VMI Cadet (FMS Alumnus) Examines First Amendment Rights for Military Members

By Marianne Hause, June 16, 2023

The First Amendment of the U.S. Constitution is considered to be the most important part of the Bill of Rights. It guarantees citizens the freedoms of speech, religion, press, assembly, and petition. The Constitution restricts the government from taking these rights away from ordinary citizens. However, when citizens take a commissioning oath or oath of enlistment into the military, they become subject to the Uniform Code of Military Justice (UCMJ), a set of laws that governs everything from the handling of enemy prisoners to the conduct of ordinary soldiers. Riley Malone ’25, a history major at Virginia Military Institute is examining the government policy on servicemembers, and how their First Amendment rights have changed from 1900 to the present in his 10-week Summer Undergraduate Research Institute (SURI) project titled, “True Faith and Allegiance: The First Amendment in the Military.”  

Malone, who has a vested interest in military law since he plans to commission into the Army upon graduating, became interested in the subject when he took a class called U.S. Constitutional History, taught by Lt. Col. Mark Boonshoft, associate professor and holder of the Conrad M. Hall ’65 Chair in American Constitutional History at VMI. “Before I took the class, I had not been aware of the differences between military and civil law. There are a lot of articles in the UCMJ that I didn’t understand, so I began to look into the history of it,” explained Malone.

According to Malone, the UCMJ puts restrictions on First Amendment rights such as speech and freedom of religion. “Officers can be charged for speaking ill of certain officials, including the president of the United States, elected state officials, and superior officers. Enlisted personnel can be charged for saying anything that violates ‘good order and discipline’ within the military. Such broad and restrictive laws would not be permissible in a civilian setting,” he said.

The military places heavy restrictions on fundamental rights for several reasons. It argues that UCMJ laws are fundamental to national security, and helps maintain civil-military relations, citing that it is vital the military remains subordinate to the civilian government, preventing conflict and a politicized military. Military and civilian courts have recently begun calling this reasoning into question.

 “I found it amazing that someone off duty can say something political, like any ordinary person, but since they are a part-time soldier, they can be punished and sentenced to hard labor,” said Malone. Though he concedes charges and convictions don’t happen often, since modern courts have become more lenient, when it does happen it is significant. “The most recent example I have looked at so far happened in 2003 when an Army officer refused to deploy for his unit’s assigned rotation to Operation Iraqi Freedom, and accused President Bush of starting the war illegally. The officer was charged with speaking ill of an elected official and disobeying a direct order.”

More recent cases he is examining include the January 6, 2021, incident at the U.S. Capitol building, where many veterans were in attendance, as well as a smaller group of active or reserve military members and national guardsmen. “Some of them were charged with conduct unbecoming of an officer and a gentleman or violating the no politics rule, and I want to see how that has been resolved,” said Malone.

Boonshoft who is serving as Malone’s advisor for the SURI project said, “Malone identified a question of perennial importance, but which is understudied by scholars. This research will make an important and timely contribution. Malone possesses a keen ability to pick up the nuances in judicial reasoning and a sharp sense for placing legal changes within their historical context, necessary skills for a project traversing law and history.”

Malone predicts he will have additional questions after the 10-week SURI session is over, so he plans to incorporate the project into his capstone and thesis for the Institute Honors program.

Malone graduated from Fishburne Military School in 2021 in Waynesboro, Virginia. He is the son of Jaime and Jerry Allen of Seattle, Washington, and the grandson of Patricia Waldrop of Austin, Texas. He is the training sergeant for VMI’s EMT agency, a member of the Ethics team, and vice president of the Phi Alpha Theta history honors society. Upon graduating, he hopes to become an aviation or infantry officer in the Army. Constitutional history is an area he would like to focus on after his military career.