As one who scours social media for links and news relating to my profession, I often get derailed as an observer watching a rock fight between two or more enraged participants. The sum and substance of the content is obviously elevated during an election year, and as a retired military lawyer and commander, watching the back and forth ufold made me reflect on my time in uniform and the five presidents I served under. Specifically, I reminisced how often I had to review what Article 88 of the Uniform Code of Military Justice actually said….and meant, because inevitably, it was going to get brought up by somebody and more so post-invention of the internet.
Article 88 in its charge states
Contempt Toward Public Officials: “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 Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
The elements of the crime to be proven 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.
Article 88 Uses a Broad Brush to Paint Contemptuous Conversations
While the law and common sense do not seem to be attracted to those purely private conversations between two individuals in terms of enforcement, the brush that still paints the list of potential offenders of the law in this matter is wide enough to cover most anybody and everybody who has worn the uniform, at least in isolated incidence. Side note: I have to wonder how the Secretary of Transportation made the list over others.
What does contemptuous mean exactly? Article 88 offers no definition, but when I think of contemptuous, I think of every conversation about politics on Twitter I have ever read about any candidate from any author, qualified or not.
Precedence from U.S. vs Hale
In the case of U.S. vs Hale, 37 CMR 555, the appellate judges stated:
“….you should decide whether or not the words were contemptuous in themselves, such as abusive epithets, denunciatory or contemptuous expressions, or intemperate or malevolent comments upon official or personal acts of the President and/or whether or not the words were contemptuous”
In the Hale case, one of the most cited on the subject, and one that is over fifty years old, an Army 2Lt displayed a sign that characterized the President as a petty, ignorant fascist and his policies in Vietnam as fascist aggression, in a picket line where other demonstrators carried other signs with messages against the government and its decisions.
Few Cases Post Advent of Social Media
The good or bad thing, depending on how you look at it, is there are not many cases out there, at least that were appealed, involving Article 88 charges, and very few post advent of social media. This is not to say the Article is not being enforced; however, it could very well be at a lower form of administrative action than a court martial. Good order and discipline carries the water in the military and sometimes a looming shadow of a law, however rarely often it is used, is far more effective as a deterrent than it is for punishment.
