A heated, emotional and bellicose climate is certainly not new to U.S. politics, but constant connectivity to a never-ending news cycle, combined with new forms of communication technology by way of social media presents new challenges for active duty and reserve service members.
As any Soldier, Airman, Sailor or Marine knows, the Uniform Code of Military Justice (“UCMJ”) sets forth various rules and standards of etiquette and decorum when publicly expressing opinions, views and political affiliation and/or ideology. Violations of these rules and standards can result in a court martial proceeding with quite severe penalties, including but not limited to confinement, forfeiture of pay and even dishonorable separation from the service.
In particular, military personnel must be especially careful in how they publicly express their views of various elected and appointed civilian leaders, including but not limited to the President, Vice President, members of Congress and the Secretary of Defense.
Men and women who serve their country in the armed forces do not check their First Amendment rights at the door when they take the Oath to support and defend the Constitution of the United States. However, service does impose a set of very specific standards that do not otherwise apply when in the civilian world.
If you are presently serving in the U.S. military, reading this article before your next “Tweet” or “Facebook” posting could be the only thing separating you from a promotion, and a bad conduct discharge.
The Law for Commissioned Officers
There are primarily two (2) provisions of the UCMJ that relate to contemptuous statements against leaders, the first, 10 U.S.C. Section 888, Article 88, titled “Contempt Toward Officials” applies only to Commissioned Officers. The second, 10 U.S.C. Section 934, Article 134 is a General Article that will apply to enlisted personnel.
Article 88 provides:
Any commissioned officer who uses 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, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
The elements of this Article are as follows:
(1) That the accused was a commissioned officer of the United States armed forces;
(2) That the accused used certain words against an official or legislature named in the article;
(3) That by an act of the accused these words came to the knowledge of a person other than the accused; and
(4) That the words used were contemptuous, either in themselves or by virtue of the circumstances under which they were used. Note: If the words were against a Governor or legislature, add the following element
(5) That the accused was then present in the State, Territory, Commonwealth, or possession of the Governor or legislature concerned.
Unfortunately, the Manual for Courts-Martial provides only limited guidance in defining what constitutes “contemptuous words”. However, Colonel Winthrop, in his Work, Military Law and Precedents, offered some examples, which include, “abusive epithets, denunciatory or contumelious expressions, and intemperate or malevolent comments…” The legislative history is sparse on explanations, as well, but it is clear that “contemptuous words” includes “disrespectful” speech. In addition, the Military Judges’ Benchbook suggests that contemptuous means “insulting, rude, disdainful or otherwise disrespectfully attributing to another qualities of meanness disreputableness, or worthlessness.”
Records of prior courts-martial reveal that the element of contemptuousness is fairly easily satisfied. For instance, during the Civil War, convictions resulted for referring to President Lincoln as “a loafer,” a “thief”, a “damned tyrant”, and a “damned black republican abolitionist.” A conviction was even obtained for the statement, “Jeff Davis was as good a man as Abraham Lincoln.” Convictions in subsequent periods continued to run the gambit and convictions were obtained for disrespectful statements accusing Presidents Wilson and Roosevelt during the World Wars of being “socialist” and there are even convictions for disrespectful statements made against President Clinton (use your imagination here) and President Obama.
One recent high profile case involved Marine Corps Sergeant Gary Stein, who was court martialed under Article 134 of the UCMJ (see below). SGT Stein created a Facebook page called the “Armed Forces Tea Party”. On his page, SGT Stein called President Obama a “coward” and a “religious and economic enemy of the American people”. On another Facebook page, SGT Stein vowed that he would not salute Obama, and he was also selling “Nobama” 2012 bumper stickers. As a result of his conduct, an Administrative Separation Board at Camp Pendleton voted 3-0 to recommend that Stein should be dismissed and given an other-than-honorable discharge for making comments “prejudicial to good order and discipline.” Various appeals of the decision were unsuccessful.
