The Colorado National Guard on Monday asked a federal judge to dismiss a lawsuit by a Colorado captain who alleges his superiors violated his First Amendment rights to free speech, assembly and the press.
Capt. Alan Kennedy, a 37-year-old judge advocate, sued several of the Colorado National Guard’s top commanders and generals in March after they reprimanded him in 2020 for participating in a Black Lives Matter protest, and again after he wrote an op-ed in Newsline criticizing them for investigating his participation in the protest.
Kennedy’s lawsuit, filed in the federal district court in Denver, asked the judge to declare that his commanders violated his constitutional rights. Kennedy also wants the judge to deem unconstitutional the Department of Defense policy under which he was punished.
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The case could set a precedent for the approximately 440,000 people who serve as active or reserve members of the Army and Air National Guard, many of whom abide by policies restricting certain speech and behavior in order to maintain discipline and command structure.
In the filing on Monday, attorneys representing the Guard, including the office of Colorado Attorney General Phil Weiser, argued against Kennedy’s efforts to expand the rights of military members, citing Vietnam War-era case law limiting the rights of military members from speaking out.
They also asked the judge to dismiss key claims in Kennedy’s case because the Guard is taking steps to address Kennedy’s constitutional concerns.
Among those steps was a decision by the Guard to retract Kennedy’s reprimand for attending the protest last year while he was off-duty.
Kennedy’s commander reprimanded him under a Department of Defense policy that prohibits certain members of the military from attending protests where “violence is likely.”
But according to a July 30 report filed with the court, Brig. Gen. Laura Clellan, the Guard’s adjutant general, said punishment under the Department of Defense policy was “improper” because the policy does not apply to Kennedy. Clellan cited a July 26 memorandum issued by the National Guard Bureau indicating the policy only applies to members under federal command and control.
Kennedy and his team, which includes two criminal and military law attorneys, still want the judge to deem the Department of Defense policy unconstitutional.
The Guard’s lawyer, however, argued that because the policy no longer applies to Kennedy, he now lacks legal standing necessary to challenge its constitutionality. The judge should dismiss Kennedy’s constitutional challenges as moot, they argued.
Separately, the Guard’s attorneys rejected Kennedy’s argument that he was unconstitutionally punished for writing an op-ed about the Black Lives Matter protest. In the op-ed, Kennedy said the Guard’s investigation into his protest attendance was “constitutionally appalling.”
Brig. Gen. Douglas Paul, the Guard’s assistant adjutant general, claimed the op-ed was an effort to “intimidate” his chain of command into refraining from investigations. Kennedy’s op-ed “publicly criticized his chain of command,” the Guard’s attorneys argued, and therefore is “not entitled to First Amendment protection.” They cited case law, including the 1974 case Parker v. Levy, in which the courts ruled members of the military cannot “undermine the effectiveness of response to command.”
They also argued the military — not the courts — should resolve Kennedy’s concerns. The military is still considering Kennedy’s appeal and, the attorneys argued, the courts have historically given the military “substantial deference” over issues related to the constitutional rights of military members. “Judicial review,” the attorneys said, “would result in significant interference with the military’s ability to perform its mission.”
Court rules require Kennedy to respond to the motion to dismiss by Aug. 23.
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