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State National Guard leaders cannot apply Defense Department restrictions on protest participation to Guardsmen who are not on active federal orders.
That stance was clarified last month in a memo from the National Guard Bureau, which was first reported by Army Times. It comes after a Colorado Guardsman filed a lawsuit after he said he was punished for participating in a Black Lives Matter protest.
That Guardsman, Capt. Alan Kennedy, has alleged his superiors have attempted to limit his off-duty freedom of speech. Kennedy is a judge advocate general in the Colorado National Guard and said leaders issued him two reprimands – one following the May 2020 protest and another after Kennedy wrote an opinion piece in a local newspaper questioning the decision to investigate his participation.
The May 2020 protest occurred at the height of a nationwide protest movement in the wake of the death of George Floyd, a Black man killed by a white police officer in Minnesota.
The first reprimand was based on Defense Department Instruction 1325.06, which limits troops’ involvement in “dissident and protest activities.” But NGB has now clarified that instruction should not have applied to Kennedy and others who are not serving in a Title 10 duty status under federal command and control.
An investigation into Kennedy’s punishment, ordered by Colorado Adjutant General Brig. Gen. Laura Clellan, found leaders had a “good faith, yet mistaken understanding” of protest rules.
Clellan found it was improper to investigate or reprimand Kennedy but determined his command did not commit misconduct.
Lawyers representing the Colorado Guard have asked a federal judge to dismiss the lawsuit, according to Army Times. They note his first reprimand was withdrawn and the second reprimand and a negative evaluation are currently being reviewed.
But Kennedy told Army Times he wants the case to proceed, arguing that all protest restrictions on off-duty troops are improper and unconstitutional, regardless of duty status.
