A U.S. Army review board has overturned and destroyed a reprimand that a former Colorado Army National Guard lawyer received from his State’s leadership after he wrote an opinion article criticizing his leaders for investigating his participation in a May 2020 Black Lives Matter (BLM) protest, according to documents obtained by Army Times.
Capt. Alan Kennedy, who has since transferred to the Army Reserve, called the ruling a “victory for the First Amendment and the right to protest and write about racism” when reached by Army Times. “The Army’s reversal of [the] unconstitutional reprimand vindicates what we have said since May 30, 2020: there is no military exception to the Constitution.”
The lawsuit already resulted in the National Guard Bureau declaring that federal restrictions on protest participation don’t apply to off-duty part-time troops. That has led to concerns about the military’s ability to enforce anti-extremism measures against off-duty Guardsmen, such as the Wisconsin National Guard soldier who participated in the Jan. 6 insurrection last year.
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However, Kennedy’s lawsuit against his former leaders continues in federal court. He wants the courts to rule that the military can’t restrict the free speech rights of troops, especially when they’re not on duty.
How Kennedy got his reprimand
The legal saga began when Col. Charles Beatty, the Colorado Guard’s chief of staff, ordered an investigation into Kennedy for being present at a May 30, 2020 protest in Denver. Police teargassed the crowd, and Kennedy wrote an opinion article about his experience.
Beatty told the investigator to evaluate whether Kennedy broke any rules by writing an op-ed, or if he had violated Department of Defense Instruction 1325.06, which prohibits off-duty troops from “participating in off-post demonstrations…[where] violence is likely to result.”
The lawyer was not in a duty status that day, nor was he in a duty status when he published the article. Even active-duty members of the military are permitted to write letters to the editor, op-eds, or other opinion news pieces, so long as there is a disclaimer.
The investigator found that Kennedy did not violate any regulations, save for a minor technical issue about the disclaimer in his article. He also said that there was no way Kennedy could have known violence would occur.
But Beatty changed the findings to say that “violence was likely to occur” at the protest over George Floyd’s killing, and Kennedy received a temporary local reprimand.
During the first investigation, Kennedy wrote another opinion article, “Why is the National Guard investigating peaceful protests?”
This led Beatty to launch a second investigation into Kennedy. The investigating officer found that he had violated portions of the Colorado Code of Military Justice by criticizing his chain of command, so Paul issued a permanent GOMOR — general officer memorandum of reprimand — in what was likely a death blow to Kennedy’s military career.
The reprimand cited the first investigation and said Kennedy “brought disrepute and dishonor upon the COARNG.” He sued, alleging violations of his 1st Amendment rights.
