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Ask the Lawyer: First Amendment rights have restrictions — even online

I am often asked whether service members can be prosecuted for comments about their military superiors on sites such as MySpace, Twitter or Facebook.

While it depends on what was said, the answer generally is yes — you can be prosecuted for making disrespectful comments about your military superiors, and you are not protected by the First Amendment.

The Supreme Court has determined that when the military can demonstrate that a restriction on your speech is reasonable toward protecting respect for duty and discipline, the military can restrict or even bar free speech.

For example, if a junior officer were to disparage a senior officer on a public Web site, the junior officer could be subject to the Uniform Code of Military Justice for violation of Article 89 — disrespect to a superior commissioned officer.

Public disdain for competent military authority generally will result in disciplinary action. The medium through which that disdain is communicated is largely irrelevant.

Communicating via the Internet can increase the “public domain” exponentially and create a bigger issue than an exchange within an office on base.

Service members endure great sacrifice to ensure mission accomplishment. Unfortunately, we sacrifice some of our constitutional rights. But the government restrictions must be reasonable and, therefore, each case must be determined on its own merits.

If you’re unsure about whether you may be insulting, annoying, embarrassing, alarming or disparaging a person, leave it off your social networking site and consult a military attorney in your local judge advocate general’s office.

Failure to seek counsel could result in poor performance reports for lack of judgment or more significant consequences, such as a criminal prosecution for disrespect or contempt for authority.

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (www.fedattorney.comfedattorney.com). E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.