Political expression : a comparison and contrast of military and civilian standards for freedom of speech



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The design of this study allowed either support or rejection of the hypothesis that political expression is more rigidly proscribed by military than by civilian courts because military judges generally hold less intense and less salient attitudes toward freedom of expression than do civilian judges. The methodology employed consisted of several steps- (l) the isolation and examination of military and civilian appellate court cases dealing with political expression, (2) the extraction of tests and standards employed by the judges to provide for consistent decision-making in these cases, (3) the synthesis of judicial philosophies from which these tests and standards were formulated by judges, (4) the rank-ordering of philosophical positions within each system (civilian and military) on the basis of frequency of use and endurance of application, and (5) the comparison and contrast of these military and civilian hierarchical structures on the basis of which structure placed the least severe limitations upon political expression. All military appellate court decisions were studied; most Supreme Court decisions and the most important federal appellate court decisions (as determined by legal philosophers and based upon relevancy to the development of tests and standards) were considered. The construction of this study proceeded from the outset with the recognition that certain statutory restrictions upon political expression existing in military law were inapplicable to civilians; however, the extension of First Amendment protections to servicemen implied that these restrictions were open to objection as infringements upon the constitutional guarantee of free speech. The opinions of the justices, then, offer a strong foundation for comparison of the hierarchies of socio-legal values adopted by the two court systems. Support for the hypothesis of this study resulted from the following conclusions- 1. Military appellate courts invariably decide issues involving political expression by the philosophy of military necessity. The appellant must demonstrate to the satisfaction of the court that the restriction in general--or its particular application--was unnecessary to secure such aims as discipline, morale, and combat effectiveness. On the other hand, civilian appellate courts demand that the appellant show that the law is unconstitutional and, in so doing, presume the constitutionality of a statute. 2. Military courts, in their zeal to protect what is necessary for military effectiveness, have in a majority of cases employed tests and standards which -are unrelated to the preservation of constitutional guarantees. The application of these tests and standards demonstrates that the deep-felt need by the civilian judges- to protect First Amendment rights is not shared by military judges. 3. The relationship between the lack of concern for First Amendment rights and the employment of tests and standards which do not provide for stringent protection-of those rights is causal and characteristic of military appellate judges. Because a judge must consistently weigh and choose between competing socio-legal values, he constructs a hierarchy of philosophies by the process of decision-making. Military judges generally place freedom of expression below the needs of the military in cases involving competition between these two values. Because no such competing interest exists in civilian courts generally, political expression is more rigidly proscribed by military than by civilian judges.