On the Freedom of a Soldier

Note: The following represents my personal views pursuant to the 1st Amendment of the United States Constitution and in no way represents the views of the US Army or the Colorado National Guard.

The oath of enlistment for the Colorado National Guard is as follows:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and of the State of Colorado against all enemies, foreign and domestic; that I will bear true faith and allegiance to them; and that I will obey the orders of the President of the United States and the Governor of Colorado and the orders of the officers appointed over me, according to law and regulations. So help me God.

I swore this oath in 2000. I believed it then. I believe it more strongly now.

True faith and allegiance to the Constitution involves supporting in deed and spirit the principles of freedom of religion, speech, and assembly as described in the First Amendment of the Constitution – the supreme law that subjugates all federal and state law (see the supremacy clause). It is in pursuit of keeping this oath that I write to reveal what recently happened to me.

In December of 2022, military leadership violated my civil rights by punishing me under military law because they disagreed with the content of my constitutionally protected personal views, expressed while an off-duty civilian. These leaders acted under the presumption that loosely defined military laws against “service discrediting” behavior grant them the power to judge what off-duty expression runs counter to their interpretation of the aspirational Army Values (which are not laws but slogans and mottos) and effectively cancel the Constitutional liberties of their subordinates.

What Did You Say?

For the following (paraphrased) statements made on a March 2022 podcast, I was demoted (suspended pending “good” behavior) and officially labeled a racist, along with my integrity, judgment, and professionalism being officially denigrated in a memo of reprimand:

“[Kamala Harris] is so, so stupid. I can’t believe how stupid she is.”

“I don’t see the evidence that George Floyd was targeted because of his race.”

“Racial twauma.” (my mocking mispronunciation was apparently determined to be racist)

Can You Say That in Uniform?

While any rights-affirming American will immediately recognize the above statements as fully protected under the Constitution, understandable questions arise as to the application of First Amendment liberties to the military environment. Fortunately, the United States Court of Appeals for the Armed Forces (CAAF) has made it clear in its recent ruling on United States v. Wilcox that military punishment of speech (on or off duty) involves determining both whether the speech is ordinarily protected (like mine was), and then if the speech itself (not the speaker) has a “reasonably direct and palpable connection to the military mission or military environment” (my speech clearly did not).

As I was inadvertently identified as a military member at the beginning of the video, I added a requested disclaimer to the video’s description similar to the one at the top of this article (despite such a disclaimer not actually being legally required in this circumstance). In response to the disclaimer, the military investigation helpfully clarified that it was not the context of the speech (my military affiliation) that warranted punishment, but the content of the speech (a particularly egregious and offensive violation of the First Amendment known as viewpoint discrimination). For example, if I had said, “[Kamala] is so, so smart. I can’t believe how smart she is,” I would not have faced punishment even if I had been in uniform standing in front of a tank. Of course, I wasn’t. I was at home, off-duty, in civilian clothes, and merely responded to a question I was asked about my military affiliation before moving on to the actual subject matter being discussed.

How Did This Happen?

Yep, you read that right. Wilhelm was so butt-hurt (to use a crass military term) over what he disagreed with that he sent a mischaracterized, lying email to the military about my religious and political speech in an attempt to see me punished, my military career tarnished, and my family harmed both financially and emotionally by false accusations of racism.

I can overlook Todd not knowing that National Guard members are not under UCMJ and enlisted members are not subject to regulations governing commissioned officers, thus making every one of his opinions entirely invalid. What I cannot overlook is Todd (a man who enjoys free speech rights and the open exchange of controversial ideas) deciding that his disagreement with another’s views justified attempting to strip them of their Constitutional liberties and ruin their career. Nor can I overlook Todd lying to government officials in his email to try to accomplish this. Todd claimed that I stated the George Floyd murder was not racist. Even though that view is perfectly protected and reasonable, it is not what I said. Todd claimed that I “made fun of a black man” despite me never referring to Kyle Howard’s race. Also, Howard has stated repeatedly that he does not have a speech impediment but a “trans-racial” accent (an error Todd bent over backward in his article to apologize for).

