The Defense Department faces inherent First Amendment limitations in its efforts to counter extremism within its ranks.
Thomas Robertson wore a gas mask on Jan. 6, 2021, when he entered the Capitol Building while brandishing a wooden stick. He proceeded to confront police officers, take videos while inside the Capitol, and make obscene gestures in front of a statue depicting a Revolutionary War general. He initially received a sentence of 87 months, which was later reduced to 72 months following Fischer v. United States. His case, while troubling enough for the constitutional system and the peaceful transfer of power, also presented a more profound concern: Robertson served on active duty in the U.S. Army before becoming a police officer in Virginia. He had training as an infantryman and military police officer and was also deployed to Iraq and Afghanistan. His service, however, did not prevent his criminal actions and efforts to engage in, according to his own words, a “counterinsurgency” against his own country.
Robertson is just one of the more than 80 current and prior members of the U.S. military who were charged in connection with the attack on the Capitol, igniting intense discussions about the scope of extremism within the military. In response, Congress proposed military law reform and affirmative requirements for the Department of Defense to investigate and report to Congress on extremism cases within the department’s ranks.
Most notably, in 2021, the Defense Department issued a revised instruction expanding the definition of political and dissident activity within the department. The revision defines extremist activity broadly to include efforts to overthrow the U.S. government and the use or promotion of unlawful violence with specific ideological or discriminatory purposes. The U.S. Army, in turn, published service-specific guidance for soldiers in June 2024, implementing the instruction.
Two major policy documents have emerged from this process. Both policies operate off of the department’s legal authority to regulate soldiers’ speech and conduct. Because the U.S. lacks a statutory definition of extremism or domestic terrorism, such policies have sought to delineate and define “extremism” within the military context, for military purposes. The country has refrained from enumerating domestic terrorist groups due to First Amendment concerns and the lack of political support to legislate a domestic terrorism definition and offense.
The Supreme Court has recognized that the Defense Department has authority to manage discipline and mission accomplishment through regulations on soldiers’ speech and expression. These policy efforts are consistent with the Supreme Court’s relevant First Amendment jurisprudence, and they represent the lack of a national consensus on prohibited extremist activity.
The Two Directives
The two instructions—DoDI 1325.06 (for the Defense Department) and Army Directive 2024-07 (for the Army)—rely on the Defense Department’s authority to regulate soldiers’ speech by imposing limits on soldiers’ activities related to extremist organizations. The Defense Department, both through the Court’s jurisprudence and more broadly through statute, has the authority to impose legally binding restrictions on soldiers’ speech and conduct that threatens good order and discipline or the military’s mission. The instructions do not limit how soldiers think or mandate particular political views; instead they target extremist activity that threatens military interests and the Pentagon’s national security mission. The rationale is ensuring soldiers’ behavior is “consistent with good order and discipline,” promoting U.S. national security, and avoiding corrosive behavior within units.
Under the new directives, commanders have the authority and are required to prevent extremist activity according to two prohibitions. The first is a prohibition on active participation in extremist activity. The second is a broader prohibition on behavior that, while not otherwise defined as extremist activity, impacts the military’s mission or good order and discipline.
The prohibition on active participation in extremist activity has two elements. First, the Pentagon defines extremist activity as behavior that is “inconsistent with the responsibilities and obligations of military service.” It includes a list of six enumerated examples such as using or advocating for illegal means to deprive an individual of their legal rights, advocating or supporting the overthrow of the government, or advocating for unlawful discrimination. The regulation then lists 17 forms of conduct, referred to as active participation, that soldiers are prohibited from engaging in with regard to extremist activity. The conduct includes providing financial support, sharing online materials, or providing material support and training. Practically, this could look like a soldier supporting the Ku Klux Klan by providing material support or sharing online content—meeting both the extremist activity prong, because the KKK advocates for illegal discrimination, and the active participation prong with the prohibited conduct. If these two elements are present, a commander can order a soldier to halt the activity, and the commander can take punitive actions against the soldier—such as an administrative reprimand or even a court-martial.
The prohibition, which operates independently from the prohibition on active participation in extremist activity, empowers commanders to halt or punish other extremist activity that threatens good order and discipline. The directives permit commanders to prevent soldiers from displaying extremist flags or taking any other act “contrary to the good order and discipline of the unit.” The commander must establish a connection between the targeted activity and military interests to trigger the commander’s authority to act. Practical examples could include ordering soldiers to halt discussion over extremist ideology in the workplace or to avoid known gathering locations for extremist groups such as the KKK or the Black Panthers.
