According to the lawsuit filed, Army Capt. Alan Kennedy, a part-time Judge Advocate General Corps officer whose day job is in civil rights and constitutional law, faced multiple command investigations, reprimands, and other sanctions for writing op-eds in local newspapers and participating in Black Lives Matter protests while not in a duty status. Since he was not in a duty status, Kennedy should not have been prohibited from partaking in these free speech activities.
According to the Army Times, guard troops are subject to active-duty speech restrictions only when in uniform for their monthly drills or otherwise activate in a military capacity. “There’s a double standard,” Kennedy said in an interview with the outlet. He referenced another active guard who was open in addressing conservative views. “The Colorado National Guard’s investigated my participation in Black Lives Matter protests and op-eds while not investigating the op-eds of another judge advocate in my unit.”
Noting this double standard, Kennedy filed his lawsuit on March 16 in the hope of having a Defense Department Instruction created that deemed restricting the right to participate in protests as unconstitutional.
While similar cases have been filed in which service members alleged their freedom of speech was infringed on, the key difference is that Kennedy was not wearing a uniform during the protests he attended, nor was he on military orders as others have been.
As a result of Kennedy’s lawsuit, the state’s adjutant general, Army Brig. Gen. Laura Clellan, ordered an investigation into the state’s chief of staff, Army Col. Charles Beatty, and other officers for their conduct in handling Kennedy’s case.
In response to this news, Kennedy emphasized the importance of his case not taking away from the actual cause he was attending. “My fight for constitutional rights pales in comparison to the persecution of George Floyd and Daunte Wright, and countless others who have been murdered by the police,” he said.
The Colorado National Guard declined to comment on the case and its status. “Capt. Alan Kennedy’s branch of service is the Colorado Army National Guard,” 2nd Lt. Katherine Lee, the Colorado Guard’s deputy state public affairs officer, said in an email to Military Times. “Due to ongoing litigation, we cannot comment on [your] other questions.”
The Black Lives Matter protests Kennedy attended aren’t the first time he has faced scrutiny from his superiors, even though members of the military were allowed to write op-eds and other opinion pieces with disclaimers. The incident occurred during Donald Trump’s term in office in 2019; Kennedy criticized the Trump administration’s decision to withdraw American troops in the face of a Turkish military operation against Kurdish forces. At the time, investigating officers found that Kennedy did not “did not violate any prohibitions, limitations, standards, or polices with regard to exercise of political activities, use of media, or ethical standards.”
As Kennedy began to write more op-eds, including one last year detailing his participation in a Black Lives Matter protest, superior members found that to be an issue. “The police I encountered did not give any notice, any warning, before firing tear gas and flash bang grenades at marchers and journalists,” Kennedy wrote in an article, according to the Army Times. His op-ed noted that while the protest was peaceful, protestors were met with tear gas and flash bangs from Denver police.
It seems that some Colorado National Guard superiors do not care about Kennedy’s general participation in protests, but instead which protests he is involved in. By targeting those who protest Black Lives Matter and other injustices with reprimands while letting those who protest issues that support conservative agendas go, the state guard is depicting a clear bias.
Commenting on the issue, retired Army JAG lieutenant colonel and attorney at Butler Snow LLP Attorney Franklin Rosenblatt said in an email to Military Times: “The core issue in this lawsuit — the reach of military discipline to off-duty speech and association — is as old as our nation itself. The most hotly contested military justice cases in the United States’ early years concerned the accused’s status as a private citizen or militia member.”
“Historian Christopher Bray recounts a case from 1808 in which Maryland Federalist Jonathan Meredith offered a toast at a private dinner: ‘Damnation to Democracy!’ The court-martial transcript reveals that his defense was that he ‘appeared as a private citizen, and not in a military character,’” he added. “Likewise, just after the American Revolution, Thomas Bevins admitted that he called his company commander a ‘damned Irish bugger’ who was unfit to command ‘any more than my dog.’ Bevins’ defense was that the statements were made at dinner when military duties were complete for the day, ‘when as men + gentlemen, we were on the same footing.”
As the investigations into the conduct of Kennedy’s superiors continue, Kennedy is free to protest and the government has until May 17 to respond. But while Kennedy is thankful he is able to protest without disciplinary action, he believes this is not good enough. He noted that until the rule is gone altogether, more people can be subjected to the bias present in enforcing it. “As long as the unconstitutional provision of the DoDI exists, someone could decide to enforce it.”