Free speech: Social media, military service Published May 31, 2011 By Master Sgt. Kelley J. Stewart 52nd Fighter Wing Public Affairs SPANGDAHLEM AIR BASE, Germany -- The First Amendment to the U.S. Constitution of the United States says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances." In a nutshell, this is the Amendment that grants free speech. However, there are legal restrictions on this freedom. Legal precedent has established certain categories of speech not protected by the First Amendment. These categories are obscenity, fighting words and dangerous speech. Fighting words are words that inflict injury or incite an immediate breach of peace, and dangerous speech is any speech that presents a clear and present danger. Things are little bit different for service members. United States v. Hartwig in 1994 and United States v. Priest in 1972, established that the test in the military is whether the speech interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to the loyalty, discipline, mission or morale of the troops. "When we put on the uniform, we have less freedom of speech and less freedom in a lot of ways," said Capt. John Roach, 52nd Fighter Wing Legal Office chief of international and operations law. "A lot of it ties into military discipline. The nature of our business, or profession, is discipline. If discipline breaks down anywhere, the mission doesn't get done." Any written or spoken words that present a clear danger to the loyalty, discipline, mission or morale can be punished. The seriousness of the offense determines the seriousness of the punishment. But what does this have to do with social media? Comments posted on social media with regards to NCOs or superior commissioned officers that are disrespectful could be punished under the Uniform Code of Military Justice whether the person uses the victim's name or not. Article 91 of the UCMJ covers insubordinate conduct towards warrant officer, NCO or Petty Officer, while Article 89 covers disrespect toward a superior commissioned officer. If a service member posts a comment to their favorite social media site that can be deemed as treating with contempt or being disrespectful in language or deportment toward a warrant, non-commissioned officer or petty officer could be punished under Article 91. Article 90 of the UCMJ covers disrespect toward a superior commissioned officer. Article 134, the general article, covers all disorders and neglects to the prejudice of good order and discipline in the armed forces and all conduct of a nature that brings discredit upon the armed forces. As with any offense that violates the UCMJ, command action can include no action, administrative action, non-judicial punishment or court-martial. The nature and seriousness of the offense will aid in determining the appropriate command action. Civil law can also be violated depending on what is posted to social media sites. If a person posts a comment about a supervisor, friend, commander, boyfriend, girlfriend, etc. on social media that is derogatory in nature and untrue, the person posting the comment could be taken to civil court and sued for libel. Especially if the comment posted is untrue. According to the BBC, a Caerphilly county councilor in Wales recently had to pay his political rival 3,000 Pounds for posting a libelous comment about him on Twitter. Colin Elsbury also had to publish an apology to his Twitter site and pay legal costs. This is why it's important to understand comments posted to social media sites aren't privileged. "Everyone talks on Facebook like they're talking to a friend," Captain Roach said. "On Facebook, people put a lot out there that they don't realize people are seeing." If the comments posted to social media affect the orderly accomplishment of the mission or present a clear danger to loyalty, discipline, mission or morale of the troops, commanders could order their subordinates to stop using social media sites. "Military orders are inferred as lawful unless proven otherwise," Captain Roach said. Service members also need to be aware of Operational Security when posting comments to their favorite social media sites. They should also make sure their friends and families are aware of OPSEC too. "If you can't self-regulate, you're going to get commanders being justified in putting more limits on you," the captain said. "If you're responsible, Facebook, I think it could be a great tool. If you're not, there are plenty of ways to get in trouble, and that wouldn't be good for anybody." Every service member does have the right to free speech. However, upon joining the military, that right had some limits placed upon it. Be aware of those limitations.