Military Censorship Is to Censorship As…: Prior Restraint in the Armed Forces
Introduction
With dissent mushrooming in the armed forces, an increasing number of underground newspapers, blunt and outspoken in their distaste for the Vietnam War and the role of the military in American foreign and domestic policy, have appeared on military bases. Frequently, the response of base commanders has been to delay, or suppress the publication, and occasionally to punish its sponsors.
A number of sanctions are available to commanding officers which may be invoked to stifle distribution of dissident literature at military bases. Article 89 of the Uniform Code of Military Justice prohibits disrespect towards a superior commissioned officer, which is defined by the Manual for Courts-Martial as “acts or language, however expressed,” such as “opprobrious epithets or other contemptuous or denunciatory language.” Under the General Article of the U.C.M.J. condemning all disorders and neglects to the prejudice of good order and discipline, the making of disloyal statements is included as a military offense. Alternatively, federal law imposes a criminal penalty on the distribution of any written or printed matter which “advises, counsels, or urges insubordination, disloyalty, or mutiny or refusal of duty by any member of the armed forces,” with an intent “to interfere with, impair, or influence the loyalty, morale, or discipline of the armed forces.”
In addition to formal sanctions, base authorities frequently impose extra duty burdens, make punitive transfers, revoke privileges, or institute harassment prosecutions for insubstantial violations of military rules. Because of the informal manner in which these punishments are imposed, they often elude detection.
However, the most direct method of preventing the distribution of dissident publications on military bases is provided by regulation. Under Army Regulation 210-10, Paragraph 5-5 military base commanders may establish a censorship system to prohibit the distribution of materials which, they determine, pose a clear danger to base loyalty, discipline and morale.
This Note will examine the constitutional issues raised by A.R. 210-10 (5-5). Principally, it is submitted that, contrary to the first amendment, the regulation imposes a prior restraint on the distribution of ideas, incorporates a standard in conflict with leading civilian precedent, and fails to provide constitutionally guaranteed procedural protections. These deviations from well established constitutional principles have been justified primarily by the military’s need to maintain discipline. This Note will evaluate that rationale to determine whether it provides a constitutionally sufficient basis for a military censorship system.
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