The Speech Rights of Air Professionals

Among the most sublime utterances in the rhetorical fabric of our nation's founding is Article 1 of the Bill of Rights: "Congress shall make no law... abridging the freedom of speech or of the press." For those American citizens wearing the uniform of our armed services, however, there have long been on the books laws passed by Congress that in practice do sanction the abridgement of speech rights of service members when military necessity so dictates.' Such laws flow from prudent constitutional provisions for Congress to make rules for the government and regulation of the armed forces (Art. 1, sec. 8) and for the president to act as commander in chief of those armed forces (Art. 2, sec. 2). A serious problem ensues from the fact that in interpreting applicable law, the courts have never defined precisely how far military necessity should extend in sanctioning the infringement of speech rights guaranteed under the Bill of Rights. The courts have traditionally acted to protect operational security, and they have taken a disapproving view of soldierly speech that represents a genuine threat to good order and discipline. But the extent to which service members' speech can be censored solely for failure to con form with service or government policy-as it now frequently is-has never been confronted head-on and unambiguously resolved by the courts.