NEWS | June 23, 2020

Expressing Yourself in the Military Environment: Advice and Counsel for the USFK Community

By Colonel Tideman Penland, U.S. Army, USFK Judge Advocate

 
Our American Family is going through a great moment of turmoil, the likes of which we have not seen in decades.  Tragic incidents involving the exercise of government authority have highlighted - yet again - the scourge of racism in our country.  We must ask important and urgent questions:  What kind of society are we?  Can't we be better?  And, we must listen.
 
Despite our geographic distance from the United States, we in the USFK Community must take part in this discussion; moreover, our technological and social media proximity to family and friends in the U.S. accelerates our ability to participate.
 
USFK values its people – civilian and military, employee and dependent, U.S. and Korean. We find great strength in our diversity and we get better as we work together.  To that end, USFK leadership wants to provide the community with a space where these conversations can be held locally and globally.  We also rely upon good order and discipline in order to maintain readiness to “Fight Tonight."  There is room for servicemembers, civilians, and dependents to express themselves appropriately, and there are some boundaries that do not exist in the civilian community.
 
Overlying all of this is a recognition that we Americans share the right to free speech, the right to peacefully assemble, and the right to petition government to redress our grievances.  It is no coincidence that these rights appear in the very First Amendment to our Constitution.  However, First Amendment rights are not absolute; the government may regulate our exercise of those rights in time, place, and manner.  Moreover, for Americans affiliated with the Armed Forces, there are further restrictions related to military necessity and good order and discipline.  The following may help USFK personnel understand those boundaries.  This is not intended as a substitute for legal advice or other guidance you may receive from your local commands.  If you have any questions, please talk to your chain of command or supporting legal office.
 
There are several broad categories which regulate the extent to which a member of the Armed Forces may exercise the right to free speech.
 
First, commissioned officers are prohibited under Article 88 of the Uniform Code of Military Justice (UCMJ) from “using contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth or possession in which he is on duty or present.”  There is a difference between contemptuous language, which focuses on the person holding the office, and adverse criticism, which focuses on the decisions they make.  Such criticism may also be, as the Manual for Courts-Martial describes it, “emphatically expressed.” 
           
Second, servicemembers are also prohibited under Article 92, UCMJ from violating or failing to obey a general order or regulation; or, having knowledge of any other lawful order issued by a member of the armed forces for which it is a duty to obey, failing to obey the order; or, being derelict in their duty.  As noted below, there are DoD, Service, and USFK regulations, the violation of which could subject a servicemember to criminal prosecution under Article 92.  While this guidance mentions some of these regulations, others may also apply.  It is the duty of all servicemembers to understand the rules – the chain of command can help.
 
Third, servicemembers have some limitations on partisan political activities under DoD Directive (DoDD) 1344.10, Political Activities of the Armed Forces.  Similar to "Hatch Act" provisions for civilian employees, this regulation prohibits active duty servicemembers, members of the Reserve components and National Guard, and retirees from certain political activities.  To briefly summarize, servicemembers may not engage in political activities in uniform or act in any manner which would reasonably create the inference or appearance of official sponsorship, approval, or endorsement of a candidate, incumbent, or election campaign.
 
Commanders and leaders should read and understand this DoD policy, but not interpret it too broadly.  Its definition of political activity is quite narrow.  Fundamentally, political activity involves a particular candidate or incumbent seeking election, or partisan causes.   Speaking or acting against racial discrimination is not a political activity - it knows no particular candidate, incumbent, election campaign, or party. 
 
Fourth, DoD Instruction (DoDI) 1325.06, Handling Dissident and Protest Activities Among Members of the Armed Forces, restricts servicemembers from the following activities:
 
- pursuing personal writing activities such as blog/social media posting or emailing during duty hours or using Government computer resources to do so, unless as part of official duties;
 
- participating in any off-post demonstrations while on-duty, in a foreign country, where it would constitute a breach of law and order, or where violence is likely to result.  They can never attend an off-post demonstration in uniform;
 
- actively advocating supremacist, extremist, or criminal gang doctrine, ideology, or causes.
 
The Services have implemented similar regulations under their authorities which may also regulate similar conduct (such as Army Regulation 600-20, AFI 51-903, MCO 5370.4B, or OPNAVIST 1620.1B).
 
For civilians, the rules are not much different.  Civilian employees are restricted from certain partisan political activities under the Hatch Act, although most civilian employees may publically support and endorse political parties or candidates.
 
