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lite.cnn.com - on gopher - inofficial
ARTICLE VIEW:
Experts say Pentagon faces roadblocks to severely punishing service
members for disparaging Charlie Kirk
By Haley Britzky, CNN
Updated:
6:38 PM EDT, Mon September 15, 2025
Source: CNN
As multiple service members are facing investigation or suspension for
posts on social media critical of , experts told CNN there are legal
roadblocks to the military actually taking significant action against
them.
A slew of accounts on X began posting screenshots of social media posts
made by troops across the military services who were critical of Kirk
and accused of mocking or celebrating his death. The accounts
relentlessly tagged Defense Secretary Pete Hegseth and other senior
Pentagon officials to get their attention, calling for the service
members to be fired.
On Thursday, Hegseth and the secretaries of the Army, Air Force and
Navy posted similar comments promising action would be taken against
inappropriate posts.
“The Department of War maintains a zero-tolerance policy for military
personnel or DOW civilians who celebrate or mock the assassination of
Charlie Kirk,” the Pentagon‘s Rapid Response account on X said,
referencing the Defense Department’s secondary title as Department of
War.
It’s unclear how many service members have been suspended or are now
being investigated; but at least one Marine has been relieved of their
duties while an investigation is carried out, according to a Marine
Corps spokesman, and an Army officer has been suspended, according to
an official familiar with the situation.
But the legal authority for the military to take action against
individuals for posts about public figures is murky.
Don Christensen, a retired Air Force colonel who previously served as a
military judge and the Air Force’s chief prosecutor, told CNN that
service members could potentially be removed from their jobs, but that
there is no legal standing for pressing charges against them under the
Uniform Code of Military Justice.
“People who join the military have less First Amendment rights than
those who don’t, but they still have robust First Amendment
rights,” Christen said. And while there are exceptions for making
disparaging remarks about the chain of command or political statements
in uniform, Christensen added, there’s not a carve-out “that says
Pete Hegseth doesn’t like what you’re saying so I’m going to
prosecute you.”
While some officials and accounts advocating for action to be taken
have pointed to Articles 133 and 134 of the UCMJ, the argument for each
could be more complicated. In order for Article 133 to be warranted —
which prohibits conduct unbecoming of an officer — Christensen said
it requires that someone “be on notice that their conduct would be a
violation.”
“You can’t just say out of the blue, ‘If you say something on
social media about Charlie Kirk that Pete Hegseth doesn’t like,
that’s a crime,’” Christensen said.
Article 134 is a broader piece of the UCMJ largely covering conduct not
covered elsewhere that punishes troops for behavior that harms good
order and discipline in the armed services or brings discredit upon the
military. Rachel VanLandingham, a former Air Force judge advocate and
current law professor at Southwestern Law School, said the article is
often too broad and “provide for the government to really be the
thought police against ideas that they don’t like, against service
members.”
Still, Eugene R. Fidell, a senior research scholar at Yale Law School
who has taught national security law, pointed to a 2008 ruling in the
case of a US Army private who was charged under Article 134 for
attending a Ku Klux Klan rally and advocating for anti-government and
racist sentiments. The United States Court of Appeals for the Armed
Forces ruled that while they disagreed with his comments, it was
protected speech that did not have a firm enough connection to the
military to have impacted good order and discipline.
“People have a right to speak, even if it’s annoying, even if
it’s sick-making, even if it’s nasty, even if it’s
mean-spirited,” Fidell said. “So I think that the possibility that
anyone would be successfully prosecuted under UCMJ or otherwise
disciplined I would have to say is very remote … but that’s not to
say this administration won’t try.”
Indeed, the appetite for action was apparent in social media posts
throughout the weekend.
Stephen Simmons, the Deputy Assistant Secretary of Defense for Military
Community and Family Policy, said service members posting disparagingly
about Kirk were violating their oath to the constitution, and said
Hegseth “knows (as do we all) that this cancer that desecrates the
constitution - and the people for whom it was written - must be
neutralized.”
Under Secretary of the Air Force Matt Lohmeier said Saturday that in
the case of one airman, he asked senior military leaders “to read the
member his rights, and place him and his entire chain of command under
investigation.”
“What I have seen is, at a minimum, a violation of Article 134 of the
UCMJ. … Men and women who are guilty of this kind of behavior will
not serve in uniform,” Lohmeier said, editing the post moments later
to say the “veracity of the accounts and this conduct must be
confirmed.”
The officials’ comments, as well as those made by Hegseth, could
raise the argument of unlawful command influence, Christensen and
Fidell said. Christensen said if he was defending a service member
against those charges, unlawful command influence is one of the three
primary arguments he would make.
“The more the Secretary and others in authority speak out on this,
the more issues are going to be generated if or when they’re brought
to trial,” Fidell said.
VanLandingham agreed — but also said disciplining service members for
their posts wouldn’t necessarily need the services to bring charges
against them under the UCMJ, it could be accomplished through removing
them from their jobs, or even potentially discharging them, though
their discharge would typically be assessed by a review board first.
“It doesn’t matter unless there’s a court martial,”
VanLandingham said of the question of command influence. “It’s a
chilling effect – the damage is already done.”
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