Pentagon officials are considering new restrictions on service members’ interactions with far-right groups, part of the military’s reckoning with extremism, but the measures could trigger legal challenges from critics who say they would violate First Amendment rights.
Austin, who has pledged zero tolerance for extremism, ordered the review after the events of Jan. 6, when rioters including a few dozen veterans — and a handful of current service members — stormed the U.S. Capitol in an attempt to overturn the presidential election results.
A newly formed extremism task force, which includes officials from across the Defense Department, has until July to make recommendations on potential changes to military justice, rules on extremism and related issues that apply to uniformed military personnel, the Coast Guard and Defense Department civilians.
One step the task force is examining would alter a regulation that prohibits troops’ “active” participation in extremist organizations — activities such as fundraising, attending rallies and distributing propaganda — but permits what officials have called “passive” membership, which could include being admitted to groups or possessing their literature.
Officials said Austin, a retired Army general whom President Biden appointed as the country’s first African American head of the Pentagon, intends to ensure that the basic rights of military personnel are preserved.
“But keep in mind that we have also taken oaths, and we also have a set of values that we as a military and we as a department espouse,” a senior defense official said. “And if that speech isn’t in line with our values, then it makes it arguably impossible for that individual to be a good teammate and to be in line with the good order and discipline of units.”
Current and former officials say that Pentagon lawyers, also part of the task force, are likely to take a cautious approach in considering new restrictions on service members’ First Amendment rights, especially in an area of the law that many experts characterize as untested.
“That’s why this is challenging,” one former senior Pentagon official said. “It’s not just that it’s about constitutional rights. It’s that constitutional scholars don’t always agree.”
The deliberations reflect a larger debate about the proper balance between Americans’ constitutional right to voice opinions, even if many people find them offensive, and the threat posted by far-right movements espousing racist, misogynistic and anti-democratic ideas that sometimes advocate violence to achieve their goals.
Military officials say they have little reliable data about the extent of service members’ involvement in such groups, in part because cases that come to light are handled by different military services and in many instances are not sent to military courts.
But even before Jan. 6, a spate of reported cases highlighted what appears to be an alarming rise. Sometimes it has taken more than a year to discharge individuals known to support extremist causes, as occurred in the case of an airman who belonged to the white supremacist group Identity Evropa.
Uniformed personnel already are subject to some limits on the freedom of speech enjoyed by other Americans, on the basis of what courts have ruled is the vital mission of the military and the importance of order in the ranks. Service members can be tried in military courts, for example, for disrespecting senior officers, using indecent language or inciting others to abandon their duties.
Officials reviewing military rules on extremism, which do not reflect the amorphous, largely online nature of today’s far right, also are considering a move that would ban “mere membership” in such groups.
Some activists argue that the prohibitions should be more sweeping because, in their view, even interactions with extremists in an online forum, for example, constitute active participation in potentially violent movements.
“It’s not so much their opinion; it’s them being involved with other extremists,” said Mark Pitcavage, an expert on domestic extremism at the Anti-Defamation League, which tracks hate groups.
But Michael Berry, a former Marine Corps lawyer who is general counsel at First Liberty, a group focused on religious freedom, cautioned that the Pentagon could be inviting legal challenges.
“If you try to criminalize thoughts and beliefs, every defense attorney in the country is going to be doing cartwheels to try to line up clients,” Berry said.
Regulating spaces seen as linked to personal ideology could be politically difficult for the Pentagon, especially as some Republican lawmakers question the scope of the extremism problem.
Pentagon spokesman John Kirby said troops would not be penalized for their beliefs.
“This is not about being the thought police. It’s not about identifying you as an individual and what’s in between your ears,” he recently told reporters. “It’s about what you do with what’s between your ears. It’s about the behavior and the conduct that is inspired by or influenced by this kind of ideology.”
In some cases, courts have affirmed that troops retain “some measure” of free-speech rights. Charles Dunlap, a retired Air Force general who teaches at Duke University’s law school, said the military may be wary of expanding prohibitions, pointing to a 1967 case in which the Supreme Court ruled in favor of a civilian defense worker penalized for his membership in the Communist Party, saying the punishment infringed on his First Amendment right to association. The same might be true for uniformed personnel, he said.
“It is true that First Amendment rights can be more restricted for members of the military than for civilians,” Dunlap said in an email. “But the Court specifically observed in this case that ‘it would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties — the freedom of association — which makes the defense of the Nation worthwhile.’ ”
Mark Nevitt, a former Navy lawyer who teaches at the Syracuse University College of Law, pointed to other cases in which courts have characterized the military as a “specialized society separate from society.”
“Federal courts will likely provide a healthy dose of deference to the military if challenged, particularly if the military can link the new definition to the underlying military mission and good order and discipline,” he said.
Lawmakers who have spoken in favor of broader prohibitions include Rep. Jackie Speier (D-Calif.), who recently appealed to Biden to strengthen reviews of troops’ social media, and Rep. Anthony G. Brown (D-Md.), a former Army lawyer who as a lawmaker has advocated expanded restrictions.
Brown drew a line between troops’ affiliations with political organizations such as the Republican or Democratic parties and groups like the Proud Boys, a far-right organization with a history of violence. Some of its members took part in the Jan. 6 riot.
“Any time you raise the issue of restricting constitutional rights and protections, it is a big deal, and we should be thoughtful and mindful before we do that,” Brown said. “What I would offer in response is that the corrosive effect of participating in and membership in extremist groups is so great on military readiness, of good order and discipline, that this would be an instance where restricting First Amendment rights can be justified.”
Julie Tate contributed to this report.