An 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 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.
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.
After Kennedy’s lawsuit and media coverage of the case, the state’s top general ordered a third investigation into the previous two investigations. It found that Beatty and Colorado Guard officials had a “good faith, yet mistaken understanding” of the protest rules in believing they applied to Guardsmen not in a Title 10 duty status. His GOMOR still stood, though.
Now the reprimand is overturned, thanks to the Department of the Army Suitability Evaluation Board.
Kennedy’s appeal to the board “provided clear and convincing evidence which shows the GOMOR is inaccurate, unjust, or otherwise flawed,” the Dec. 14 record of board proceedings states.
The former Colorado JAG doesn’t want it to stop there, though. He told Army Times in August that he worried the same regulation could be weaponized against federal reserve component troops, whose drill weekends take place in a Title 10 rather than Title 32 status.
“Our case against [the regulation] which unconstitutionally prohibits off-duty participation in off-post demonstrations if ‘violence is likely to result’ continues,” Kennedy said. “Unconstitutional restrictions on First Amendment speech have a chilling effect on those of us who wish to speak out against racism and abuses of power when not on orders, not on duty, and not in uniform.”
Davis Winkie is a senior reporter covering the Army, specializing in accountability reporting, personnel issues and military justice. He joined Military Times in 2020. Davis studied history at Vanderbilt University and UNC-Chapel Hill, writing a master's thesis about how the Cold War-era Defense Department influenced Hollywood's WWII movies.