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William B. Fox Archive

   

WHY DO WE NEED
THE FIRST AMENDMENT
TO DEFEND THE U.S. MARINE CORPS?

by Major William B. Fox
31 December 1991

 

The First Amendment of the Constitution reads: "'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 people peaceably to assemble. and to petition the Government for a redress of grievances."

The cover of the December 24, 1990 issue of Newsweek reads: "Watch What You Say: THOUGHT POLICE: There's a 'Politically Correct' Way To Talk About Race, Sex and Ideas. Is This the New Enlightenment --or the New McCarthyism?" The article talks about how the trend towards "political correctness" has suppressed academic freedom on many college campuses.
Academia is a last bastion of First Amendment rights. If one can not freely examine issues at a university, where can one think freely? First Amendment rights should also be a vital concern to military officers, since they are a prerequisite before other rights become "'meaningful. When we lose them, we lose our most fundamental "Why We Fight" reason to fight.
We have all sworn to protect and defend the Constitution against all enemies, foreign and domestic. If you can summon the physical courage to risk your life in combat, why not summon the moral courage to speak your mind on "sensitive" issues? Has the military--or for that matter our entire society- become so over-politicized that we can no longer talk to our fellow servicemen about important "facts of life" that may directly or indirectly impact on our ability to defend the Constitution?
One might say, "Why worry about it? The media is always fussing about the First Amendment. Let them serve as our watch dogs while we mind our military business." But has the media always been a good guardian? Col Shotwell described the dissenting view of many Marines in his July 1991 Marine Corps Gazette article. "The Fourth Estate as a Force Multiplier"

As the Head of the Media Branch at Headquarters Marine Corps during 1985-88 I was responsible for setting up military-media seminars at the Command and Staff College and Amphibious Warfare School. Typically these sessions included keynote speakers from the mainstream news media and panel discussions with members of the Pentagon press corps. I never ceased to be amazed at the finger-pointing antipathy that was often aroused and at the depth of suspicion that surfaced during discussions of media coverage of combat operations. Officers who had never once had to confront either a reporter or an armed opponent blamed the media for losing the war for us in Vietnam, impugned their morals, and maligned their loyalties.

