When speech is not free

An active-duty U.S. Army officer could face court-martial and time in the guardhouse for his use of social media to vilify his superiors and promote communism. 2nd Lt. Spenser Rapone, a 2016 U.S. Military Academy graduate, is under investigation for posts that include a July tweet stating he would “happily dance” on the grave of Sen. John McCain, R-Ariz.

One tweet included #VeteransForKaepernick, referring to former San Francisco 49ers quarterback Colin Kaepernick, who last year was the first to take a knee during the playing of the national anthem at an NFL game.

Rapone’s actions throw into stark contrast the free speech liberties of American civilians and military personnel. The Uniform Military Code of Justice (UMCJ) prohibits “contempt toward officials.” Civilians can publicly rage against elected representatives, but commissioned officers who do so can face UMCJ charges.

“Your right of free speech is not as robust as if you were a civilian,” said Michael Berry, a former Marine judge advocate general who now serves as an attorney for First Liberty.

Berry and First Liberty specialize in defending religious liberty protections for members of the military. The key to religious liberty and free speech protections for service members comes down to balancing constitutional rights and the need for military uniformity, Berry said.

Rapone’s expletive-laden posts on Twitter and Facebook as recently as last week came to the attention of his commanding officers in the 10th Mountain Division at Fort Drum, N.Y., prompting the investigation.

Facebook posts show Rapone sporting a Che Guevara–emblazoned T-shirt under his West Point uniform. In another photo, he stands in uniform and, with raised fist, reveals a message scrawled on the underside of his hat: “Communism will win.”

While the uniform violations could earn the officer minor disciplinary action, Rapone crossed a line with his “vile and reprehensible statements” about his civilian and military commanders, Berry said.

In an August tweet, Rapone called Vice President Mike Pence an “[obscenity] medieval, cold-blooded killer” and Defense Secretary James Mattis “definitely the most vile, [obscenity] in the current administration.”

Although Rapone graduated from West Point last year, officials at the academy responded to the revelations by noting service members “are prohibited from engaging in certain expressions of political speech in uniform.”

By lauding Kaepernick, Rapone—perhaps unintentionally—illustrated a “weird” juxtaposition of military judicial code and the NFL’s collective bargaining agreement, Berry said. Both organizations require fidelity to a code in order to create and maintain uniformity.

Those wearing one uniform have paid the high price for free speech so those wearing a different uniform can speak freely.

Free speech and Friday night lights

When a Bossier Parish, La., high school principal last week warned the school’s football players that anyone taking a knee during the playing of the national anthem at Friday’s game could get suspended from the team, the American Civil Liberties Union (ACLU) of Louisiana quickly responded to correct him. Citing the seminal 1943 Supreme Court decision in West Virginia State Board of Education v. Barnette, the civil rights group reminded district administrators that students cannot be compelled to stand for “patriotic rituals.”

But five years earlier, when Kountze (Texas) High School cheerleaders painted Bible verses on spirit signs, the ACLU did not defend the cheerleaders with Supreme Court precedent. Instead, it declared their speech unconstitutional and filed a friend-of-the-court brief in Kountze v. Matthews, the school district’s lawsuit against its own students.

The civil rights organization’s selective application of the Constitution reveals its anti-religious bias. In defending football players’ right to take a knee, the ACLU of Louisiana said students are not “mouthpieces of government speech” and the “schools should respect students who embrace their constitutional rights and stand up to injustice—not punish them.”

But in Texas, the ACLU declared the banners “school-sponsored” speech in violation of the Establishment Clause of the First Amendment.

The courts disagreed.

In a ruling on the cheerleaders’ case last week, Texas appeals court Judge Charles Kreger cited a case the ACLU ignored, Tinker v. Des Moines Independent Community School District. Kreger called it one of the most important decisions in Supreme Court history in addressing students’ free speech rights.

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the high court wrote in its 1969 decision.

Across the nation Friday night, some high school football players took a knee during the national anthem. Some faced discipline, and lawsuits probably will follow. The players in Bossier Parish stood arm-in-arm, according to The Washington Post. In Kountze, the cheerleaders rallied enthusiasm for their team with added confidence, knowing they could declare their ability to do all things through Christ who strengthens them, without interference from school officials. —B.P.

Restaurant dishes up discrimination?

A woman whose Apostolic Pentecostal faith prohibits her from wearing pants claims a Mississippi-based restaurant chain fired her after she showed up for her first day of work wearing a denim skirt instead of the requisite blue jeans. Following a failed conciliation process, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit Sept. 25 alleging restaurant company Georgia Blue violated the Civil Rights Act by not providing Kaetoya Watkins a religious accommodation.

After the company hired Watkins as a server in October 2015, she discovered the dress code required her to wear jeans. She asked if she could wear a long skirt instead and, receiving no guidance from her employer before her first day on the job, arrived at the restaurant in a skirt. The Georgia Blue manager sent her home and later notified her via voicemail that the dress code could not be altered and she had been fired.

J. William Manuel, an attorney for Georgia Blue, which has four restaurants and a bakery in Mississippi, denied the Civil Rights violation allegations and said the company will defend itself against damages sought by the EEOC on Watkins’ behalf.

The EEOC is seeking lost wages, compensatory and punitive damages, and injunctive relief prohibiting Georgia Blue from future religious discrimination. —B.P.

Defining marriage without punishment

A 2016 Mississippi law providing religious accommodations for government employees and private business owners will take effect Friday despite pending legal challenges. The 5th U.S. Circuit Court of Appeals on Friday denied a request for an en banc, full court hearing to keep an injunction against the law in place.

Attorneys representing gay rights advocates call the law discriminatory and insist they will appeal the two cases, Barber v. Bryant and Campaign for Southern Equity v. Bryant, to the U.S. Supreme Court.

The new law declares, “The state government shall not take any discriminatory action” against persons who act in accordance with certain beliefs: Marriage is a union of only one man and one woman, sexual relations should be reserved for marriage, and biological sex is immutable.

Legislators intended the law to protect Mississippians involved in the wedding industry—whether private business owners or government employees—from government sanctions for refusing to participate in same-sex marriage ceremonies.

Gay rights advocates immediately challenged the law, and a federal judge placed an injunction on its application. A three-judge panel of the 5th Circuit overturned the injunction in June, and the court denied the appeal to the full panel on Friday. —B.P.

Florida ministry dismisses case against GuideStar

D. James Kennedy Ministries of Fort Lauderdale, Fla., withdrew two complaints against GuideStar, a database of U.S. charities, in its ongoing defamation lawsuit against the Southern Poverty Law Center (SPLC). In its response to the lawsuit, GuideStar demonstrated it did not “act as a conduit” in disseminating the allegedly libelous information, an attorney for the ministry told me.

The lawsuit, Coral Ridge Ministries Media v. Amazon, filed Aug. 23, alleges SPLC’s “hate group” label for organizations that promote a Biblical view of human sexuality is libelous and has caused financial harm to the Florida-based ministry. The suit named GuideStar, Amazon, and Amazon Smile as co-defendants for perpetuating the “hate group” label. The SPLC has moved to dismiss the case, claiming the ministry has no valid claim against it. —B.P.