Yet what Todd intended for evil, God can and will use for good. There is real and ongoing harm to myself and my family. Military officials smearing me as a racist and declaring I cannot be relied upon to treat fellow service members equally and fairly was clear retaliation based on my exercising Constitutional liberty to express the same conclusion about George Floyd expressed by Minnesota attorney general Keith Ellison (who prosecuted the Floyd case), a common political view on an elected Vice President, and a mocking imitation of a long-documented, hateful racist. The US government has labeled me a racist and punished me because military leaders disagreed with my views – a textbook case of violating the Constitution and their oath of office.

Note: A previously published version of this op-ed referred to me contacting Dee Parsons at the Wartburg Watch to ask about what Todd had done, with a screenshot of the Twitter DM I believed was ignored. She informed us that she had not seen my Twitter DM. I am truly glad to hear this, believe her of course, and have removed the paragraph and screenshot.

Following Kennedy to Court

Much like my case, Kennedy’s supposedly violative First Amendment behavior came to the attention of military leadership by way of online journalism. In his case, the Denver Post published a June 3rd, 2020 op-ed he wrote that recounted his experience in the protest and voiced progressive political views from a personal perspective. Ironically, it was Kennedy’s disclaimer identifying him as a military member whose views were his own (in keeping with the military’s disclaimer request) that brought his participation to the attention of the military, and he was issued a reprimand on the basis that he should have known violence was likely to occur at the protest (a facially unfalsifiable standard).

In response, Kennedy wrote a follow-up op-ed in July discussing the investigation into his protest participation, which prompted another investigation – this time with leadership concluding that he violated Colorado military law by “bringing disrepute and dishonor upon the COARNG (Colorado Army National Guard)” on the basis of Kennedy’s published pushback, which appealed to his Constitutional right to protest:

…there is nothing wrong with a part-time National Guard member writing a letter to the editor or op-ed, participating in a peaceful protest, or exercising any constitutional right, on their own time and dime. That is why investigations into free speech — yes, including criticizing Trump for threatening to “dominate” peaceful protesters — are so constitutionally appalling.

After 18 months of administrative wrangling and Kennedy filing a civil rights lawsuit in federal court (which triggered yet another military investigation), the administrative punishments against Kennedy were eventually reversed by the Department of the Army Suitability Evaluation Board – a rebuke of the actions of Colorado military leadership Kennedy called “a victory for the First Amendment.” Kennedy’s transfer to the Army Reserves in Virginia and the military’s removal of all negative actions against him eventually rendered his federal lawsuit moot, yet the court wrote in its dismissal that, “The Court takes as true Plaintiff’s allegations that the National Guard Defendants set out to indirectly end his military career via the Personnel Actions in retaliation for the content of his political speech.” In other words, military leaders determining the content of Kennedy’s political speech (his op-ed discussing the protest and the later one openly questioning National Guard leadership) amounted to “bringing disrepute and dishonor upon the military” was instead determined by the court to be retaliation because they didn’t like what he said.

Next Steps

As I remain a faithfully serving member of the Colorado Army National Guard, recently punished for the content of my protected, off-duty speech, I am currently serving under the chilling effect of knowing that at any time, the expression of a government-disfavored religious and/or political view (quite possibly including this article) may result in further punishment, financial and reputational harm, and emotional turmoil for my family, who up until the last few years had been proud supporters of the military service yet now feel betrayed.

I am currently seeking legal representation to assist as we pursue legal action via the same federal district court that adjudicated the Kennedy complaint, seeking injunctive relief against the Constitutionally-violative, overbroad application of Colorado military law and compensatory damages related to the irreparable harm done to my career, reputation, and family. Any damages recovered will be used to defend the free speech rights of service members who face similar persecution.

This op-ed amounts to a whistleblowing of sorts. Not an official whistleblower submission (which is required to be submitted to certain officials), but a revelation and discussion that I believe brings credit and honor to my military service and that of my fellow service members who are similarly devoted to upholding and defending the Constitution. As my ideological counterpart Alan Kennedy aptly wrote, “It’s just common sense to me that you don’t lose your constitutional rights just because you take an oath to defend them.”

Note: If you are a free speech litigator interested in helping with this case, please DM me on Twitter.

Bully Pew podcast discussing the issue:

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