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Watch what you say: Speech limits under UCMJ

Aug. 27, 2007 - 12:22PM   |   Last Updated: Aug. 27, 2007 - 12:22PM  |  
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Q: I am currently on active duty and I want to get involved in politics. Can I?

A: This is a tricky question. The short answer is "no," but like almost everything with law, exceptions do apply. (If it was not for exceptions in the law, law school would be three months instead of three years.) Numerous articles in the UCMJ restrict the speech of service members, and two of those could affect political speech. I would point out that under Article 2 of the UCMJ, retired members of the military drawing pay, as well as active-duty service members, are subject to UCMJ provisions. So if you think retiring will allow you to escape UCMJ action, you are wrong.

DISCUSS">Speech limits and the UCMJ

My favorite UCMJ provision is Article 88, which makes it a crime for an 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 the Department of Homeland Security, or the governor or legislature of any state, territory, commonwealth, or possession in which he is on duty or present

In 1999, Army Lieutenant Colonel 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." (">Read the full article, which is very instructive on Article 88).

This article of the UCMJ is relatively new (about 60 years old) but it can trace itself back to colonial times. If you think nobody gets prosecuted under it, think again. Numerous officers have been disciplined for criticizing the president. Two Marine Corps officers were administratively punished for published letters to newspapers that were disrespectful to the president in the 1990s. Ltc. Davidson points 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 side. 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."

Lt. Howe was sentenced to dismissal, total forfeitures, and confinement at hard labor for two years. The convening authority reduced the period of confinement to one year and otherwise approved the sentence. Three months and two days after his trial he was released from confinement under commandant's parole.

Article 134, known as the catch-all article, makes criminal those acts of speech that are prejudicial to good order and discipline or that could bring discredit upon the Armed Forces. This is pretty broad and explains why it is often called the catch-all article. If your chain of command thinks your political involvement has affected your unit or the military, you could be punished under this article.

The UCMJ is not the only thing you need to worry about. If you are a noncommissioned officer, warrant officer or an officer, and attempt to influence other members of the military to vote because of your military authority, then you will be facing five years in prison under 18 USC 609.

Now that you have brushed up on some key laws, you could also run afoul of some very restrictive regulations. DoD Directive 1344.10 bans active-duty service members from running for office, participating in partisan political management, or campaigns (many exceptions are applicable).

If you have plans to speak out against the current administration, I would strongly recommend against it until you are off active duty and not collecting retired pay!

Keep the questions coming.

Mathew B. Tully, Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of">Tully, Rinckey and Associates, a law firm in Albany, N.Y. E-mail your legal questions to

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

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