With all this in mind, here are some common questions; the answers may help the USFK community understand our left and right limits.
 
1. Can I go on Facebook or Twitter and make a statement (including “liking” or forwarding a post) regarding current issue, such as Black Lives Matter or urging a government take official action against someone who has committed a race-based crime?
 
Yes.  However, servicemembers should avoid publishing anything which could reasonably be viewed as soliciting votes for or against a partisan political party, candidate, or cause.
 
2. A group of friends wants to hold a memorial event for someone killed by police in the United States?  May we do so on a USFK installation? 
 
It depends.  Generally speaking, military installations are not public forums, so the use of those facilities for non-military purposes may be subject to an installation commander's approval.  This includes areas such as the PX/Commissary grounds, a park, or a field.  For tenant facilities, such as a DODEA school field or building, the tenant agency's approval may also be necessary.  These activities are subject to reasonable time, place, or manner conditions established by the approving commander.  The types of protests, demonstrations, and similar activity that an installation commander must prohibit is actually quite limited; these limited circumstances are described in DoDI 1325.06.
 
Servicemembers should also note that DoD policies related to the wear of the uniform allow for the wear of the uniform at command-sponsored public demonstrations or rallies. Servicemembers can wear the uniform at other public demonstrations or rallies with the permission of the Commander, USFK.
 
3. Our local garrison turned down our request to hold an event, so we want to privately organize a protest or demonstration off-post, either at a local public park or just outside the installation gates.  May we do so?
 
Servicemembers are prohibited by DoD policy from participating in off-post demonstrations in foreign countries.  Civilians may seek approval from the Commander, USFK under command policy.
 
4. The Koreans are holding a demonstration in front of the U.S. Embassy in Seoul on a topic that I am very interested in and in which I want my voice heard.  Can I attend?
 
Under the same rules as Question 3, servicemembers may not attend off-post demonstrations.  Civilians must seek Commander, USFK approval.
 
5. I am very upset with the way police departments in the U.S. behave and their authorities to detain or otherwise interact with the public in a violent way.  I want to voice my opinion through several measures.  First, I want to support a political candidate who advocates for police reform.  Second, I want to donate money to an organization which doesn’t support any particular candidate, but which wants work with state legislatures to implement police reform.  Third, I want post and share messages on Facebook, Twitter, and Instagram supporting police reform and pro-reform candidates.  Can I?
 
Yes and no.  For servicemembers, you may not publicly publish information that encourages votes for or otherwise publicly promotes a partisan political candidate, campaign or cause.  However, you may donate to a candidate (without encouraging others to do the same).  You can donate funds to any non-partisan group which supports your issue, as long as that group is promoting issues not identified with a particular political party or candidate. Finally, you can post non-partisan messages and criticize or support decisions made by government officials.  You can voice support for national groups or movements which are not identified with particular political parties or candidates. You just may not “like” or share/retweet campaign website information or solicit others to vote for a particular candidate.
 
Most civilian employees have less restrictions.  While they cannot solicit donations for political parties or candidates, they can publically solicit votes and support for particular parties or candidates.  They can also post partisan messages and like/share/retweet information related to political parties or candidates.  The only exception is employees who are in the Senior Executive Service or who are members of the intelligence community or J2 staff.  Their restrictions are very similar to those of servicemembers and they should seek further guidance before engaging in support for matters of public interest.
 
There are no similar restrictions for other civilians, such as dependents.
 
* * * * * *
 
One final note for all military personnel: before you engage in a public activity where you want to voice your opinion or exercise your First Amendment rights, ask yourself a fundamental question:  Will my words or actions bring discredit to the Armed Forces or be prejudicial to good order and discipline?  We can say and do many things without crossing this line; but, no matter how right the cause, it is a line we may not cross.
 
For all USFK personnel, if you have any questions about whether a proposed activity crosses any particular line of prohibition, we strongly encourage you to talk with your chain of command, supervisors, sponsors, or local legal office. If they do not know the answer, they will find it.
 
For all commanders and supervisors, remember that, except under very limited circumstances, servicemembers and civilian employees are free to speak their minds about issues of local and national importance.  They are also free to criticize, be angry, and use language that you might not personally like.  Your role in this challenging time is to listen, guide them positively, and help them express themselves in a way that helps begin to heal and increases our readiness to “Fight Tonight.”