In a recent revision to DoD Instruction 1325.06 “Handling Protest, Extremist, and Criminal Gang Activities Among Members of the Armed Forces”, a change in definition, while somewhat buried in verbiage, could cause service members who engage in social media exchanges supporting extremist behavior to lose both their security clearance and job.
DoD Instruction on Extremism Activity for Military Personnel
The Countering Extremist Activity Working Group (CEAWG) that Secretary of Defense Lloyd Austin created to examine extremist behavior in the military and defense contracting communities, brought about the revision. In part, the relevant language is as follows:
Military personnel are prohibited from actively participating in extremist activities. (1) Extremist Activities. The term “extremist activities” means: (a) Advocating or engaging in unlawful force, unlawful violence, or other illegal means to deprive individuals of their rights under the United States Constitution or the laws of the United States, including those of any State, Commonwealth, Territory, or the District of Columbia, or any political subdivision thereof. (b) Advocating or engaging in unlawful force or violence to achieve goals that are political, religious, discriminatory, or ideological in nature. (c) Advocating, engaging in, or supporting terrorism, within the United States or abroad. (d) Advocating, engaging in, or supporting the overthrow of the government of the United States, or any political subdivision thereof, including that of any State, Commonwealth, Territory, or the District of Columbia, by force or violence; or seeking to alter the form of these governments by unconstitutional or other unlawful means (e.g., sedition). (e) Advocating or encouraging military, civilian, or contractor personnel within the DoD or United States Coast Guard to violate the laws of the United States, or any political subdivision thereof, including that of any State, Commonwealth, Territory, or the District of Columbia, or to disobey lawful orders or regulations, for the purpose of disrupting military activities (e,g., subversion), or personally undertaking the same. (f) Advocating widespread unlawful discrimination based on race, color, national origin, religion, sex (including pregnancy), gender identity, or sexual orientation.
What Does Active Participation in Extremism Look Like to the DoD?
While the above is fairly clear-cut and obvious, the definition of Active Participation as follows includes this paragraph and is somewhat muddled:
Engaging in electronic and cyber activities regarding extremist activities, or groups that support extremist activities – including posting, liking, sharing, re-tweeting, or otherwise distributing content – when such action is taken with the intent to promote or otherwise endorse extremist activities. Military personnel are responsible for the content they publish on all personal and public Internet domains, including social media sites, blogs, websites, and applications.
While “liking” posts or comments has been protected as free speech in limited application by the Supreme Court, the exceptions to the First Amendment are what the DoD is using to ground these changes on, such as provoking speech and gestures, hate speech, and good order and discipline.
Implementation Challenges
Some points to ponder as the changes move forward are as follows (keep in mind the enforcement mechanisms and authorities are subjective based on a case-by-case basis);
- How far back do investigative authorities look at tweets or posts? While people changing beliefs over time may be somewhat rare, misunderstanding of organizational missions and the organization morphing into something much more radical than it was to begin with seems to be quite possible.
- Is the definition of liking as stated in the instruction as follows subjective to the point it becomes mind reading or is it clear enough to clearly delineate right from wrong?
The use of the “like” function on social media platforms, generally to signal endorsement or support of the “liked” content. Liking includes the use of emojis or reactions that signal endorsement or support, or platform specific actions such as “favoring,” when also implying endorsement. Liking, in the context of the communication concerned, must imply or state endorsement, agreement or promoting of the content.
- Finally there is no real definition of publish listed in the document. For the purposes of defamation, a comment made to only one-third party can be considered published, so is that the standard used in this instruction or does it have to be available to the public at large?
To clarify, these are just some potential legal or practical arguments that could be anticipated with the changes. DoD lawyers are probably already working hard on their end to do the same.
