A Service Member’s Guide to Avoiding Trouble During the Presidential Campaign

BLUF: Shut up.

The views expressed are those of the author and do not reflect the official policy or position of the Department of the Army, Department of Defense, U.S. Government, or any other agency, institution, or organization.

If you are in the military, a good rule of thumb is to simply not discuss politics. You are permitted to discuss politics, to vote, to participate in various political activities (off-duty, when not in uniform, etc), and to register with a political party, along with several other rights. From an idealist standpoint, military personnel — at least the officers — should be apolitical, caring not what party our leaders are in, or what their views are, but simply caring that their orders are lawful and their policies and strategies are devised with input (whether heeded or not) from military advisers. From a practical standpoint, recognizing that many personnel will not be apolitical, there are some ground rules, to include laws, that should be followed.

I will discuss restrictions on speech that are imposed by law. At the end of this piece, there are recommendations for further reading, if you are interested in further guidance provided in Department of Defense issuances.

Freedom of Speech in the Military

As the Presidential campaign heats up, many people will offer up their opinions of the issues, events, and the candidates. People who have never served in the military have great latitude in what opinions they might air. Candidates for political office open themselves up to all manner of verbal or written abuse from most people. That abuse, if lodged against a private individual, could be actionable in a civil suit for slander or libel. But, when lodged against a public figure, it is good old fashioned political discourse.

In this context, individuals receiving a paycheck from the military — as active duty or retired service members — do not qualify as “most people.” Those on the payroll, or pension roll, are slightly more constrained by law in what views they can lawfully air.

You might be asking: How can this be? What about the First Amendment? Well, the First Amendment does give military personnel protections. But individuals subject to the Uniform Code of Military Justice (UCMJ) have some narrowly-tailored legal constraints, crafted specifically due to their service in a profession where obedience and respect for authority are deemed integral to the proper functioning of the organization that they are a part of.

The Uniform Code of Military Justice

The UCMJ is Chapter 47 to Title 10 of the United States Code. In laymen’s terms, that means that the UCMJ is part of the written law of the U.S. federal government. It is a statute, not a regulation or a directive. Articles 77 through 134 (10 U.S.C. 877-934, contained in Subchapter X of Chapter 47) are punitive in nature. This means that a person who is subject to the UCMJ can be imprisoned if a court with jurisdiction finds that person guilty of violating one or more of those punitive articles of the UCMJ.

Let’s look at a few relevant articles of the UCMJ: Article 88 and Article 134. These are the provisions that you should be aware of before you go giving your opinions about candidates running for office. Article 88 of the UCMJ, “Contempt Toward Officials” (10 U.S.C. 888), reads as follows.

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, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

Let’s break this down into its elements.

Jurisdiction: Commissioned Officers

A good barracks lawyer will note up front that this applies to “[a]ny commissioned officer.” What is a commissioned officer? It definitely includes personnel in the pay grade of O1 or above. It also includes pay grades of CW2 through CW5. What about the enlisted ranks of E1 through E9? Can a Private use contemptuous words against the President and avoid punishment? It appears that he can avoid punishment under Article 88. But, look out for the UCMJ’s catch-all Article 134 (10 U.S.C. 934), which governs conduct that is prejudicial to good order and discipline:

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.

If you are able to dodge the Article 88 train, simply due to your rank, you will almost certainly get run over by the Article 134 bus. I am not going to belabor this point. If you are a barracks lawyer who disagrees with me, have fun arguing it to your commander, or to the judge. You should assume that the discussion of Article 88, below, can equally apply to you, but will simply be applied with slightly different wording under Article 134.

Words Against an Official or Legislature

Who is protected by Article 88? I think it is obvious that this includes the “President, the Vice President… the Secretary of Defense, the Secretary of a military department, [and] the Secretary of Homeland Security.” What about “Congress”? Congress generally has an approval rating in the teens or single digits. We cannot belittle the legislative branch of our federal government with whatever terms of derision we want? No. And what about Governors and state legislatures? It depends. Are you on duty or present in that state? If so, bite your tongue until you are no longer on duty and present in that state. Or, better yet, just shut up about that particular Governor or legislature, regardless of your location. The world will survive without your opinion.

