Article 88 of the Uniform Code of Military Justice is one of the oldest and most distinctive offenses in military law. It forbids a commissioned officer from using contemptuous words against certain high officials. The rise of social media has put new pressure on the article, because an officer can now broadcast an opinion to thousands of people instantly, from a personal phone, on personal time. The question of whether a social media post counts as the kind of conduct Article 88 reaches does not turn on a special internet rule. It turns on the elements of the article itself, applied to a new medium.
What Article 88 actually prohibits
The statute, codified at 10 U.S.C. 888, provides that 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, Commonwealth, or possession in which the officer is on duty or present shall be punished as a court-martial directs. Several features stand out. The offense applies only to commissioned officers; it does not reach enlisted members or warrant officers. It protects a closed list of officials and institutions. And it requires that the words be contemptuous, meaning scornful, disrespectful, or expressing disdain, not merely critical.
The elements the government must prove are that the accused was a commissioned officer, that the accused used certain words against one of the listed officials or bodies, that the words came to the knowledge of someone other than the accused through an act of the accused, and that the words were contemptuous either in themselves or because of the circumstances.
Why publication, not “public conduct,” is the real issue
Article 88 is not framed in terms of a category called public conduct, and it is a mistake to ask whether a post is public in the way a uniformed appearance or an official statement is public. The element that does the work is whether the contemptuous words “came to the knowledge of some person other than the accused” by an act of the accused. That is fundamentally a publication requirement. A purely private thought, or words spoken to no one, is not reached. The moment an officer’s contemptuous words about a covered official become known to another person through the officer’s own act, that element is satisfied.
A social media post is, by its nature, an act of communication directed at others. Posting contemptuous words about the President or another listed official to followers, to a group, or to the public at large is the act of making those words known to persons other than the officer. In that sense a social media post fits the publication element about as squarely as any conduct can. The officer has used words and has, by the act of posting, conveyed them to an audience. Whether the audience is one person or a million, the third-party-knowledge element is met once someone other than the officer learns of the words through the post.
The official versus private distinction
The Manual for Courts-Martial recognizes that it is immaterial whether the contemptuous words are used in an official or a private capacity, but it also cautions that expressions of opinion made in a purely private conversation should not ordinarily be charged. This is where social media gets interesting. A post is rarely a purely private conversation. Even a message shared with a limited circle is published to others and can be screenshotted, forwarded, and amplified. The more public the posting, the further it is from the purely private conversation that the Manual suggests should not ordinarily be charged, and the more comfortably it sits within the article. A genuinely private direct message to a single confidant is closer to the private-conversation example, but officers routinely overestimate how private their online communications really are.
What counts as contemptuous
Satisfying the publication element is not the end of the inquiry. The words must actually be contemptuous. The Manual draws a firm line between contempt and criticism. Words are contemptuous when they are scornful, disrespectful, or express disdain. Adverse criticism of an official or legislature named in the article, even harsh criticism offered in the course of political discussion and emphatically expressed, is not necessarily contemptuous and may not be chargeable if it is not personally contemptuous. So an officer’s pointed disagreement with a policy of the President or a vote of Congress is ordinarily protected ground, while a post heaping personal scorn and disdain on a covered official can cross into the offense. The line is between attacking ideas and pouring contempt on the person or institution.
Two recurring limits
Two limits frequently decide these cases. First, the target must be on the list. Article 88 protects specific officials and bodies. Contempt aimed at an individual member of Congress, as opposed to Congress as an institution, falls outside the article, as does contempt aimed at officials not named. Second, for the Governor and legislature category, the protection extends only to the jurisdiction in which the officer is on duty or present, a geographic limit that has no analog for the federal officials.
It is also worth noting that conduct not reaching Article 88 is not necessarily safe. The same post might be addressed under service social media and conduct policies, under Article 133 for conduct unbecoming an officer, or under Article 134 if it is prejudicial to good order and discipline or service-discrediting. And First Amendment considerations apply with reduced force in the military context, where courts have long recognized that service members’ speech can be restricted in ways civilian speech cannot, although the contempt-versus-criticism line is itself shaped by free-expression concerns.
The bottom line
For purposes of Article 88, what matters is not a free-standing category of public conduct but the article’s publication element, the requirement that the contemptuous words come to the knowledge of someone other than the officer through the officer’s own act. A social media post is an act of publication, so contemptuous words about a covered official posted online generally satisfy that element, and the more public the post, the more clearly it does so and the further it sits from the purely private conversation that ordinarily should not be charged. But the post is chargeable only if it actually expresses contempt rather than criticism, only if the target is one of the officials or institutions the article protects, and, for state officials, only within the jurisdiction where the officer serves. A commissioned officer should treat any online statement about these officials as published to the world, because for Article 88 purposes, that is effectively what it is.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
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Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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