Do military personnel such as Marine Lieutenant Colonel Stuart Scheller have the right under the First Amendment to criticize their government—like all U.S. citizens?1
Postmortem Criticism
In U.S. history, there have been numerous opportunities for openly contemptuous discussions by military personnel against their civilian heads. Following the Bay of Pigs debacle, for example, General Lyman Lemnitzer, who in 1961 was Chairman of the Joint Chiefs of Staff (JCS), said in a 1976 interview as a retiree:
that the new civilian hierarchy was crippled not only by inexperience but also by arrogance. . . . The problem was simply that civilians frequently ignored the military. Thus, without consulting the JCS, they changed the concept from a covert landing to a conventional amphibious assault, switched the landing site from Trinidad to Zapata, cancelled the D-Day air strike—and then blamed the Chiefs because matters went badly.2
It is well known that the Joint Chiefs were concerned that civilian leaders’ response to this and other contemporary crises precipitated an apparent “erosion of U.S. credibility that emboldened Communist leaders to pursue more adventurous policies.”3 Nevertheless, President John F. Kennedy was impressed that the JCS at the time did not publicly rebut White House staffers, who leaked anti-JCS stories to Newsweek magazine.
Role of the Military in a Democratic Society
The Founding Fathers were concerned about a military exerting inordinate influence on the new country, so in Article II, Section 2, of the Constitution, they provided for a civilian Commander-in-Chief, namely, the President of the United States. A civilian Congress was charged in Article I, Section 8, with appropriating funds for a military, which meant it would control how the U.S. military was organized, trained, equipped, and employed. In addition, the Constitution decreed that Congress had the power “to make Rules for the Government and Regulation of the land and naval Forces.”
Recognizing the role of the military under civilian control, the following must be true for the U.S. democratic system to continue to work:
• First, the rule of law must be followed by the military. To supplement the Uniform Code of Military Justice, the Department of Defense has issued DoD Directive 1344.10, “Political Activities by Members of the Armed Forces.”
This directive provides guidance regarding political activities of active-duty service members. Section 4.1.2.6 states: “A member of the Armed Forces on active duty shall not participate in any radio, television, or other program or group discussion as an advocate for or against a partisan policy, candidate, or cause.” It goes on to say in section 4.1.3, “Commissioned officers shall not use contemptuous words as prohibited by 10 USC 888: Article 88,” which reads, “Any commissioned officer who uses 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 shall be punished as a court-martial may direct.”
• Second, the military must be accountable to the public as it has advocated through its elected representatives. The military cannot break with what elected representatives have dictated (whether desegregating the armed forces, renaming forts and ships honoring Confederate heroes, allowing women to serve in combat, or any other directive that public representatives have legally approved, including legal orders from the Commander-in-Chief). Instead, it must close ranks and follow orders through the chain of command.
• Third, the military in a democratic society must be apolitical and neutral.
Lieutenant Colonel Scheller disagreed with the Afghanistan withdrawal strategy. But expressing that disagreement using contemptuous words against senior leaders on a social media platform while in uniform is forbidden. Lieutenant Colonel Scheller crossed the line.
Democracy in the Balance
In a democratic society, the bottom line for the military is to defend the society against all enemies domestic and foreign, not to define the society.4 It is the role of the public through public forums, free and open discussion, and the ballot box to determine what that society is to be—for example, extending rights to citizens of color, women, and other previously disenfranchised people. Even the direction of U.S. foreign policy has changed from time to time, from isolationism to intervention.
The citizen soldier, sailor, airman, and Marine—who have given up certain rights (including certain rights to free speech while on active duty in uniform)—ensure this legacy of freedom and the inalienable rights of U.S. citizens endure. The future of American democracy continues to rest in the balance of defending society versus defining it.
1. See CAPT Thomas R. Beall, USN (Ret.), “Morality, Duty, and Military Ethics: The Case of Lieutenant Colonel Scheller,” U.S. Naval Institute Proceedings 147, no. 12 (December 2021).
2. Interview with Walter S. Poole, 12 February 1976, quoted in Walter S. Poole, History of the Joint Chiefs of Staff, The Joint Chiefs of Staff and National Policy, vol. 8, 1961–1964 (Washington, DC: History Office of the Joint Chiefs of Staff, 2011), 119.
3. Poole, History of the Joint Chiefs of Staff, ix.
4. Richard H. Kohn, “An Essay on Civilian Control of the Military,” American Diplomacy, March 1997.
