Military High Court: Racist Speech Not Criminal

Rebecca Boone, AP, July 16, 2008

A U.S. Army soldier who espoused racist views in an Internet profile was exercising his right to free speech, the U.S. Court of Appeals for the Armed Forces ruled Wednesday.

Nearly eight years ago, military prosecutors charged Pfc. Jeremy T. Wilcox with making statements online that discredited the Armed Forces and were detrimental to good order and discipline.

Wilcox was also accused of several other charges—including violating military rules by attending a Ku Klux Klan rally and encouraging participation in extremist organizations. Those charges were resolved separately and not part of the appeal to the Washington, D.C.-based military high court.

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At the conclusion of his court martial, Wilcox, who was originally from Idaho Falls, Idaho, but was serving with the 82nd Airborne Division in Fort Bragg, N.C., was sentenced to eight months confinement, a bad-conduct discharge, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The court decision did not indicate what portion of the sentence applied to the charges at issue in Wednesday’s ruling.

In a 4-to-1 decision, the military’s highest court found that Wilcox’s statements didn’t go far enough to justify criminal charges.

The investigator’s testimony showed that Wilcox “held beliefs that are both disturbing and inconsistent with Department of Defense policies regarding racial equality and other matters,” the high court found. But Wilcox’s defense lawyers were able to show that he had good working relationships with minorities in his unit, and that there was no evidence that his racist views adversely affected his military performance.

Though members of the military don’t have the same free speech rights as other civilians because their speech must be weighed against military interests, the court found that Wilcox’s statements were still protected. Wilcox thought he was making the statements to a like-minded civilian friend, not to his fellow soldiers, the court noted.

The court took special care to distance itself from Wilcox’s beliefs.

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The case now returns to the military Court of Criminal Appeals so Wilcox’s sentence can be reassessed.

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Chief Judge Andrew Effron and Judges Charles Erdmann, Scott Stucky and Margaret Ryan signed the majority opinion. Judge James Baker was the lone dissenter, contending that Wilcox’s behavior did discredit the service because it was contrary to military policy and values and could hurt recruiting efforts. Failing to punish that conduct suggests to the public that the military tolerates the poor behavior, Baker wrote.

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