4 ms·

I've been in the military. As far as I know, the order was unlawful because the First Amendment still applies to members of the military. They cannot tell him

I've been in the military. As far as I know, the order was unlawful because the First Amendment still applies to members of the military. They cannot tell him to stop using his right to free speech "without exception".

doomrobo 5y ago
Really? I was under the impression that public political speech which is critical against of supervisor (ie the entire executive branch of the govt) while on active duty can be considered insubordination. Is that wrong?
- ghoward 5y ago
  It is wrong, yes, as far as I know. Otherwise, members of the military would effectively not be citizens. Otherwise, they couldn't run for office (which they are allowed to, but in order to take office, they have to resign). Otherwise, they would have no say on how the country is run because they couldn't even petition Congress to pass laws against actions by superiors. They couldn't petition the courts for relief when a superior did something wrong. Say a superior sexually assaulted a subordinate. If what you said was true, that subordinate could never tell anybody. That's absurd. And when I was in, we were allowed to be critical of superiors as long as we obeyed every lawful order.
- dragonwriter 5y ago
  > I was under the impression that public political speech which is critical against of supervisor (ie the entire executive branch of the govt) while on active duty can be considered insubordination. Is that wrong? That's not exactly true, and even to the extent that it relates to real offenses, I think the upthread commenter would be correct that an order to not post to social media “without exception” (barring, e.g., a special mission where that is a bona fide security requirement) is probably an illegal order. Of course, to the extent that his conduct using social media before or after is insubordinate, disrespectful toward military superiors or civilian officials, seditious, unbecoming of an officer and gentleman, or prejudicial to good order and discipline, that conduct may still be a UCMJ violation notwithstanding the invalidity of the overbroad order.
tibbydudeza 5y ago
Article 88 and 134 is pretty clear there are limits.
- ghoward 5y ago
  Sure, but "without exception" is definitely overbroad. The fact that they define limits, in fact, means he still had the right because the limits would not need to be defined if the right did not exist for him.
  - dragonwriter 5y ago
    > Sure, but "without exception" is definitely overbroad Probably, but that only really is going to matter if and to the extent he is charged with disobeying an order, which I suspect won't be the only charge.
    - ghoward 5y ago
      What other charges do you think would stick?
      - dragonwriter 5y ago
        Before looking at the actual charges, and from the descriptions without actuslly viewing the material, I would have said: Art. 88 (Contempt for officials),, Art. 89 (Disrespect for superior commissioned officer), Art. 133 (Conduct unbecoming), and maybe Art. 134 (Conduct prejudicial to good order and discipline), though for the last the preemption doctrine would apply to any conduct that actually fell into the coverage of the other articles. The actual charges that have been announced are being considered (which weren’t included when the article was first posted) include Art. 88 and 133, as well as two different disobeying-a-lawful-order offenses (Art. 90 and 92.)
        ghoward 5y ago
        Knowing the military, they'll make those stick. We can disagree about whether he is guilty of them, or should be punished (I don't think so, considering he is critical of mistakes that lost American lives), but yeah, the military will probably make them stick. That's one reason I left before I incurred an obligation. So glad I did because I do not have to follow orders that I disagree with. Edit: Upvoted your comment because, well, you are correct.
oyashirochama 5y ago
Most of that only applies when out of uniform, if you represent the US Military, different rules apply.
JoeyBananas 5y ago
I don't know anything about military law and what rights service members have, but going on camera in uniform and talking about politics is definitely a big no-no. All service members in the U.S. are supposed to get any appearances on video cleared by going through public relations.

doomrobo 5y ago

Really? I was under the impression that public political speech which is critical against of supervisor (ie the entire executive branch of the govt) while on active duty can be considered insubordination. Is that wrong?

ghoward 5y ago
It is wrong, yes, as far as I know. Otherwise, members of the military would effectively not be citizens. Otherwise, they couldn't run for office (which they are allowed to, but in order to take office, they have to resign). Otherwise, they would have no say on how the country is run because they couldn't even petition Congress to pass laws against actions by superiors. They couldn't petition the courts for relief when a superior did something wrong. Say a superior sexually assaulted a subordinate. If what you said was true, that subordinate could never tell anybody. That's absurd. And when I was in, we were allowed to be critical of superiors as long as we obeyed every lawful order.
dragonwriter 5y ago
> I was under the impression that public political speech which is critical against of supervisor (ie the entire executive branch of the govt) while on active duty can be considered insubordination. Is that wrong? That's not exactly true, and even to the extent that it relates to real offenses, I think the upthread commenter would be correct that an order to not post to social media “without exception” (barring, e.g., a special mission where that is a bona fide security requirement) is probably an illegal order. Of course, to the extent that his conduct using social media before or after is insubordinate, disrespectful toward military superiors or civilian officials, seditious, unbecoming of an officer and gentleman, or prejudicial to good order and discipline, that conduct may still be a UCMJ violation notwithstanding the invalidity of the overbroad order.

tibbydudeza 5y ago

Article 88 and 134 is pretty clear there are limits.

ghoward 5y ago
Sure, but "without exception" is definitely overbroad. The fact that they define limits, in fact, means he still had the right because the limits would not need to be defined if the right did not exist for him.
- dragonwriter 5y ago
  > Sure, but "without exception" is definitely overbroad Probably, but that only really is going to matter if and to the extent he is charged with disobeying an order, which I suspect won't be the only charge.
  - ghoward 5y ago
    What other charges do you think would stick?
    - dragonwriter 5y ago
      Before looking at the actual charges, and from the descriptions without actuslly viewing the material, I would have said: Art. 88 (Contempt for officials),, Art. 89 (Disrespect for superior commissioned officer), Art. 133 (Conduct unbecoming), and maybe Art. 134 (Conduct prejudicial to good order and discipline), though for the last the preemption doctrine would apply to any conduct that actually fell into the coverage of the other articles. The actual charges that have been announced are being considered (which weren’t included when the article was first posted) include Art. 88 and 133, as well as two different disobeying-a-lawful-order offenses (Art. 90 and 92.)
      - ghoward 5y ago
        Knowing the military, they'll make those stick. We can disagree about whether he is guilty of them, or should be punished (I don't think so, considering he is critical of mistakes that lost American lives), but yeah, the military will probably make them stick. That's one reason I left before I incurred an obligation. So glad I did because I do not have to follow orders that I disagree with. Edit: Upvoted your comment because, well, you are correct.

oyashirochama 5y ago

Most of that only applies when out of uniform, if you represent the US Military, different rules apply.

JoeyBananas 5y ago

I don't know anything about military law and what rights service members have, but going on camera in uniform and talking about politics is definitely a big no-no. All service members in the U.S. are supposed to get any appearances on video cleared by going through public relations.