Cadets at West Point have right to express themselves politically

By Noah Feldman

Bloomberg View

Should female African-American cadets at West Point be punished for posing for a photograph with their fists raised? Most discussion so far has focused on the contemporary meaning of the gesture and whether it’s a political statement of solidarity with the Black Lives Matter movement.

But there’s a further free-speech question that must also be answered: How much leeway should members of the uniformed, active-duty military have to express themselves – photographically, politically or otherwise? The best answer, grounded in military regulations and the First Amendment, indicates that the cadets have not violated the letter or spirit of the law and should not be subject to sanction.

Start with the cultural question. The cadets’ critics say that the women violated military regulations against making a political statement while in uniform.

The defenders downplay the political meaning of the salute, emphasizing the women’s justifiable pride at having made it through the rigors of the U.S. Military Academy. As one West Point graduate put it: “These ladies weren’t raising their fist to say Black Panthers. They were raising it to say Beyonce.”

Meaning of symbols

In that way, the debate highlights the change that can take place in the meaning of symbols. The salute as practiced by the Black Panthers or, iconically, by two 1968 U.S. Olympians, certainly doesn’t have the same symbolic force today that it did nearly half a century ago.

But the debate over the salute’s meaning shouldn’t be binary, as though the only possibilities were specific identification with Black Lives Matter or apolitical self-congratulation.

After all, we can’t even be sure what, exactly, Beyonce meant by raising the salute in her Super Bowl halftime performance in February. Was it a gesture of solidarity with a political movement? An invocation of black women’s pride? Or a savvy appropriation of both?

The point is that the boundary between personal self- expression and political affiliation can be porous. There are 16 women in the West Point photo. Their expressions differ markedly. We can’t know what the salute meant to each of them. Nor does the photo have a single meaning when understood by different sectors of the public.

The indeterminacy of the salute’s meaning should direct our attention to the rules that govern free speech while in uniform. Two Department of Defense documents are especially relevant.

One, directive 1334.10, or “Political Activities by Members of the Armed Forces,” makes a subtle set of rules intended to allow active-duty soldiers to function as citizens while simultaneously avoiding the impression that the military supports or sanctions particular activities or candidates for office. In particular it prohibits partisan political campaigning or fundraising in connection with elections, including marching in a “partisan political parade,” whether in uniform or otherwise.

Party political candidates

It’s worth emphasizing that this directive goes out of its way to prohibit activities connected to party political candidates and elections. It doesn’t prohibit marching in parades generally, including parades that might have a political meaning. After all, the U.S. military marches the presidential inaugurations, which are certainly political in a sense. Active-duty military appear in uniform at sports events and various public ceremonies, all of which have political meaning.

The other document, instruction 1334.01, titled “The Wearing of the Uniform,” is a bit different. It first says that the uniform may never be worn at any meeting of an organization deemed “totalitarian, fascist, communist, or subversive.”

It then sets a policy against the wearing of the military uniform “in connection with furthering political activities when an inference of official sponsorship for the activity or interest may be drawn.” Similarly, it prohibits wearing the uniform while “participating in activities such as unofficial public speeches, interviews, picket lines, marches, rallies or any public demonstration, which may imply Service sanction of the cause.”

Note that these carefully drawn policies don’t ban wearing the uniform in connection with nonpartisan political activities that aren’t subversive of the Constitution, unless it would create a message of military sponsorship or sanction.

The fairest reading of these regulations is that the West Point 16 didn’t break military rules – even if you think they meant to express solidarity with Black Lives Matter. The movement isn’t partisan, the target of the first directive.

Personal expressions

And the women didn’t violate the letter or the spirit of the instruction, which sets out to prohibit wearing the uniform in a context that suggests that the U.S. military supports a given political movement. No one would look at the photo and think the whole military endorses Black Lives Matter. The photo is clearly the expression of the particular cadets.

What’s more, it’s a good thing that military regulations should be understood to protect the cadets’ speech, not punish it. In general, the military gets special deference from the courts when it comes to the individual constitutional rights of active duty personnel. That’s appropriate, since effective national security is a compelling national interest.

But citizen-soldiers are both soldiers and citizens. As citizens, they retain the right to express themselves in ways that don’t impinge on the military’s capacity to function effectively. That includes the right comment on matters of public importance.

For historic reasons, expressions of fascism are different. If soldiers are photographed giving a Nazi salute, that’s a direct violation of the department instruction and should be treated accordingly. But Black Lives Matter isn’t a subversive movement. The cadets shouldn’t be sanctioned – regardless of the meaning that they or we attach to their salute.

Noah Feldman is a Bloomberg View columnist. Distributed by Tribune Content Agency, LLC.