Plaintiffs contend that the disloyal statement specification is unconstitutionally overbroad, both on its face and as applied to them. A law is overbroad "if in its reach it prohibits constitutionally protected conduct."
Plaintiffs contend that the reach of the specification abridges freedom of speech and expression protected by the First Amendment.
A threshold question must be the extent to which the First Amendment applies to members of the military service. The Court of Military Appeals has long recognized that the amendment does apply to military personnel
but has also indicated that military free speech is not as broad as that accorded civilians, being subject in the military to special limitations in the interests of good order and discipline.
This Court accepts the standard set forth by the Court of Military Appeals and will proceed to examine the issue of overbreadth on the presumption that speech "palpably prejudicial to good order and discipline"
may validly be proscribed consistent with the First Amendment.
The disloyal statement specification challenged here
has three basic elements: (1) a public utterance, which is (2) disloyal to the United States, and uttered with (3) design to promote disloyalty and disaffection among the troops and the civilian populace.
In construing these elements the Court of Military Appeals has held that (1) the alleged disloyalty must be to the United States as a sovereign political entity
and that (2) the utterance must have a palpable and direct effect on good order and discipline.
It is not necessary that the utterance be successful in provoking disloyalty,
and "a declaration of personal belief" can be found to have the requisite intent and effect.
It is in this light that the Court will proceed to examine the challenge for overbreadth.
Even where concededly important government interests are involved "it has become axiomatic that '[precision] of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438 [83 S. Ct. 328, 340, 9 L. Ed. 2d 405] (1963) . . ." U.S. v. Robel, 389 U.S. 258, 265, 88 S. Ct. 419, 424, 19 L. Ed. 2d 508 (1967). It is not necessary to "balance" the substantial competing interests involved where a decision can be reached on the scope of the means chosen by the Government to achieve an admittedly legitimate goal.
Here the goal is military order and discipline. The disloyal statement specification concededly reaches some speech which would clearly be to the prejudice of military order and validly subject to prohibition. But the specification may also reach many statements not validly subject to military proscription, and therein lies its fatal flaw of overbreadth. The overbreadth lies, as does the vagueness, in the ambiguity of the word disloyal. The soldier is put at his peril that a statement, especially a controversial or political statement, may be taken by some, including a jury, to be disloyal and thus designed to encourage disloyal thoughts or "disaffection." "When one must guess what conduct or utterance may lose him his position, one necessarily will 'steer far wider of the unlawful zone . . .' . . . For '[the] threat of sanctions may deter . . . almost as potently as the actual application of sanctions.' . . . The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform . . . what is being proscribed." Keyishian v. Board of Regents, 385 U.S. 589, 604, 87 S. Ct. 675, 684, 17 L. Ed. 2d 629 (1967) (citations omitted).
Military personnel retain their basic rights and freedoms as American citizens, subject only to those limitations necessary in the interests of good order and discipline, the unique components of their specialized environment. They retain their political freedoms, their right to hold their own views on all political matters. It is not inconceivable, indeed it is probable, that United States military policies, both foreign and domestic, will often become political issues. The Vietnam war has unfortunately been one of the great political issues of our time. Yet is one of the highest values of our society that all citizens are able to examine all issues, come to their own conclusions, and freely discuss and express their views. It is not suggested that soldiers can hold political discussions on the drill field or elsewhere while on duty, but in their off-duty hours, in barracks "bull sessions", and even in leaflets,
they can express their views on political issues, so long as they do not directly prejudice good order and discipline. While soldiers can be compelled to obey orders, they can not be compelled to an ideological orthodoxy prescribed by their superior officers.
Military discipline is a unique phenomenon. This Court recognizes the military interest in the morale and motivation of the troops. It is further recognized that the military is a specialized organization, one whose efficiency may at times be vital to the national interest. The problem is to reconcile this interest with the First Amendment rights of the participants.
Accepting the view of the Court of Military Appeals, as this Court has, that the First Amendment freedom of speech applies to the military only to the extent that the speech does not directly prejudice good order and discipline, that limited standard of freedom must be vigorously guarded as a precious constitutional right. Strictly speaking, every statement critical of a military program or policy can have an effect on attitudes and morale, which can arguably affect in turn order and discipline. Yet the argument simply cannot be accepted consistent with even a limited First Amendment freedom that military authorities can, therefore, punish all statements deemed to adversely affect "motivation" or "morale" in a general sense. For this would render meaningless even that limited freedom of speech recognized by the military as a soldier's constitutional right. Indeed, Article 134 by its terms requires prejudice to good order and discipline, not simply to a generalized "morale" of service. Order and discipline are essentially terms referring to conduct, while morale refers to thoughts and attitudes. Conduct and motivation are obviously interrelated, but the distinction is present and it must be preserved. Article 134 would be too broad, and the First Amendment too narrow, if all words and deeds of a soldier were subject to punishment on the grounds that they adversely affected the intangible morale of the service.
The classic statement of the opposite view was expressed by Judge Latimer in United States v. Voorhees, 4 U.S.C.M.A. 509, 533 (1954):
No man willingly lays down his life for a national cause which he is led to believe is unsound or unjust. Yet implicit in military life is the concept that he who so serves must be prepared to do so. If morale and discipline are destroyed, our forces cannot be trained adequately, and the nation must necessarily fail in battle.