Is there any research that supports the concerns of these Marines about media .bias? Consider the December 23, 1991 Forbes Magazine article "TV's Killer Businessmen" by Peter Brimelow that describes media studies conducted by professors S. Robert Lichter and Stanley Rothman. According to Brimelow, the studies "demonstrated through polling that the American major media were run by a surprisingly homogeneous group: upper middle-class, northeastern urbanites who professed no religion except a political liberalism sharply more intense than in the population at large (From 1964 to 1976, for example, the proportion of media leaders voting for Democratic presidential candidates never dropped below 80%, 30 to 45 percentage points above the overall electorate)." According to the Lichter and Rothman article "Hollywood & America: The Odd Couple" that appeared in the Dec/Jan 83 issue of Public Opinion magazine, the composition of the "television elite" is as follows: White: 99%, Male: 98%, From metropolitan area: 82%, From northeast corridor: 56%, Father voted Democratic: 68%, Father graduated from college: 35%, Raised in Jewish religion: 59%, College graduate: 75%, Family income $200,000+: 63%, Political liberal: 75%, Religion "none" 44%, and Regular churchgoer: 7%." According to Lichter and Rothman, "43% endorses a complete overhaul of American institutions. In short, their acceptance of the economic system is tempered by a deep-set alienation from the social and political system." In their 1981 article "Media and Business Elites," Lichter and Rothman found that business leaders rate the media as being more powerful than anyone else in America, to include elected government officials.
Suppose you are told to speak before the kind of seminar described by Col Shotwell on the topic: "The Military and the Media: Similarities and Differences." Would you express concern that there may be value conflicts between media and military personnel that could interfere with the ability of officers to gain a more rational, coherent, and fully informed view of important issues?
Suppose that you work in a joint staff billet at the Pentagon, and your commanding officer, who is not a Marine, is very opionated. He writes bad fitness reports on anyone who disagrees with him. He tells you how to slant your seminar talk. For starters, he feels that "the national media is America" and that "it is just plain un-American and inappropriate for any serviceman to criticize the media or suggest that media people are in any way different from military personnel or middle America.". He feels that military people have no business involving themselves in controversial issues, even in private conversations. "If you do not have mainstream ideas, you should either stay in the closet, or take off your uniform and get out of the military. You are a serviceman twenty four hours a day, and should never say anything in private or read anything that you would not say or read while in ':uniform before other miltary personnel."
What are you going to do? Are you prepared to stand by your scientific and academic principles and let the chips fall where they may in analyzing and discussing the Lichter and Rothman data? Are you prepared to explain to your commanding officer that national news sources are privately owned information distribution businesses that have no more legal right to tell Americans how to think or legal right to represent official U.S. policy than local pizza advertisers? Would you explain that we are only required to obey the Constitution and elected government officials empowered by the Constitution, and have no requirement to adhere to any "politically correct" or "elite" views that are outside of this? Would you also explain that we even retain a private capacity to criticize our Commander-in-Chief as voting citizens of this republic?
I submit that in the particular situation that I have just described, it may not be wise to have a confrontation with your commanding officer. Nor may it be wise to "tell all" to your audience. However, at the same time, it is never wise to lose your awareness of your First Amendment rights. There may be times when you have to demand the right to exercise them. There may be times when Marines have to feel free to pass on controversial information without having to fear that they will get "turned in" as "subversives."
Organizations that get too political lose the ability to pass on honest and truthful information, even when it becomes urgent and necessary. They develop such a paranoid witch hunt environment that no one can dare tell the King that he is wearing no clothes. At some point, peoples' brains turn into garbage collections of disinformation. Few people are left who know what is really going on.
As the reality level of an organization declines, its ability to adapt to change also disintegrates. That could eventually mean lost battles and wasted lives. It can also mean a badly damaged image in the public eye. People might begin to say, "Oh, they are just a bunch of political soldiers and bureaucratic freeloaders. What we really need are officers who are intelligent enough to understand what they are sworn to defend. Since these people do not 'have it,' let's just cut their tax funding out from under them and give it to a service that has more competent individuals."
How do we figure out when to open our mouths and say what we really think, and when we should keep our mouths shut and "play the game"? That can be a very tough judgement call. While too much politics can degrade an organization, too little politics can also create serious problems. A certain amount of diplomacy is required to smooth over insignificant differences to maintain efficient operations.
Some people argue that, "In the final analysis, military people have no First Amendment rights --after all, the First Amendment means a skeptical approach to life, dissent, partisan politics, the open dissemination of ideas, and the right of political, religious, or ethnic affiliation. In contrast, "military" means obedience, an avoidance of politics, moralistic indoctrination, impersonal regimentation, integrated team-building, and secrecy, so they just do not mix --end of discussion." They also argue that commanders have enormous firepower on their side under the UCMJ to suppress dissent. The provisions of "conduct unbecoming" and "contrary to the good order and discipline" can be so broadly interpreted that they can be used to attack just about any free thinking serviceman who finds himself in disfavor.
But the truth is that we do have First Amendment rights, and we can do some very vital and necessary things with these rights to protect the kinds of things we hold dear, such as the Constitution, our religion, our people, the Marine Corps, and our country. The question of where our First Amendment rights end and where the rights of the Government begin can be a tough one. We usually have to make tradeoffs between opposing considerations to make a sound decision. These tradeoffs exist on three different levels: competing legal rights, competing operational requirements, and competing political influence. These areas are analyzed in detail as follows:

Competing Legal Rights:

Pro-First Amendment: The most basic right that favors your freedom of speech is the First Amendment. Under ordinary circumstances as a civilian, you can read or think or discuss anything you please. Of course even here there are some prohibitions, such as engaging in libel or conspiracy. But in every case the burden is on the Government to define these limitations. I might add that you have a right to speak out to defend the government against such dangers as waste, fraud, or treason as part of your duty to defend the Constitution.
Limitations: The military has rights that it can assert over an individual's basic rights. The theory is that the individual does not lose these rights; he simply loses the right to remain in the military while exercising them. The Marine Corps has a right to protect its image and its official status. It can also exercise its right of managerial discretion to promote or relieve individuals. The military is required by the Hatch Act to prevent active duty personnel from engaging too deeply in overt partisan political activities, such as wearing a uniform to a political rally. It also has a right to tell people to keep quiet to guard classified information.

Competing Operational Requirements:•

Pro-First Amendment: Commanders must promote initiative and rational problem solving abilities in order for the Marine Corps to adapt to new environments. They must safeguard the free flow of information and "constructive criticism" to prevent stagnation and abuse. The Naval Service has traditionally refrained from prosecuting private conversations. It seeks to retain their sanctity as a form of communication of last resort. The Marine Corps must also preserve basic citizenship rights, since it is inconsistent to completely crush liberty in an organization that is supposed to be fighting to defend it.
Limitations: The Marine Corps must maintain good order and discipline in fulfillment of its combat mission. It must remove flawed individuals before their defects can imperil military operations. It must at times withhold or distort information as part of security or deception planning against declared enemies of America. Finally, the Marine Corps must always be subservient to civilian authority, and can not allow active duty personnel to make statements that usurp the policy-creation powers of these authorities.

