Free Speech v. Article 88

By E. R. Fidell

Because feelings are running so high, and also because these events reflect the tension between cherished constitutional values, it's important to go back to basics.

The basics are—or should be—familiar territory. From the beginning , one of the core values of our political system has been subordination of the military to civilian control. The Constitution makes the President commander-in-chief, and the framers did not vest the power to remove a president in the military. After more than 200 years, we take this premise so much for granted that we may forget that it is one of the things that distinguishes our system of government from others. Indeed, the day after Major Sellers's column appeared, The New York Times described as "remarkable" that the civilian prime minister of Pakistan had removed the Army Chief of Staff, rather than vice versa, as has repeatedly happened in that country.

The principle of civilian control does not restrict military officers from voting, contributing to political parties, or expressing personal views on vital issues of the day. It does, however, impose modest limits on political expression that do not apply to civilians under the First Amendment. Article 88 of the Uniform Code of Military Justice 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 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 Manual for Courts-Martial explains:

It is immaterial whether the words are used against the official in an official or private capacity. 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 as a violation of the article. Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged. 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, aggravates the offense. The truth or falsity of the statements is immaterial.

Violations of Article 88 strike at the heart of our system of government in ways that transcend the present controversy. They not only erode civilian control of the military but also threaten the hierarchical system within the military. Compliance with Article 88 is a baseline measure of obedience and loyalty; officers who violate it set a poor example.

It is a credit to the armed forces that officials rarely have resorted to Article 88. To be sure, from time to time issues have arisen under it and its predecessor provisions. There were numerous prosecutions during the Civil War, for example, President Lincoln having been deeply unpopular even among some Northerners. Since the Uniform Code of Military Justice took effect in 1951, there has been only one reported prosecution. In United States v. Howe (17 U.S.C.M.A. 165, 37 C.M.R. 429 [1967]), an Army Reserve second lieutenant was sentenced to be dismissed, to forfeit pay and allowances, and to be confined for a year for carrying a sign that said "LET'S HAVE MORE THAN A CHOICE BETWEEN PETTY FACISTS [sic] IN 1968" and "END JOHNSON'S FACIST [sic] AGRESSION [sic] IN VIET NAM." The United States Court of Military Appeals (now known as the United States Court of Appeals for the Armed Forces) had no difficulty upholding Article 88 against constitutional challenge.

Article 88 requires line-drawing. Subtle differences of language, tone, setting, and audience may put a case over the line. A quarter century ago, Army lawyers at Fort Monroe had to decide whether an officer violated Article 88 by displaying a bumper sticker that simply said "Impeach Nixon." They decided such a bumper sticker was not punishable. Other word-choices might lead to a different outcome.

Some argue that Article 88 fails to provide fair notice as to precisely what is illegal. But vagueness is no stranger to military law, which punishes misconduct defined as vaguely as "conduct unbecoming an officer and a gentleman" or "conduct to the prejudice of good order and discipline." Yet few in uniform would throw these familiar concepts overboard.

There's ample room for the free expression of opinion in the military. Every branch has had its brilliant mavericks who have annoyed superiors no end even while contributing (in some cases significantly) to national defense. Proceedings itself, with its open forum that periodically causes heartburn for the management, is a continuing monument to free expression. But if Article 88 means the glass of free expression is not filled quite to the brim, this is so for very sound reasons which should not be forgotten . . . no matter how strongly one may feel on any particular issue of policy or politics.

Mr. Fidell, who served on active duty with the U.S. Coast Guard, is an attorney in Washington, D.C. He has written extensively on military justice and is teaching a seminar on the subject this semester at the Yale Law School.



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