Military Members: A Silent Protest?
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Military Members: A Silent Protest?

Brownstein Client Alert, June 24, 2020

Recent national events have created a potentially confusing situation for members of the United States military. There is no confusion that soldiers, sailors and airmen are afforded the same constitutional rights as their fellow citizens (including freedom of speech protected by the First Amendment). However, it becomes a bit murkier as to whether a service member’s freedom of speech is unfettered. It also could be more nuanced if the military member is part of the reserves or National Guard and does not consider him/herself to be “in status” when participating in such activity.

As a rule, the military must remain politically neutral and devoid of any political activity that may appear to favor certain political parties or ideals. The following are some reminders and guidelines to assist military members to better understand what they are permitted to say and do versus what could get them into trouble.

First, every member should become familiar with his/her branch’s standards of conduct. Many times, those instructions can be illustrative and answer an individual’s questions. Second, without prior approval from the military, no military member is permitted to be in uniform while furthering political causes or participating in certain unsanctioned activities, including but not limited to, speeches, interviews, marches, rallies or protests. This helps avoid any implication that the military has sanctioned the underlying cause. Again, unless prior approval is received or the individual is attending an event sanctioned by the military, members of the military must maintain political neutrality while in uniform.

While off duty, military members who are not in uniform are permitted to attend peaceful protest events. Members of the military are also free to sign petitions and wear clothing and display signs showing messages of solidarity and peaceful protest. However, members of the military should cease participation in any event where there is a threat of personal injury, illegal activity, property damage or confrontation with police or the National Guard.

And, to the extent that a service member elects to author an article or op-ed piece, he or she should omit a military rank in the “byline” and include a non-attribution clause that reminds the reader the views are those of the author and may not be the views of the military or the Department of Defense.

Should any member of the U.S. military have questions regarding the intersection of their constitutional rights and their duties and responsibilities as service members, they should consult their JAG, military defense counsel or an attorney specializing in military law.

This document is intended to provide you with general information regarding free speech protections for service members. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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