FREE SPEECH CAN BE EXPENSIVE
July, 2010

Someone gave me a little gray book of poetry when I was about 9 years old. One of my favorite poems from the book was entitled, “Three Gates.” Beth Day wrote the poem in the 1800’s. It encourages us to consider three “gates of gold” through which a tale must pass before it is retold: Is it true? Is it kind? And, is it necessary? For some reason, I thought at the time that it was excellent advice and I memorized the poem hoping that I’d never forget it.

I thought about that poem when I learned that President Obama had relieved General McChrystal of his post in Afghanistan. The incident raised many questions. First, what exactly did the General say? Having combed through the article in the Rolling Stone magazine, I found that he accused Vice President Biden of being “shortsighted.” He then criticized Ambassador Eikenberry for “covering his flanks for the history books.” Finally, he stated that he found the three month delay in getting authorization for more troops to be “painful.” The General’s aides claim that he made other inflammatory comments including the infamous “wimps in the White House” remark, but surely the General isn’t being hung out to dry over what a reporter heard someone say that the General said.

Another question that came up was whether making these comments was illegal and, if so, whether muzzling such statements is unconstitutional. Trying to find the answer to those questions led me to the discovery of Article 88 of the Uniform Code of Military Justice. That law prohibits “any commissioned officer” from using “contemptuous words” against various public officials, including the President and the Vice President. (For some reason, the lawmakers also extended special protection to the Secretary of Transportation as well. I have no idea how that came about, unless he or she is the person responsible for the horrendous traffic in Washington D.C.).

Our Supreme Court has issued numerous rulings upholding laws that restrict the constitutional rights of those in the military, including the right of freedom of expression. One such case was Parker v. Levy (1976). The defendant in Parker was an Army physician who publicly urged African American men to disobey orders to go to Viet Nam. He also referred to members of the Special Forces as “liars and thieves” and “murderers of women and children.” The military court-martialed the defendant for his actions and comments.

On appeal, the Supreme Court noted that “the military is, by necessity, a specialized society separate from civilian society . . . [T]he military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. “

The Court then noted that there were valid reasons for refusing to grant First Amendment protections to those serving in the military. It quoted part of an opinion from the U.S. Court of Military Appeals saying:

“Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities . . . In military life, however, other considerations must be weighed. 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.”

These statutes and cases make it clear that it is not appropriate for a General to verbally attack his Commander in Chief. Yet, many questions remain. Why did the General make the comments to a reporter? Why did his staff feel free to make even more egregious comments on the record? What reaction did the General expect from Washington when the comments hit the press?

Most likely, General McChrystal is no longer in the mood to do much talking to the press and we will never know the answers to those questions. But it is tragic that his comments wrecked an otherwise stellar career. It is indeed ironic that he was punished, in part, for his comments about Joe Biden, who is known by some as a “verbal wrecking crew.”

So, I think again about that poem – and realize that I probably shouldn’t have said that about Joe Biden.