Article 88 of the Uniform Code of Military Justice makes it an offense for a commissioned officer to use contemptuous words against certain high officials. What counts as contemptuous, however, often cannot be judged from the words alone. The same phrase can be a heated political opinion in one setting and a disdainful personal insult in another. That is why context is central to an Article 88 prosecution, and why the military judge’s instructions to the members tell them how to weigh it. Those instructions, drawn from the standard military judges’ benchbook, frame both the elements the members must find and the contextual judgments they must make.
The elements the members are told to find
For an Article 88 charge, the military judge instructs the members that they must be convinced beyond a reasonable doubt of each element. Those elements are that the accused was a commissioned officer; that the accused used certain words against an official or body named in the article; that by an act of the accused those words came to the knowledge of a person other than the accused; and that the words were contemptuous. The officials and bodies protected by the article are specifically enumerated: 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. The instruction makes clear that the article applies to commissioned officers.
The instruction on contemptuous words and context
The pivotal instruction concerns the meaning of contemptuous. The military judge tells the members that contemptuous words are words that are insulting, rude, or disdainful, or that otherwise disrespectfully attribute to the official a quality of meanness, disreputableness, or worthlessness. Crucially, the judge instructs that words may be contemptuous either on their face or by the context in which they were used. That single phrase, by the context, is what directs the members to look beyond a literal reading and to consider the circumstances surrounding the statement.
In practice this tells the members that they may find words contemptuous even if the words are not facially insulting, provided the context supplies the contemptuous character, and conversely that words which might look harsh in isolation must still be evaluated in light of how and where they were said. The members are asked to determine the character of the statement as a whole, not to convict on the bare presence of charged words.
The protected category of political criticism
The benchbook framework includes an important limiting instruction that is itself about context. The members are told that, if not personally contemptuous, adverse criticism of one of the named officials or legislatures made in the course of a political discussion does not violate the article, even if the criticism is expressed emphatically. The line the instruction draws is between personal contempt directed at the official and forceful political disagreement directed at policies or positions. Strong, even vehement, political criticism is not, by itself, the offense; personally contemptuous abuse is.
The instruction also signals that purely private expressions of opinion ordinarily should not be treated as the offense. This connects directly to the element requiring that the words come to the knowledge of a third person, and it reinforces that the article targets contemptuous communication rather than private thought or casual remark.
Factors that aggravate, supplied by context
Context does more than separate guilt from innocence; it can also bear on the seriousness of the conduct. The benchbook framework recognizes that giving broad circulation to a written publication containing contemptuous words, or uttering such words in the presence of military subordinates, aggravates the offense. So the setting and audience are relevant not only to whether the words were contemptuous but also, where guilt is found, to how the conduct is weighed. Members evaluating the circumstances may therefore consider where the words were spoken or published and who heard them.
How the members are guided to apply context
Putting the instructions together, the military judge guides the members through a contextual analysis in roughly this order. First, identify the words actually used and confirm they were directed against a named official or body. Second, determine whether those words came to the knowledge of a third person. Third, and most importantly, decide whether the words were contemptuous on their face or by context, considering the surrounding circumstances, the manner of expression, and the setting. Fourth, apply the limiting principle that emphatic but not personally contemptuous political criticism is not the offense, and that purely private opinion ordinarily is not charged. Throughout, the members must measure everything against the beyond a reasonable doubt standard. The instruction thus channels the members’ attention to the whole circumstance of the statement rather than to an isolated reading of the charged language.
Why this matters to an accused officer
For a commissioned officer facing an Article 88 charge, the contextual instructions are often where the case is won or lost. Because words can be found contemptuous by context, the defense will want to develop the full setting in which the statement was made, including whether it was part of a genuine political discussion, whether it was personal abuse or policy criticism, the audience, and the manner of delivery. The protected category of emphatic political criticism, and the ordinary exclusion of purely private opinion, give counsel concrete instructions to argue from. Conversely, the aggravating factors warn that broad publication or speaking before subordinates can deepen exposure.
Bottom line
Military judges instruct members in Article 88 cases to evaluate context at the heart of the offense by telling them that words may be contemptuous on their face or by the context in which they were used, while also instructing that emphatic but not personally contemptuous political criticism, and purely private opinion, are generally not the offense. Context likewise informs the recognized aggravating circumstances of broad circulation and utterance before subordinates. An officer facing such a charge should work closely with defense counsel to build the contextual record that these instructions make decisive.
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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