Article 88, Uniform Code of Military Justice (10 U.S.C. 888), makes it an offense for a commissioned officer to use contemptuous words against certain high officials. The statute names the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, and the Governor or legislature of any State, Commonwealth, or possession in which the officer is on duty or present. Because the article reaches speech, the question of when words rise to the level of “contempt” is delicate, and courts have developed standards to separate punishable contemptuous expression from protected criticism. The analysis turns on the elements of the offense, the meaning of “contemptuous,” and the constitutional limits recognized in the governing case law.
Who and what the article covers
Article 88 applies only to commissioned officers, not to enlisted members, and it protects only the specific officials and bodies the statute lists. To establish the offense, the prosecution must prove that the accused was a commissioned officer, that the accused used certain words against one of the named officials or legislatures, that the words came to the knowledge of a person other than the accused through some act of the accused, and that the words were contemptuous, either in themselves or because of the circumstances in which they were used. The requirement that the words reach someone else means that purely private, uncommunicated thoughts are not within the article’s scope.
The meaning of “contemptuous”
The decisive element is whether the words are “contemptuous.” Contemptuous words are those that are insulting, rude, and disdainful, or that otherwise disrespectfully attribute to the official a quality of meanness, disreputableness, or worthlessness. The inquiry is not whether the officer disagreed with the official or criticized a policy, but whether the language demeans the official in this disrespectful, derogatory sense. Courts examine the words themselves and the circumstances in which they were used, since a statement may be contemptuous on its face or may become contemptuous given its context.
Two features of the doctrine are notable. First, it is immaterial whether the contemptuous words are used against the official in an official or a private capacity; the focus is on the disrespectful character of the words, not the setting. Second, truth is not a defense. Whether the contemptuous assertions are accurate or inaccurate does not bear on guilt, because the offense punishes the contemptuous manner of the expression, not the falsity of its content.
The line between criticism and contempt
The central interpretive task is distinguishing protected criticism from punishable contempt. Adverse criticism of one of the named officials or legislatures, offered in the course of a political discussion, is not an offense even if expressed emphatically, so long as it is not personally contemptuous. Likewise, expressions of opinion made in a purely private conversation ordinarily should not be charged. The article is aimed at contemptuous ridicule that undermines discipline and respect for civilian and governmental authority, not at vigorous but respectful disagreement. Courts therefore look closely at whether the officer was expressing a critical viewpoint or instead attacking the official with disdain that crosses into contempt.
The constitutional framework
Because Article 88 regulates speech by officers, its application is shaped by First Amendment principles as understood in the military context. In Parker v. Levy, 417 U.S. 733 (1974), the Supreme Court recognized that the military is a specialized society with disciplinary needs that justify speech restrictions which would be impermissible in civilian life, and it upheld military justice provisions against vagueness and overbreadth challenges by reference to the narrowing constructions military authorities had given them. Article 88 has likewise been examined and sustained. In United States v. Howe, 37 C.M.R. 429 (C.M.A. 1967), an officer was convicted under Article 88 for carrying a sign with contemptuous words about the President, and the court rejected the argument that such speech by an officer was absolutely protected by the First Amendment, as well as the claim that the article was unconstitutionally vague. These decisions confirm that genuinely contemptuous speech by an officer can be punished, while the narrowing of the article protects ordinary political criticism.
How a court evaluates a particular statement
Applying these principles, a court assessing whether a statement shows contempt under Article 88 asks a sequence of questions. Was the speaker a commissioned officer, and was the target one of the officials or bodies the statute names? Did the words reach a third person through the officer’s own act? Were the words insulting, rude, and disdainful, or did they otherwise disrespectfully attribute meanness, disreputableness, or worthlessness to the official, judged both on their face and in context? And, finally, do the words amount to personal contemptuous ridicule rather than emphatic but respectful political criticism or private opinion? Only when the language crosses into contempt, in the disrespectful sense the doctrine defines, does it fall within the article.
Practical takeaways
Courts determine whether a statement shows contempt under Article 88 by focusing on the disrespectful, demeaning character of the words rather than on the speaker’s underlying viewpoint or the truth of the assertion. The article reaches only commissioned officers and only words directed at the specific officials and legislatures it names, communicated to a third person. Insulting, rude, and disdainful language that attributes meanness or worthlessness to a covered official can be contemptuous, while emphatic political criticism and private opinion generally are not. The constitutional decisions in Parker v. Levy and United States v. Howe confirm both that genuinely contemptuous officer speech may be punished and that the article must be read narrowly enough to leave ordinary criticism untouched.
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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