Some reports have surfaced of academic activities at U.S. JAG schools that would raise questions about academic freedom had they occurred in civilian institutions.
First, I spoke with one officer who was urged to not pursue an academic paper topic at one of the JAG schools because the viewpoint expressed was misaligned with JAG Corps preferences.
Next, I heard from an expert last year who was invited, then disinvited, from speaking at a JAG school, while a second speaker to the same event was not disinvited to the same event. Both had sterling qualifications. The difference was that the first had spoken out against the lawfulness of boat strikes and Venezuela and Iran invasions. The second had publicly spoken out in favor of those operations. The JAG school gave no reasons for the selective disinvite, but the circumstances indicate that it was based on viewpoints.
Finally, a few years ago, a civil society organization I am president of, the National Institute of Military Justice, was invited, then disinvited, from an academic event at a service JAG school. Again, no reason was given for the disinvitation except that higher-ups had ordered it, leaving us to conclude that it was based on our viewpoints on certain topics that are not in lockstep with those of JAG leadership.
Is this a First Amendment issue? Federal courts interpreting the Free Speech Clause ordinarily apply the very high standard of strict scrutiny when the government discriminates based on the content of speech or the viewpoint of the speaker. In the examples above, the circumstantial evidence seems strong that the government was discriminating based on the viewpoints of the speakers.
However, an exception to the high scrutiny given to content-based restrictions comes from the government speech doctrine. If the government is merely expressing its own views (government speech), then there is no restriction on speech at all, so strict scrutiny is avoided. Courts could find that the government speech doctrine applies to service JAG schools' selections of which speakers are heard and which topics their government students can write about. And because the JAG schools are military schools, courts could also draw from precedents such as Parker v. Levy that are more deferential to speech restrictions in military contexts.
While some viewpoint plasticity can be expected in the JAG schools from adminisration to administration as priorities change, have the JAG schools now gone too far?
There could be an issue with accrediting bodies. The American Bar Association has standards requiring its member institutions to adhere to standards of academic freedom, with the most pronounced exceptions available only for religious institutions. At least one service JAG school, the Army's in Charlottesville, Virginia, is ABA-accredited.
Another argument for JAG schools to embrace academic freedom is that it is in the self-interest of JAGs and the commanders who attend JAG courses to be exposed to robust debate over current national security issues of the day, and not just conform instruction to the political preferences of the current administration. When senior lawyers and officials in the George W. Bush administration unlawfully authorized and condoned detainee torture, JAGs were among those who courageously resisted. Had the service JAG schools not been able to openly debate these issues as they were occurring, this principled resistance may have been less likely to surface.
A policy of academic freedom would mean that on several of the most pressing issues the U.S. military faces today--the use of National Guard forces in U.S. cities, Article 2(4) of the UN Charter and the crime of aggression, the weight and meaning that should be afforded to Office of Legal Counsel opinions--JAG schools could deepen their students' appreciation of the issues by seeing them fully, not just receiving one side's gloss. To limit speakers and paper-writers to only expressing only pro-administration viewpoints may ultimately leave JAGs less prepared to perform their duties.
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