June 4, 2007

Free speech in the military

From the Washington Post:

In a case that raises questions about free speech, the Marines have launched investigations of three inactive reservists for wearing their uniforms during antiwar protests and allegedly making statements characterized as "disrespectful" or "disloyal."

The case also raises a fundamental question of interest to the roughly 158,000 men and women in the Marines' and Army's Individual Ready Reserve: Are they civilians -- free to speak their minds -- or not? "This case is about the Marine Corps seeking to stifle critics of the Iraq policy by officially labeling civilian acts of peaceful protest and political speech as misconduct and serious offenses," says Michael Lebowitz, Kokesh's attorney, who fought in Iraq as an Army paratrooper.

I have always been a firm believer in free speech. It is critical in a constitutional republic like ours that the government never be allowed to restrict dialogue on public policy, no matter how much the government may disapprove of that speech. Furthermore, the right to free speech does not disappear when one goes to work for the government. With the exception of political appointees or policy-making positions, no unit of government should ever be allowed to fire or otherwise discriminate against an employee because of political speech done off the clock and out of the workplace environment.

However, it is not as cut and dry in this case. The reservists in question were wearing their uniforms while participating in a political protest, thus serving as a representative of the armed forces. It is reasonable for any employer, including the government, to demand that employees not behave in such a way that could send the message that they are acting as an official representative of their employer in a non-sanction activity. It is also not uncommon for employers in both the public sectors to require that company equipment (including computers) not be used for political activity.

Do reservists have the right to free speech? Absolutely. Do they have the right to participate in a political event while in their uniforms? No they do not. This does not extend only to political speech. Air Force drill sergeant Michelle Manhart posed semi-nude in Playboy earlier this year. Like Liam Madden and Adam Kokesh, Manhart was disciplined not for posing semi-nude, but for doing so in her uniform.

While government must not be allowed to discriminate against employees for First Amendment activity, it is a different story in the private sector. Private employers should be free to hire and terminate employment on an at-will basis. We can discuss whether a company's policy regarding speech off the clock and out of the workplace, but there is little doubt in my mind that private employers should have discretion over who works for them.

An example of this is a Wal-Mart store which recently fired an employee for posting a joke about dropping a bomb on the store in his personal MySpace page. (See articles from the Arizona Daily Star, Fox News and ABC News.)

If that is all there is to it, I question the manager's judgment. Why terminate a good employee because of one throwaway line on a personal blog, especially since it is a low-level retail employee? Does it really impact his ability to do his job? Is not the employee who snitched on David Noordewier being much more disruptive by bringing outside things into the workplace?

However, I am skeptical that this case is as simple as it has been made out to be in the media. Was he fired for one line in a blog post, or did the blog post contain much more than that? Was this a "last straw" situation? Even if his previous work record had been exemplary, had he recently displayed a poor attitude? Was he not getting along with other employees? There are far too many unanswered questions to make a snap judgment about this case. The Associated Press should be ashamed of itself for not digging deeper, especially when it comes to obtaining the entire content of the post.