoided the other than honorable discharge being sought by the military due to the First Amendment arguments posed on his behalf.[6] That case, which was argued by attorneyMike Lebowitz in representation of anti-war and political activistAdam Kokesh, is regarded as the first military expression case of its kind to result generally favorably for the service member.[8]
Political speech, to include being active in a political party, also has become an issue as the Internet and email permits easier participation despite rules against such activity.[9][citation needed]