Military justice experts weigh in on service members’ Charlie Kirk social media posts

ARLINGTON, Va. (DC News Now) — Defense Department leaders are signaling swift action following online posts from service members that appear to mock the assassination of conservative commentator Charlie Kirk. A reaction that has sparked debate over free speech protections and military discipline.

Across the U.S., social media users are facing professional backlash for reactions to Kirk’s death, mocking his support for the Second Amendment. A Marine Corps officer was fired from his position as a recruiter after allegedly posting a meme about Kirk’s murder.

Secretary of Defense Pete Hegseth wrote on X that the Pentagon is “tracking all these very closely and will address immediately. He wrote that the behavior is completely unacceptable.

Kirk’s killing has become a flashpoint in political discourse and within military ranks, as service members’ social media posts come under increased scrutiny.

However, some legal experts are raising questions about how far top officials can go in directing disciplinary actions based on speech — particularly when such directives come from the highest levels of the Pentagon.

“If the order from the Secretary of Defense was a broad, general directive to commanders to ensure compliance with the UCMJ, that would be one thing,” said Cody Harnish, a former Army JAG. “Versus a specific, message-related hunt; ‘I want you to find people that are saying this and then punish them’.”

Harnish now represents service members as a civilian.

The Uniform Code of Military Justice (UCMJ) is the legal framework governing military members. Under the Congressionally enacted code, service members retain Constitutional rights, though they’re more limited in order to maintain order and force readiness.

“The key is whether speech becomes prejudicial to good order and discipline, or conduct unbecoming of an officer,” he said.

Violations of UCMJ are investigated by a service member’s chain of command. Harnish said that a specific directive from high-ranking DOD officials about the discipline of a service member constitutes unlawful command influence, known as the “mortal enemy of military justice.”

“There should be findings and the command’s going to decide what they’re going to do with it.
Are they going to take this individual to a court martial? Are they going to do nothing, or are they going to try to separate them administratively from the military?” Harnish said.

Military members’ right to free speech is limited to statements that don’t go against the mission of force-readiness. Disparaging the president or an elected official would violate UCMJ.

Though Kirk was a prominent political influence, statements about him likely wouldn’t apply, although condoning violent crime would.