Seizing Speech

Alaska Senate candidate Joe Miller's privately security detail apparently handcuffed a journalist for attempting to interview Mr. Miller. This happened over the weekend, and I was writing a post about the incident bemoaning the lack of respect for agents of the people who are attempting to pull back the curtain and familiarize the people with political elites. This would have been a pretty boring rant, so I shelved it. Following the golden rule that any story left unwritten gets better, it turns out that the private guards were actually active duty military personnel moonlighting as security guards.

I had originally shelved the post because there was no legal issue. Private citizens basically assaulted someone, but there was no constitutional question, as the first amendment only binds the federal government and (through 14th amendment incorporation) the states. Now that officers of the federal government are involved, there is a larger problem here.

Glenn Greenwald notes that military personnel are banned from partisan political activity by DoD directive. Every governmental agency that I know prohibits its agents from engaging in partisan politics on its time. Military personnel, like police officers, are cloaked more encompassingly cloaked with the authority of the state than desk clerks. If the state trains a person to use force as its agent, it has separated it from the general populace. The investment of legitimate force on an individual abrogates that individual's political rights.

Having typed that paragraph in defense of DoD directives prohibiting partisan political action on behalf of active-duty military, I have to acknowledge that this directive clearly prevents military personnel from practicing first amendment rights of association and speech. Any governmental act which infringes on these political rights is subject to strict scrutiny; there must be a compelling state interest which the state achieves in the most narrowly tailored way.

This case exemplifies a more basic reason to prevent active duty military from engaging in partisan political endeavors. Forcible detainment of a journalist is a travesty, but military personnel are involved in forcibly detaining a journalist, it is a serious constitutional problem. American power is besmirched as being repressive when no orders issued from the chain of command to engage in distinctly problematic anti-democratic actions. This is embarrassing, and it has a serious chilling effect on political speech. The threat of force against journalists is characteristic of failed states. However, there isn't a remedy against people who willfully block the access of a journalist, and therefore the public, to the politicians who seek to represent them. When a government has an affiliation with a person who engages in anti-democratic acts, however, there is some possibility of prevention. The DoD regulation is, I think, if applied to this instance, a proper injunction against interference in democratic proces by a person who is vested with the power to use force in pursuance with the government's interests. The commingling of force with association rights is problematic, and it sugests that we are entering an area in which First Amendment freedoms are less important than the right of the body politic to conduct itself peacefully without interference. The individuals in this instance acted dishonorably, and a court martial might reasonably punish them for their behavior.