Competing political influence:

Pro-First Amendment: The Marine Corps ultimately serves the American public, and must weigh the value to a free society of the exercise of certain First Amendment freedoms. Commanders are unlikely to instigate proceedings against personnel who they believe could receive widespread public, media, and Congressional support that could make them look bad. Part of a Marine's potential outside support depends on his ability to project a moral and patriotic image. Commanders may also give a greater allowance to Marine reservists embroiled in controversy because of their involvement in civilian occupations such as journalism, politics, or academia.
Limitations: The public desires a disciplined, self-restrained, and civilian-subordinated military. It may actually reject a military person who bucks these expectations. Furthermore, the process of developing ones case, going to the press, contacting Congressmen, and fighting the government in court can be extremely expensive and time - consuming. In addition, ones case may end up not attracting much attention relative to other national concerns.

SOME BASIC FIRST AMENDMENT "SURVIVAL TRAINING" GUIDELINES:

If a Marine's search for truth leads him to develop views that are likely to cause official consternation, there are a number of ways he can share his views or associate with like-minded people to satisfy his conscience and aid his intellectual development while significantly reducing the risk that official action will be taken against him.
(a) A Marine's rights become more protected as he reduces his service connection, to include dissociating himself froin such "official" elements as being on duty, in uniform, or in a superior-to-subordinate relationship. Of course one is always free to express controversial views while in a fully official capacity, it is just that the right of the U.S. Government to assert its rights over ones individual rights increases exponentially every time an official element is added to the situation.
(b) A Marine's rights become more protected if his commanding officer or other superiors have some kind of advanced notice of the controversial activities. It is harder to be labelled a "subversive" if one is up front. However, one also has a right to not disclose ones personal views if one so chooses under ones Fourth and Fifth Amendment rights of privacy and protection against self-incrimination.
(c) A Marine's rights become more protected when he imparts . information in a calm and academic style rather than in an inflammatory style. It is more "military" to use a calm and disciplined approach.
(d) A Marine's rights become more protected when he can fully develop his ideas so that the full context, intellectual background, and clear meaning of his views can be understood. This builds his credibility as a disciplined and scholarly person rather than as someone who is impulsively "spouting off."
(e) A Marine's freedom of speech is more protected when it appears spontaneous and welcomed by the audience rather than part of a premeditated and unauthorized mass distribution campaign.
(f) A Marine's freedom of speech is more protected if he can avoid getting "acquired" and "targeted" by potential enemies, who may launch nuisance actions to waste his time and money.
(g) A Marine's freedom of speech is more protected if he uses extreme care in the way he handles his contact with the media. Although a serviceman has a legal right to contact the press and make military events a matter of public record, a journalist is also free to establish a strong service connection to anything a serviceman says from the way he writes his story.
(h) A Marine's rights are more protected if he can gain the support of reputable and substantial civilians or civilian organizations. While outsiders can not provide complete protection, they can at least raise the political cost to the Government of coming after a Marine. They can also act as proxies and disseminate information on behalf of a Marine.
(i) A Marine's right of association becomes more protected if he avoids affiliation with groups considered unsavory, highly unpopular, or tainted with criminality. However, we need to bear in mind that most people need the emotional support and intellectual stimulation of a group. Group membership is also a vital part of the democratic process of achieving peaceful change. What use are First Amendment rights in the first place if we can only affiliate with "mainstream" organizations?
(j) A Marine's rights become more protected if he can justify them in a logical and coherent manner based on Constitutional principals rather than in purely moralistic or emotional terms. It helps to be able to logically explain how ones views would make for a more productive society with a greater capacity for constitutional government.
(k) Last, but not least, a Marine's freedom of speech becomes more protected as he leaves the military room to acknowledge his First Amendment rights while dissociating itself from anything unauthorized or outside of its scope that he might say or do. A Marine spokesman should be able to say, the following:

The Marine Corps has no religious, political, or philosophical position except that of supporting and defending the Constitution. This individual has exercised his First Amendment rights in a private capacity that was in no way instjgated by or connected with official policy. He has demonstrated no intent to damage the good order and discipline or image of the Armed Forces, and has made no attempt to link the military with his views. We leave it to the free market place of ideas in the civilian sector to address the views expressed by this individual with counterarguments.

By defending the First Amendment rights of a fellow Marine, a Marine spokesmen ultimately uses the First Amendment to defend the integrity and honor of the Marine Corps itself as a nonpartisan defender of the Constitution of the United States. While it may be undesirable for Marines to publicly connect their official military status with any unauthorized ideological agendas, at the other extreme, it is every bit as undesirable for our country's armed guardians to adopt a military-mercenary mind set that leaves them intellectually brain dead or even brainwashed. Marines must always be capable of discussing and grasping issues that impact upon the survival of constitutional government and the future of this country.

 

 







Flag carried by the 3rd Maryland Regiment at the Battle of Cowpens, S. Carolina, 1781

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