As multiple service members are facing investigation or suspension for posts on social media critical of Charlie Kirk, experts told CNN there are legal roadblocks to the military actually taking significant action against them.
A slew of accounts on X began posting screenshots of social media posts made by troops across the military services who were critical of Kirk and accused of mocking or celebrating his death. The accounts relentlessly tagged Defense Secretary Pete Hegseth and other senior Pentagon officials to get their attention, calling for the service members to be fired.
On Thursday, Hegseth and the secretaries of the Army, Air Force and Navy posted similar comments promising action would be taken against inappropriate posts.
“The Department of War maintains a zero-tolerance policy for military personnel or DOW civilians who celebrate or mock the assassination of Charlie Kirk,” the Pentagon‘s Rapid Response account on X said, referencing the Defense Department’s secondary title as Department of War.
It’s unclear how many service members have been suspended or are now being investigated; but at least one Marine has been relieved of their duties while an investigation is carried out, according to a Marine Corps spokesman, and an Army officer has been suspended, according to an official familiar with the situation.
But the legal authority for the military to take action against individuals for posts about public figures is murky.
Don Christensen, a retired Air Force colonel who previously served as a military judge and the Air Force’s chief prosecutor, told CNN that service members could potentially be removed from their jobs, but that there is no legal standing for pressing charges against them under the Uniform Code of Military Justice.
“People who join the military have less First Amendment rights than those who don’t, but they still have robust First Amendment rights,” Christen said. And while there are exceptions for making disparaging remarks about the chain of command or political statements in uniform, Christensen added, there’s not a carve-out “that says Pete Hegseth doesn’t like what you’re saying so I’m going to prosecute you.”
While some officials and accounts advocating for action to be taken have pointed to Articles 133 and 134 of the UCMJ, the argument for each could be more complicated. In order for Article 133 to be warranted — which prohibits conduct unbecoming of an officer — Christensen said it requires that someone “be on notice that their conduct would be a violation.”
“You can’t just say out of the blue, ‘If you say something on social media about Charlie Kirk that Pete Hegseth doesn’t like, that’s a crime,’” Christensen said.
Article 134 is a broader piece of the UCMJ largely covering conduct not covered elsewhere that punishes troops for behavior that harms good order and discipline in the armed services or brings discredit upon the military. Rachel VanLandingham, a former Air Force judge advocate and current law professor at Southwestern Law School, said the article is often too broad and “provide for the government to really be the thought police against ideas that they don’t like, against service members.”
Still, Eugene R. Fidell, a senior research scholar at Yale Law School who has taught national security law, pointed to a 2008 ruling in the case of a US Army private who was charged under Article 134 for attending a Ku Klux Klan rally and advocating for anti-government and racist sentiments. The United States Court of Appeals for the Armed Forces ruled that while they disagreed with his comments, it was protected speech that did not have a firm enough connection to the military to have impacted good order and discipline.
“People have a right to speak, even if it’s annoying, even if it’s sick-making, even if it’s nasty, even if it’s mean-spirited,” Fidell said. “So I think that the possibility that anyone would be successfully prosecuted under UCMJ or otherwise disciplined I would have to say is very remote … but that’s not to say this administration won’t try.”
Indeed, the appetite for action was apparent in social media posts throughout the weekend.
Stephen Simmons, the Deputy Assistant Secretary of Defense for Military Community and Family Policy, said service members posting disparagingly about Kirk were violating their oath to the constitution, and said Hegseth “knows (as do we all) that this cancer that desecrates the constitution – and the people for whom it was written – must be neutralized.”
Under Secretary of the Air Force Matt Lohmeier said Saturday that in the case of one airman, he asked senior military leaders “to read the member his rights, and place him and his entire chain of command under investigation.”
“What I have seen is, at a minimum, a violation of Article 134 of the UCMJ. … Men and women who are guilty of this kind of behavior will not serve in uniform,” Lohmeier said, editing the post moments later to say the “veracity of the accounts and this conduct must be confirmed.”
The officials’ comments, as well as those made by Hegseth, could raise the argument of unlawful command influence, Christensen and Fidell said. Christensen said if he was defending a service member against those charges, unlawful command influence is one of the three primary arguments he would make.
“The more the Secretary and others in authority speak out on this, the more issues are going to be generated if or when they’re brought to trial,” Fidell said.
VanLandingham agreed — but also said disciplining service members for their posts wouldn’t necessarily need the services to bring charges against them under the UCMJ, it could be accomplished through removing them from their jobs, or even potentially discharging them, though their discharge would typically be assessed by a review board first.
“It doesn’t matter unless there’s a court martial,” VanLandingham said of the question of command influence. “It’s a chilling effect – the damage is already done.”