In addition to the above, the official or legislature against whom the words are used must be occupying one of the offices or be one of the legislatures named in Article 88 at the time of the offense. Neither “Congress” nor “legislature” includes its members individually. “Governor” does not include “lieutenant governor.” Significantly, it is immaterial whether the words are used against the official in an official or private capacity.
While expressions of opinion made in a purely private conversation, or adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion that are not personally contemptuous, are typically not charged as a n offence, giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this article, or the utterance of contemptuous words of this kind in the presence of military subordinates, will result in an offense with aggravating circumstances, and the truth or falsity of any contemptuous statement is always immaterial.
As noted above, dismissal, forfeiture of all pay and allowances, and confinement for up to one (1) year are the possible penalties for a violation of Article 88.
The Law for the Enlisted
Meanwhile, Article 134 provides:
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.
This article is peculiarly vague when compared to the vast majority of UCMJ provisions, and although extremely broad, it has survived several attacks on its constitutionality over the years since its inception to military law in 1775. In essence, Article 134 is a “catch-all” for any offenses that are not otherwise covered in any specific article of the UCMJ. Typically, an enlisted member of the armed forces will be charged with a violation of Article 134 for making disrespectful statements against civilian leaders or superiors on the ground that such statements are “disloyal”.
In general, any individual subject to the UCMJ, who, at an alleged place and time, makes a statement on or about a particular subject or person, so as to encourage disaffection, disloyalty or both, or to interfere with or impair the loyalty and morale among the members of the armed forces, the civilian population or both, would be violating the Article 134 and shall be punished as deemed fit through a court martial. The statement made by the accused service member is considered an offense, if it is in anyway disloyal to the United States.
The elements of crime are as follows:
(1) The accused person actually made the alleged statement;
(2) The statement was made in public;
(3) The statement was disloyal to the United States;
(4) The statement promotes or encourages troops or the civilian populace to be disloyal, hostile or both towards the United States;
(5) The statement impairs and/or interferes with the morale, the discipline or loyalty towards the United States, of a member or multiple members of the U.S. military; and
(6) The nature of the statement was such that it brings upon discredit to the U.S. military, or disrupts the discipline and good order of the armed forces.
Under Article 134, a disloyal statement is a result of the accused person’s conduct, which is prejudicial to the good order and discipline of the armed forces and which brings upon discredit to the armed forces. This means that the accused has acted or behaved in such a way as to distort the armed forces discipline and to harm the reputation of the service in general.
A service member is said to have “made” a statement only if it was spoken, written, published or printed, uttered, issued or put forth for circulation by him or her. The statement is made “public” only when it is made openly in the presence of others, who have the knowledge that the alleged statement was actually made by the accused.
The alleged statement made by the accused must incite disloyalty, where the term disloyalty implies being untrue or unfaithful to the United States as a whole. It is important to note that disloyalty to the armed forces, a government department, or any other organization need not necessarily be disloyalty towards the United States.
Similarly, the accused must have, by making the statement, promoted disaffection, which means disgust, ill will, or a hostile attitude towards the United States.
An individual found guilty of a violation of Article 134 is subject to a maximum punishment of no more than three years in confinement.
Commissioned officers and enlisted personnel may each be charged with violations of Articles 88 and 134, respectively, if they have used contemptuous, disrespectful, or disloyal words in content posted online. Servicemen and women who have made derogatory comments against various officials in Facebook posts, in Tweets, in forums and blogs, or any other social media outlet may be charged with violating these punitive articles. In effect, these articles limit the ability of officers and enlisted personnel to criticize certain officials verbally and in writing, both through hard copy and digitally.
Accordingly, when expressing your feelings about the President on the internet, think twice before you click on the “post” button, for sometimes discretion truly is the better part of valor.
ABOUT THE AUTHOR
Craig H. Handler, Esq. is a Judge Advocate assigned to the 7th Legal Support Detachment, 88th Brigade, New York Army Guard. Mr. Handler presently holds the rank of Captain, and is honored to assist soldiers, sailors, airmen and Marines with their legal needs.