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Comment by djcapelis | Hacker News Reader

> That case does not involve appealing to the First Amendment.

I think it must. You can make a case that UCMJ and waiving of rights are limited exceptions that must be allowed under the first amendment for the government to do its work, but as these rights are fundamental, I think it is the government that must justify restrictions on any citizen's right to free speech. And it is our system which requires that those restrictions be as limited as possible.

IMO, the First Amendment is in play because any restrictions on speech must be justified and limited.

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So I decided I ought to actually look it up.

http://en.wikipedia.org/wiki/Military_expression which cites http://www.airpower.maxwell.af.mil/airchronicles/aureview/19...

The most useful section appears to be "freedom of the press", in which military personnel published information against the wishes of security review.

"On appeal, the USCMA concluded that a regulation requiring security review was valid and, therefore, did not violate the military member's first amendment rights, noting that the right to free speech is not an indiscriminate right and is qualified by the requirements of reasonableness in relation to time, place, and circumstances."

My short interpretation is that: (1) the vast majority of people waving around the First Amendment flag have no idea what they're talking about, but (2) I have been incorrect in the blanket claim that there is no First Amendment protection for soldiers.

I think I can say we agree on both those points. And those are both really relevant citations, thanks for looking them up!

The Constitution also gives Congress the power to 'make Rules for the Government and Regulation of the land and naval Forces'. You seem to think the Bill of Rights trumps the rest of the constitution. It doesn't, but rather stands on the same plane as it, and where there are conflicts between different parts of the Constitution the matter typically ends up in the Supreme Court sooner or later.

There's a lot more to the Constitution than just the Bill of Rights, but most people only seem to remember the latter.

Yes. There's a bunch of clauses that allow a bunch of things. None of them involve tossing the first amendment out the window and all of them involve an analysis where the fundamental right to free speech is in play, but also often balanced by other legitimate governmental concerns.

Which is pretty much exactly what I said in my post.

That's not what you said at all. Your stated position is that rights are fundamental and government has to justify any imposition on those, yes? So you're saying that the bill of Rights > the Rest of the Constitution.

Go read the Federalist Papers, there is no way the founders intended it to work that way and courts have never interpreted it that way either. James Madison explains it beter than I can:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Fundamental rights is a legally defined term, you should look it up sometime.

(Also the federalist papers pre-date and argued against the Bill of Rights. Which means they're a strange authority to reference in this context.)

The Federalist papers argued against the need for things like the Bill of Rights, which were considered redundant and perfectly placeable in the law itself (and possibly counter-productive, if it was ever assumed that the Bill of Rights represented the sum of your rights, which is what the 9th Amendment was passed to try to prevent).

Either way, that doesn't answer the point of whether this argument by Madison is valid or not.

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