The military’s authority to uphold good order and discipline and to ensure mission completion enables the directives to limit soldiers’ speech and conduct. The distinction between the two approaches is based on the presumptive impact on good order and discipline that active participation in extremist activity has. Once a commander determines that a soldier has engaged in active participation in extremist activity, the commander has the requisite justification to act because the Defense Department has already identified the act as affecting military interests. Conversely, the catch-all mechanism requires commanders to determine how extremist conduct, while not qualifying expressly as active participation, affects a military interest such as unit discipline or mission accomplishment. Both methods highlight that the department does not prohibit extremist viewpoints or thoughts as such. Instead, the legal authority for commanders to limit speech and behavior rests on the ability to establish particular activities as threatening military interests.
Do the Limitations Go Too Far?
The Defense Department’s limitations on extremist activity cover a broad range of political speech and expression that is otherwise largely permitted for civilians. It is reasonable to argue that the breadth of the Pentagon’s approach can silence dissenting views among its ranks and impermissibly chills soldiers’ First Amendment expressions. Justice William Brennan stated in a dissent in a landmark case on soldier speech, “[N]or can I believe Congress would assume authority to empower the military to suppress conversations at a bar, ban discussions of public affairs,” or stifle other basic forms of political participation.
His dissent articulated the concern that limiting soldiers’ speech or expression unduly limits fundamental First Amendment rights. The Defense Department and Army directives limit basic forms of expression that are otherwise allowed—and legally guaranteed—for U.S. citizens. Examples include the right to contribute to organizations a person associates with or the right to share content, such as liking or reposting links online pertaining to groups like the Proud Boys, KKK, or antifa. The Defense Department’s restrictions are very broad and contrary to a conventional understanding of citizens’ customary rights of expression and speech.
One Supreme Court doctrine sheds light on whether the limitations cross over into impermissible First Amendment territory. This doctrine, the “separate society doctrine,” recognizes that the military is a unique community with challenges separate from civilian society. Given the distinctive character of the military community and the military mission, the Defense Department can impose a host of restrictions that would be impermissible if applied to civilians. The separate society doctrine, which remains a valid precedent in Article III and military courts, was crystalized with Parker v. Levy. The case enabled speech limitations on members of the military because the Court held that the military “is a specialized society separate from civilian society” with “laws and traditions of its own.” The limitations are necessary in the Court’s eyes because the military has a mission to fight wars, which requires a system built on following orders, with rules for duty and discipline. The Court also pointed to “the different character of the military community and the military mission [that] requires a different application” of First Amendment principles. Civilian life, according to the Court, does not require a “fundamental necessity for obedience, and the consequent necessity for imposition of discipline.” The requirements of “discipline, morale, esprit de corps, or civilian supremacy” justify speech limitations because the failure to do so would otherwise unduly disrupt the military’s mission.
One military court-martial appeal highlights this doctrine. The Court of Appeals for the Armed Forces (CAAF) heard an appeal from an Army soldier who organized a strike and solicited other soldiers to strike in protest of harsh working conditions during the mobilization before the first Gulf War. The CAAF ruled that unlike civilian employees, whose ability to protest and voice concerns about workplace conditions receive significant protection, soldiers lack those same rights because military speech limitations serve mission requirements. Allowing soldiers to protest the austerity of combat deployments subverts the notion of command and generally undermines the military’s ability to operate in harsh conditions.
Are the Limitations Too Weak?
The involvement of members of the military in the Jan. 6 riot suggests that perhaps the directives don’t go far enough. Despite the relative breadth of DoDI 1325.06 and Army Directive 2024-07, the limitations do not address the issue of whether a soldier can passively associate with an extremist group. As Rachel Van Landingham aptly notes, the rules create a situation in which a soldier could associate with a group such as the KKK so long as the soldier avoids active participation in the group—such as openly advocating for the group or sharing the group’s content online with other individuals. Such a result may undermine the Defense Department’s interests in promoting public trust and ensuring its personnel can work with one another in the relatively diverse community that is the military. This issue raises the question of whether the lack of a prohibition on passive membership or association is due to hesitancy in the military bureaucracy or if it results from legal limitations of the separate society doctrine.
There’s a compelling argument that passive membership or association with an extremist group presents an actual or likely threat to military interests. The aftermath of Jan. 6, the rise of political violence, and reduced trust in the Defense Department all support the notion that the fighting force might suffer from service members’ association with extremist groups, even if the association is confidential and unknown to the public and other soldiers.
Despite the intrinsic appeal of the argument, the lack of a discrete link between passive association or activity and a military interest is unlikely to survive review from the CAAF or the Supreme Court. In U.S. v Wilcox, the CAAF held that some evidence is needed to show how activity, speech, or association harms a military interest; the military failed to show a sufficient nexus to a military interest to allow the military to regulate and punish speech that is otherwise presumed as valid under the First Amendment. A passive membership prohibition is akin to Wilcox because passive membership or association fails to demonstrate a sufficient nexus to military interests without some form of amplifying evidence. In other words, an entirely private and confidential action lacks the necessary impact on the military until it becomes public, at which point commanders can act under their mandate in DoDI 1325.06.
