Contemptuous speech against the president

  • Published
  • By Maj. John C. Wigglesworth
  • 7th Bomb Wing Office of the Staff Judge Advocate
Because of the unique mission and needs of the armed forces, civilians enjoy a greater degree of free speech under the first amendment than do servicemembers. Political speech is no exception.

Military law prohibiting disrespectful language toward our civilian leadership by servicemembers dates back to the Articles of War enacted in 1775. Today's Article 88 of the Uniform Code of Military Justice makes it a crime for any commissioned officer to use "contemptuous words against the president, the vice president, Congress, the secretary of defense, the secretary of a military department, the secretary of homeland security, or the governor or legislature of any state, territory, commonwealth, or possession in which he is on duty or present. ..." Air Force Instruction 51-902, Political Activities of Members of the US Air Force, extends the same prohibition to enlisted Airmen.

In 1999, Army Lt. Col. Michael Davidson explained in a law review article that contemptuous "means insulting, rude, disdainful or otherwise disrespectfully attributing to another qualities of meanness, disreputableness or worthlessness."

Colonel Davidson pointed out, "Since the UCMJ was enacted in 1950 only a single known court-martial has occurred pursuant to Article 88. In United States v. Howe, an Army lieutenant was convicted for carrying a sign during an antiwar demonstration that read, 'Let's Have More Than A Choice Between Petty Ignorant Fascists In 1968' on one side and 'End Johnson's Fascist Aggression In Vietnam' on the other.

Lieutenant Howe did not participate in organizing the demonstration, but merely joined it after it began. During the half-hour demonstration, Howe was off duty, in civilian clothes, and no one at the demonstration knew of his military affiliation. Howe came to the Army's attention only because a gas station attendant, who Howe had asked for directions, spotted the lieutenant's sign and an Army sticker on his vehicle, and subsequently notified the local military police."

While court-martial charges for violation of Article 88 are now rare, there were approximately 115 cases tried under Article 88's predecessors. Moreover, commanders have nonjudicial punishment and administrative actions at their disposal in addressing contemptuous language toward military and civilian leadership.

For example, early in the Clinton presidency an Air Force general was fined, reprimanded and forced into early retirement for referring to the president as "'gay-loving,' 'womanizing,' 'draft-dodging,' and 'pot-smoking,'" during an Air Force banquet speech. Three years later, another Air Force general was reprimanded for telling an inappropriate joke about President Clinton during a speech.

The Manual for Courts-Martial explains that it is immaterial whether the words are used in an official or private capacity. It is also immaterial whether the statement is true or false.

On the other hand, if not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged. Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged.

In upholding the conviction of Lieutenant Howe, the court explained, "it was not the expression of Lieutenant Howe's political views that constituted his offense, but his public display of contempt for his commander in chief."

Our president is more than a politician; he is our commander in chief. He is entitled to no less protection under the UCMJ than any officer or NCO being disrespected by a subordinate.

The interpretation of what amounts to "contemptuous words" is subject to ambiguity. Colonel Davidson reminds us that Article 88 requires line drawing. Subtle differences in language, tone, setting and audience may put a case over the line.

Therefore, commanders should seek the advice of their staff judge advocate before taking action based upon Article 88.