Government, Naval Academy midshipman's attorney spar over free-speech rights
By HEATHER MONGILIO | The Capital | Published: February 11, 2021
ANNAPOLIS, Md. (Tribune News Service) — The First Amendment protects, in most cases, the free speech of people from government regulation. But when it comes to the military, it gets a bit complicated.
That complication will be on display Friday as a judge is likely to decide if a midshipman's speech threatened the good order and discipline of the Navy or if it is covered by the First Amendment.
Judge Ellen Hollander will hear the latest in the case of Midshipman First Class Chase Standage, who is suing the Naval Academy superintendent and former Navy secretary over his expulsion, which is temporarily on hold until Feb. 19.
Superintendent Vice Adm. Sean Buck recommended that Standage be separated from the Naval Academy after a series of tweets from the summer, which academy leadership criticized as inappropriate and, in some cases, racist.
Former Secretary of the Navy Kenneth Braithwaite agreed with Buck's assessment, overturning his assistant secretary's decision to retain the midshipman.
Standage's attorney, Jeffrey McFadden, argues that the separation violates the midshipman's First Amendment as well as his Fifth Amendment rights.
The government, led by assistant U.S. attorney Kelly Marzullo, argued that Hollander should not grant a preliminary injunction to Standage because the midshipman's arguments will fail. Standage, through McFadden, must prove that his arguments will succeed, that he will likely suffer irreparable harm if the injunction is not granted, the balance of equities tips in his favor and the injunction would be in the public interest.
Whether the First Amendment applies to Standage's speech is one question facing Hollander, as the government will likely argue that it does not, meaning Standage's arguments will not succeed.
Racist speech and inappropriate speech — unless inciting violence — falls under the First Amendment. At least it does for civilians, although only when it is being punished or regulated by the government. The First Amendment does not protect a civilian from being fired by a private company or banned from a social media platform.
When it comes to the military, speech may not be tolerated if it negatively affects the military's need for good order and discipline, said attorney Dennis Murphy. Murphy served as a staff lawyer at the academy from 1988 to 1990.
Standage's case is interesting because the midshipman was on leave at home in California when he fired off the tweets, Murphy said. That brings up one question for Hollander. Did Standage's tweets affect the military's good order and discipline if he was not at a military installation and was on leave?
According to the academy's social media policy, midshipmen may post their personal views on social media, including on public issues or political candidates, as long as it does not violate service regulation or the Uniform Code of Military Justice and they are not identified as a member of the military.
McFadden argued that Standage's now-deactivated Twitter account did not identify him as a midshipman, while the government and the academy argued he was easily identifiable as a midshipman.
Hollander will need to look at how many people saw Standage's tweets, including how many midshipmen. She will also need to look at if the academy received any complaints.
According to the academy's notes on the Standage case, multiple midshipmen brought the tweets to the academy's attention. While the tweets are no longer available, screenshots of the tweets did spread on Twitter.
"It's a close call," Murphy said. "That's what it is."
Standage is not the only service member to face disciplinary charges over social media comments, said Georgetown University professor Heidi Urben in an email. Those investigations, like Standage's, usually come following a complaint.
"The Department of Defense's overarching guide that addresses partisan political activity (DODD 1344.10), for example, doesn't address social media," Urban said in the email. "Closing that loophole would provide greater clarity for service members in terms of what's allowable and what's not, and more importantly why service members should think twice about engaging in partisan commentary online."
Social media has become an area of concern, said retired Lt. Col. J. W. Kastl. Many service members treat it as if there are no rules on social media.
Still, what is said on social media can land a service member in trouble if it violates good order and discipline, Kastl said.
"Just as you can't quit the job, you can't talk back to your employer," he said.
The military needs to remain neutral, he said. Policies against extremism and racism are not necessarily considered political. The military has been preaching equality and against racism for some time now, he said.
In separating Standage, academy leadership levied administrative conduct unbecoming of an officer charge. Using the conduct charge, Buck and other leadership overseeing the case needed to determine if Standage's speech would dishonor or disgrace him, which would compromise his standing as an officer, Marzullo wrote for the government.
Military leadership is often the best to determine if the speech affects the military or an officer's standing, according to Marzullo's filing.
"In this case, a military commander is better situated to evaluate whether comments that suggest, for example, the use of airstrikes against civilians, or that appear to celebrate the extrajudicial killing of a Black woman, dishonor or disgrace an aspiring Naval aviator and compromise his standing as an officer," Marzullo wrote.
McFadden, wrote in his response that Standage's Naval career and his master's degree, which began this semester, is in jeopardy because his speech does not fit in with the political atmosphere at the Naval Academy, where leadership has been encouraging midshipmen to be anti-racist.
McFadden wrote in his argument that the assessment of whether Standage's speech posed a threat to the military's reputation or the midshipman's standing should not come down to Buck's opinion.
Buck failed to punish midshipmen for their tweets that are "the most vulgar, pernicious, nihilistic, racist and seditious" because they are liberal, making him incapable of judging Standage's speech, according to McFadden's arguments.
Standage is being punished because his views do not agree with "a political subgroup," McFadden wrote.
"Moreover, there exists substantial evidence that MIDN Standage's valiant efforts to uphold constitutional rights and principles against a tidal wave of cancellation and censorship have enhanced [sic] his standing as a midshipman and have seriously compromised the reputation and standing of the Superintendent, Commandant, and Deputy Commandant," McFadden wrote.
Hollander will hear Standage's case at 1:30 p.m. Friday.