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Military law experts: Marines may not be able to ban troops from offensive sites

Jun. 12, 2013 - 06:00AM   |  
Marine Gen. James F. Amos
In response to Rep. Jackie Speier, right, who demanded the Marine Corps take action against Marines who post online images and comments degrading to female Marines, Commandant Gen. James F. Amos, left, said the Corps will examine making some websites off limits. ()
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The commandant of the Marine Corps said the service is looking into making certain websites and social media pages off-limits to Marines — one possible response to the objectionable images and content that troops are posting to the Web. But military law experts say the endeavor is a legal minefield.

In a May 29 letter to Rep. Jackie Speier, D-Calif., Gen. Jim Amos denounced Facebook pages and other social media postings that “denigrate women in the Marine Corps.”

“We share your indignation; I am responding on behalf of the Secretary of Defense,” he wrote. “These depictions are neither official Marine Corps communications nor reflective of the U.S. Marine Corps’ sentiments toward women.”

Responding to a May 8 letter from Speier, who demanded the Corps address popular “humor pages” where Marines post offensive or demeaning images of women, Amos said the service is examining the possibility of making certain websites off-limits to Marines — just as it does with local businesses the Corps determines are engaging in illegal or abusive practices. He said the Corps is looking into Armed Forces Disciplinary Control Board Procedures to determine if such a course of action would be legal and effective.

The Marine Corps has previously demonstrated its willingness to hold Marines accountable for online speech in the case of Sgt. Gary Stein, who was discharged in early 2012 for Facebook posts deriding President Obama, in accordance with a military regulation restricting the political speech of active-duty troops. But this issue is less clear-cut, said retired Marine Lt. Col. Gary Solis, a military law expert and professor at Georgetown.

Solis cited the 1974 Supreme Court case Parker v. Levy, which found that the necessity of order and discipline can permit military commanders to restrict free speech and other rights in ways that are prohibited outside the military. Nonetheless, since freedom of expression is a fundamental right, he said any military restriction would have to be carefully constructed and tightly tailored to address a specific issue.

“It would be very difficult to issue an order that would be broad enough to cover these [Facebook] pages and sufficiently narrow enough to merit the prohibition on free speech,” he said.

To equate specific Web pages with businesses on Marine Corps installation off-limits lists, such as brothels or price-gouging car dealerships, is not a perfect comparison, Solis said, since each establishment ban is “based on a specific and articulable danger.” It’s better to compare the sites to a printed publication, he said. Whether Amos can justify a new restriction on troops’ speech online, he said, will become clearer after the order is published.

“The commandant is arguing that this speech may be regulated. The commandant can certainly issue such an order,” Solis said. The question is how well it will hold up if it’s challenged.”

While the Marine Corps can easily regulate what happens on its official networks during duty hours, controlling off-duty surfing is another matter, said Philip Cave, a retired Navy judge advocate general with three decades practicing military law. Like banning Marines from having certain books in their barracks rooms, keeping troops off certain websites may be illegal intrusion into their personal affairs, he said.

“The issue is how far do you go,” Cave said.

David J.R. Frakt, a military law expert with the University of Pittsburgh Law School and lieutenant colonel in the Air Force reserves, said Marine leadership may need to pursue a change in the Uniform Code of Military Justice to define and prohibit hate speech in order to prosecute Marines’ objectionable web postings the way they aim to.

“There’s a sort of myth out there when you join the military you give up your free speech rights, and that’s not true,” he said. “They may be limited, but there still has to be some legitimate mission-based justification for a restriction.”

Amos may be pursuing something like that. In his letter to Speier, he called for legislation that would provide Marines with “adequate tools” to help them put an end to social media abuse in the armed forces.

To date, no such legislation had been proposed.

In an interview on Fox News earlier this month, Speier rebuffed Amos’s claims that the broad scope of Internet speech and the prevalence of anonymous postings made it difficult for the Marines to crack down on their social media problem even as they tried to do just that.

“If this happened in the private sector, these individuals would be fired,” she said.

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