Others Become Aware of Your Words

If you say something stupid, but nobody is around to hear it, is it still stupid? Yes. Is it punishable? Probably not. So, if you mutter nasty insults about a protected official while you lie awake, alone, in bed at night, then you are probably safe from prosecution. Incidentally, this might also be a clue as to why you are sleeping alone.

If you utter the words to someone else, that is where your legal problems begin. Note that there is not a minimum threshold greater than one person. The threshold is one person. If you broadly publish the words to a wide audience, or to subordinates, that is what lawyers call “aggravation.” That is, you open yourself up not only to punishment, but to more severe punishment. So, what you post on Facebook is worse than what you whisper to a friend. It is worse still if that Facebook post is viewable by the entire world, rather than a close circle of “friends” who are logged in to their Facebook accounts. And if your subordinates view it, well, you should probably get your personal matters in order, because you are likely going to encounter some career-altering disciplinary proceedings.

Contemptuous

Next, what are “contemptuous words” and when are they punishable? This needs to be defined clearly in order to hold someone to account for it in a court-martial. Words are contemptuous when they attack an individual. What if you are a commissioned officer, and you accuse an official who is protected by Article 88 of being a “dirty New York Yankees fan”? Well, that is contemptuous. But is it punishable? Probably not. What if you say that the official is a “traitor who gives unlawful orders.” That is contemptuous, and it is likely punishable. Why? Because contemptuous words may be punishable if they interfere with the orderly accomplishment of the mission, or if they present a clear danger to loyalty, discipline, mission, or morale of the troops.

What words could interfere with accomplishment of the mission? Well, if you tell everyone in your unit that a person protected by Article 88 is a dishonest lout whose orders should not be obeyed, then those words could certainly interfere with the mission.

What about words that present a clear danger to loyalty, discipline, mission, or morale of the troops? That sounds broad. And it is. And that is a good thing, in my opinion. To maintain discipline, it is best not to clearly demarcate a line that you can walk up to the edge of. A gray zone, where you are not sure how far you can go, causes you to exercise some judgment and critical thinking. Not sure if you can call an official an idiot? Perhaps you should simply say that you disagree with his policy position. An unintended benefit of this approach is that you might sound like an adult.

Defenses

You may also be aware of the common defense to slander and libel. That is, truth is the ultimate defense. Well, Article 88 is different from mere slander or libel. Neither the truth nor falsity of your statement is a defense. That may seem confusing, so let’s use an example. Former President Bill Clinton was impeached for perjury and obstruction of justice. Had you been a commissioned officer during his Presidency, could you have referred to him as the “second President to be impeached” without fear of punishment under Article 88? Probably. Simply pointing out a fact, even though embarrassing, is not clearly contemptuous. Furthermore, stating that fact does not risk interference with accomplishment of the mission. Where you would definitely get in trouble would be if you had said, “we don’t need to obey orders from him, because he was impeached.” That would be contemptuous and punishable, because it does interfere with the orderly accomplishment of the mission. Note that truth of the statement is not the determining factor.

Now, let’s try a less obvious statement. Suppose you were a commissioned officer during Clinton’s presidency, and you said, “I don’t trust anyone who gets impeached, especially that SOB.” Now suppose someone overheard you say that. Does it interfere with mission accomplishment? No. But calling him an “SOB” can present a clear danger to discipline or morale.

Bottom Line

If you are a member of the military, or if you are collecting a pension from your military retirement, then you are probably subject to the UCMJ. That jurisdiction applies at all times in all places. So, this campaign season, so long as you remain subject to that jurisdiction, here are my words of advice with regard to political speech.

Debate ideas, policies, and events, not people or personalities. It is contemptuous to say that someone is stupid. It is fine to simply say that someone’s position on a particular policy is unconvincing, or that you disagree with their assessment of an issue.
As of 14 November 2015, the following individuals hold elected office and remain as candidates in the race for the Presidency. If you want to hurl insults at a candidate, hurl them at someone other than these individuals: Governor Chris Christie (New Jersey), Governor Bobby Jindal (Louisiana), Governor John Kasich (Ohio), Senator Ted Cruz (Texas), Senator Lindsey Graham (South Carolina), Senator Rand Paul (Kentucky), Senator Marco Rubio (Florida), Senator Bernie Sanders (Vermont).
If you are not sure whether what you are about to say is punishable under Articles 88 or 134 of the UCMJ, then it is probably safe to guess that whatever you are about to say is stupid. It is always a good idea to not say stupid things.