The president, contemptuous speech and the military

Published Oct. 14, 2009
By Capt. Evan J. Bonnett
21st Space Wing legal office

PETERSON AIR FORCE BASE, Colo. -- With the recent uptick in heated political discussion, particularly about the health care debate and economic issue, it may be necessary to give some general guidance about restrictions on uniformed military members' contemptuous speech that criticizes Congress and the president. These restrictions extend to all servicemembers, enlisted or officer, and cover all types of communication made to others.

The First Amendment guarantees the right to free speech, but servicemembers' rights are restricted to a certain degree. This is done for two primary purposes: the interests of good order, discipline, loyalty, and morale, as well because of the Constitution's subordination of military power under civilian leadership. These restrictions are spelled out in Uniform Code of Military Justice Article 88:

"Any commissioned officer who uses contemptuous words against the President, 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."

Air Force Instruction 51-902, Political Activities by Members of the U.S. Air Force, expands this restriction beyond just officers by stating that all "Air Force members" may not use such speech.

Now that you know who these restrictions cover, what exactly are we talking about as being "contemptuous" speech? Contemptuous at least means disrespectful. Additionally, such speech can be on-its-face contemptuous or even be considered contemptuous if the circumstances surrounding its utterance would make the listener feel the words were contemptuous.

Examples clarify what is meant and are very illustrative. They can be had from as far back as Presidents Lincoln, Wilson and Roosevelt, where these men were respectively called "a thief," a "grafter," and a "crooked, lying hypocrite." Others have found themselves on the wrong side of this prohibition by calling our involvement in Vietnam, "Johnson's fascist aggression" and by referring to President Clinton as "gay-loving, womanizing, draft-dodging," and "pot smoking." This example, in particular, illustrates the crucial point that it does not matter if the words are spoken during a political discussion or even if the speaker did not mean the speech to be contemptuous. If the speech is contemptuous, it is potentially punishable.

Finally, remember that while members of the Air Force are encouraged to vote and to have opinions regarding political topics, that we must be constantly aware of the special trust and authority given to us by nature of our positions and be sure to act accordingly and appropriately.

For information, consult UCMJ Art. 88, DoDD 1325.6, DoDD 1344.1, AFI 51-90 or contact the 21 SW Staff Judge Advocate office at 556-4871.

(References include the above as well as Ethredge v. Hail, 56 F.3d 1324 (11th Cir. 1995); Lt. Col. Michael J. Davidson, Contemptuous Speech Against the President, 1999 Army Lawyer 1 (1999); and Capt. John A. Carr, Free Speech in the Military Community: Striking a Balance Between Personal Rights and Military Necessity, 45 A.F. L. Rev. 303 (1998).)