When demonstrators assembled on a narrow street near the Capitol building in Denver to protest the death of George Floyd last spring, Alan Kennedy joined them. He came as a “white ally,” capturing a police crackdown on his phone and then writing about what he witnessed in a guest commentary in a local newspaper.
As a captain in the Colorado National Guard, he wasn’t a typical protester. His actions got him in trouble with his commanders. After months of trying to overturn reprimands, Kennedy in March filed a lawsuit in federal court claiming commanders violated his First Amendment rights.
“This case is about whether any part-time member of the National Guard or Reserves can peacefully protest or write op eds,” Kennedy said.
His problems began after the May 30, 2020 protest that he documented on his phone -- protesters and police in a standoff.
“We're here for a reason,” Kennedy told social media followers on the video. “We're here to put an end to police brutality. We're here because of George Floyd.”
Kennedy was off-duty and not wearing his National Guard uniform. He was dressed in a red shirt and Broncos cap.
When police fired tear gas, Kennedy caught the ensuing confusion on video. Then, on June 4, 2020, he wrote about it in a Denver Post guest commentary, accusing police of treating protesters harshly and firing tear gas on them without warning or provocation.
The next day, he said, a National Guard commander summoned him for a meeting.
“They wouldn't tell me why,” Kennedy said. “I walked in, saluted, sat down, and the commander read that I was flagged because of an investigation, but would not release any details about the investigation or what I was accused of.”
Kennedy felt that he was being singled out. He decided to push back publicly on July 9, 2020, writing another commentary piece, this time for Colorado Newsline. He wrote that the state’s National Guard was investigating him because he marched “against racism and police brutality.”
He was again summoned to appear before a commander -- Colorado Army National Guard Col. Charles Beatty. It was then that he learned the results of the investigation, including the fact that it had wrapped up weeks earlier. Its focus was on his Denver Post commentary as well as his participation in the protest. The findings seemed to clear Kennedy. The investigating officer stated that Kennedy “did not engage in any political activities in violation of any Army regulations, prohibitions, limitations, guidance, standards, policies or federal statute.”
“The Colorado National Guard investigating officer also found that my Black Lives Matter protest participation and related op ed were a lawful exercise of First Amendment rights,” Kennedy said.
But for higher-ups, there was a sticking point. Though Kennedy’s Post commentary stated that “the views expressed are his own,” the investigating officers wrote that Kennedy should have received approval for the wording of his disclaimer. The investigator deemed it a “minor violation” of military rules, but Beatty said that Kennedy would receive a reprimand for it -- a disciplinary action that can lead to negative evaluations and even end a career.
KUNC asked the Colorado National Guard to comment on the case, but it declined, citing “ongoing litigation.”
The reprimand called Kennedy’s commentary disclaimer “insufficient,” saying it failed to make clear that “the whole of government does not endorse your opinion.” And under military regulations, troops can be prohibited from participating in off-base protests for several reasons, including if “violence is likely to result.”
Kennedy appealed, but Beatty declined to overturn the reprimand, adding concerns, like what if Kennedy had been arrested while protesting or “accused of rioting.”
“The way that this provision has been applied to target Black Lives Matter protests is deeply concerning,” Kennedy said. “I think there are hints of racism here.”
Kennedy also felt the response was heavy-handed because he is not a full-time soldier.
“The Colorado National Guard only pays me two days a month,” he said. “They don't pay me to sacrifice all of my constitutional rights the rest of the month.”
Months later, in September, his commentary about how his commanders were investigating him prompted a second reprimand, this time from Brig. Gen. Douglas Paul, the state’s top Army National Guard commander. Paul accused Kennedy of making “untrue” statements, setting himself up as a “false victim,” and trying to publicly “intimidate the command into refraining from lawful use of its authority to investigate” him.
Kennedy said he was not trying to intimidate the command.
Kennedy is a military lawyer and tried to overturn the reprimands with the help of another military lawyer. When they felt they had exhausted their appeals and remedies, Kennedy filed suit on March 16, 2021.
Such cases are rare, but not unheard of, said Gene Policinski, a journalist for five decades and senior fellow for the First Amendment at the Freedom Forum, a Washington D.C.-based non-partisan educational foundation. Members of the military retain their constitutional rights, he said.
“You do not in any way stop being a U.S. citizen when you join the military,” Policinski said.
Free speech issues have cropped up in the military, especially during contentious times, like in the late 1960s and early 1970s, during the Vietnam War.
“In the last few years between, frankly, the protests on the right and the left, that whole era is coming back where protest and assembly -- the right of association -- has come into the public consciousness,” he said.
In the past, judges have typically viewed the freedoms of troops as more limited, siding with commanders, he said.
“The courts have weighed that right of every American to be public in their vocal opposition or support for government policy against this military need for discipline and order and the chain of command,” Policinski said.
Kennedy isn’t the only member of the military to speak out about the death of George Floyd. Charles Q. Brown, a top Air Force general, told his troops in a video last spring that he was full of emotion, “not just for George Floyd, but for the many African Americans who have suffered the same fate as George Floyd.” Devin Pepper, a Black colonel who leads a Space Force garrison at Buckley air base in Aurora, sent a message to his community, saying “it could have been me on the ground begging for my life."
Brown went on to become the Air Force’s first Black chief of staff and Pepper has been nominated for promotion to brigadier general.
As a member of the military, Kennedy took an oath to support and defend the constitution. He said that’s what he has done, not only in uniform, but also in joining protests.
“I participate in Black Lives Matter protests to support constitutional rights,” Kennedy said. “I filed this lawsuit to defend the constitution.”
