Secretary of the Navy v. Avrech, 418 U.S. 676 (1974)

MR. JUSTICE DOUGLAS, dissenting.

Appellee was convicted of an attempt to publish a statement disloyal to the United States to members of the Armed Forces "with design to promote disloyalty and disaffection among the troops." Article 80 of the Uniform Code of Military Justice, 10 U.S.C. § 880, covers the attempt; and Art. 134, 10 U.S.C. § 934, covers the substantive offense.

Appellee was on active duty in Vietnam in a combat zone, and, like most soldiers on night duty, had a lot of time on his hands. He typed the following statement:

It seems to me that the South Vietnamese people could do a little for the defense of their country. Why should we go out and fight their battles while they sit home and complain about communist aggression. What are we, cannon fodder or human beings? . . . The United States has no business over here. This is a conflict between two different politically minded groups. Not a direct attack on the United States. . . . We have peace talks with North Vietnam and the V.C. That’s just fine and dandy, except how many men died in Vietnam the week they argued over the shape of the table? . . . Do we dare express our feelings and opinions with the threat of court-martial perpetually hanging over our heads? Are your opinions worth risking a court-martial? We must strive for peace, and, if not peace, then a complete U.S. withdrawal. We’ve been sitting ducks for too long. . . .

His plan was to have the mimeograph operator make copies which he could distribute. But the operator instead turned it over to a superior officer, and a court-martial followed. Appellee, a private first class, was reduced to the lowest enlisted grade, deprived of three months’ pay, and confined for one month to hard labor. The commanding officer suspended the confinement, and the remainder of the sentence was sustained on review. This suit, asserting federal rights, was brought on the ground, among other things, that he was punished for protected speech. I think that claim has merit; and I would affirm the Court of Appeals.

Soldiers, lounging around, speak carefully of officers who are within earshot. But in World War I, we were free to lambast General "Black Jack" Pershing who was distant, remote, and mythical. We also groused about the bankers’ war, the munitions makers’ war in which we had volunteered. What we said would have offended our military superiors. But since we could write our Congressmen or Senators about it, we saw no reason why we could not talk it out among ourselves.

Talk is, of course, incitement; but not all incitement leads to action. What appellee in this case wrote out with the purpose of showing to the marines in his unit might, if released, have created only revulsion. Or it might have produced a strong reaction. Conceivably, more might have shared his views. But he was not setting up a rendezvous for all who wanted to go AWOL or laying a dark plot against his superior officers. He was attempting to speak with his comrades in arms about the oppressive nature of the war they were fighting. His attempt, if successful, might at best have resulted in letters to his family or Congressman or Senators who might have read what he said to local people or have published the letters in newspapers or made them the subject of debate in legislative halls.

Secrecy and suppression of views which the Court today sanctions increases, rather than repels, the dangers of the world in which we live. I think full dedication to the spirit of the First Amendment is the real solvent of the dangers and tensions of the day. That philosophy may be hostile to many military minds. But it is time the Nation made clear that the military is not a system apart but lives under a Constitution that allows discussion of the great issues of the day, not merely the trivial ones -- subject to limitations as to time, place, or occasion, but never as to control.

The steps we take in Parker v. Levy, 417 U.S. 733, and in this case are backward steps measured by the standards of an open society.*

I dissent from a reversal of this judgment.