The cases in federal and military courts require a nexus to military interests because military service does not “render entirely nugatory in the military context the guarantees of the First Amendment.” The Court’s and the CAAF’s holdings on speech limitations recognize that the military should respect soldiers’ First Amendment rights to the extent that they are compatible with the military’s mission. It does so with “great” deference to the military’s mission, but the cases still require the military to show how the targeted speech or expression threatens its mission. Targeting membership or association without a nexus to military interests would exceed current deference because the underlying rationale—protecting military interests—would not be present.
Do Other Methods Offer an Alternative for Passive Association?
There’s another framework for regulating military conduct that might reach passive association—the “public employer framework.”
Pickering v. Board of Education found that public employers can regulate employee speech under prescribed circumstances if the government’s interests in its mission and efficiency outweigh the employee’s speech on a matter of public concern. The test balances the employee’s interests to comment on matters of public concern, such as politics or public issues, with the government’s interest in maintaining an efficient and productive workplace. Like the military’s speech limitations, the employer must show that the employee’s speech affects the organization’s mission.
Typically, public concern relates to employee speech and expression. Public concern involves a range of matters, including policy debates and debates over government effectiveness. The test indicates that passive association with an extremist group could constitute public concern if the association is tied to an individual’s ability to engage in or consider political and policy debates.
It is unclear how the public employer framework would apply to active-duty military personnel. One military legal article noted that at least two cases exist wherein military reservists challenged adverse personnel actions under the Pickering test. One case involved an Air Force reserve officer who expressed concerns about his private ability to execute an order to launch nuclear weapons. The Air Force administratively discharged him for substandard performance due to his inability to execute orders. He challenged the decision, and the U.S. Court of Federal Claims held that his discharge was proper because the Air Force did not violate the First Amendment as part of the court’s overall review of the officer’s discharge.
The Court of Federal Claims’s decision applied the Pickering test and held private policy concerns were not matters of public concern and that the Air Force had a valid interest in ensuring its personnel execute orders. The reasoning cited past Supreme Court cases on the separate society, to include stating any interference with the officer’s speech was “merely incidental to the military’s need to ensure discipline in order to carry out its important mission.” The result suggests the public employer framework largely mirrors the underlying separate society framework when analyzing the interests of the employee and the employer as applied to the military. Uncertainty remains, but at a minimum, the public employer framework does not radically alter the basic analysis the government faces when regulating employee or soldier speech.
While additional deference seems unlikely if the military were to apply the public employer framework, the issue remains that blanket prohibitions on passive membership are unlikely to satisfy the Court’s balancing test for public employee speech. The Court noted in Connick v. Myers that statutes barring “employment based on membership in subversive organizations” are “uniformly rejected.” The question is linked to the relationship of speech or expression with association under the First Amendment. The freedom of association protects the ability to associate for “activities protected by the First Amendment,” such as speech, which indicates that passive association, without something more threatening to the employer’s interest, is likely to remain protected.
Conclusion
The events of Jan. 6 raised difficult questions about the military’s role in the U.S. government, and specifically how the U.S. can best uphold civilian control while ensuring the military remains loyal to the constitutional system rather than to any one party or individual. Should the military take a more forceful role in preventing corrosive extremist behavior among its ranks? Would this approach have prevented members and veterans of the military from attending the riot? Or should association with particular groups—even among members of the military—be left to Congress, the president, and the citizenry?
Unlike 18 U.S.C. § 2339B, which provides clear guidance on which foreign terrorist groups a citizen is prohibited from supporting, no such domestic analog exists to help the Defense Department conclusively determine which domestic extremist groups a citizen or soldier is per se prohibited from supporting or joining. Asking the Defense Department to go above and beyond its current authorities—which only allow regulation of targeted extremist activity that has a nexus to military interests—would require the department to make decisions based on underlying law and policy that lacks clarity.
The focus on military interests reflects the Defense Department’s national security mission and the principle of civilian control over the military. It suggests that doing so supports rather than detracts from its efforts to remain apolitical with respect to civil-military relations. The current policy enables the Defense Department to target extremist activity that affects the military mission and to ensure civilian control without further inserting the department into unsettled questions of domestic terrorism and extremism. These robust but cabined authorities signal the department’s effort to promote security while seeking to maintain First Amendment protections where possible.
– Evin Stovall is an active-duty major in the U.S. Army Judge Advocate General’s Corps assigned as an assistant professor in the Department of Law and Philosophy at the United States Military Academy in West Point, New York. Published courtesy of Lawfare.
