UCMJ ARTICLE 88: CONTEMPT TOWARD OFFICIALS
Executive Summary
Key Takeaway: UCMJ Article 88 criminalizes commissioned officers using contemptuous words against the President, Vice President, Congress, Secretary of Defense, Secretary of Homeland Security, secretaries of military departments, state governors, or state legislatures. The offense is unique to commissioned officers and does not apply to enlisted members or warrant officers. Maximum punishment includes dismissal, forfeiture of all pay and allowances, and confinement for 1 year. Article 88 protects civilian control of the military by prohibiting public criticism that undermines respect for civilian authority, though it raises First Amendment concerns regarding protected political speech.
What Article 88 Covers: Using contemptuous words against the President of the United States, Vice President, Congress as an institution, Secretary of Defense, Secretary of Homeland Security, Secretary of military department, governors of states or territories, or legislatures of states or territories as institutions. Making statements that impugn the dignity or authority of these officials in their official or private capacity. Publishing written materials or making speeches expressing contempt for protected officials. The truthfulness or falsity of the statements is immaterial to guilt.
Critical Article 88 Elements: Only commissioned officers can be charged under Article 88. The words must be contemptuous, meaning they show scorn, disrespect, or disdain beyond mere criticism. The words must come to the knowledge of at least one person other than the accused. Whether directed at official capacity or private conduct does not affect liability. The offense is complete when contemptuous words are communicated regardless of whether harm results.
Why Article 88 Cases Present Unique Challenges: Balancing military discipline requirements with First Amendment free speech protections creates constitutional tension. Distinguishing protected political criticism from prohibited contemptuous speech requires subjective judgment. Social media has dramatically expanded opportunities for Article 88 violations. Enforcement has been historically selective creating fairness concerns. Officers facing charges must navigate complex questions about what constitutes impermissible contempt versus legitimate policy disagreement.
Immediate Steps if Under Investigation: Exercise your right to remain silent under Article 31(b) if questioned about statements you made regarding civilian officials. Do not attempt to explain context or defend your statements without defense counsel present. Preserve all documentation of the statements in question including social media posts, emails, or recorded remarks. Document the context in which statements were made and your intended audience. Consult with experienced military defense counsel immediately.
If you are under investigation for contempt toward officials or have been charged under Article 88, contact Joseph L. Jordan at (888) 643-6254 immediately. Early legal intervention can address First Amendment defenses and challenge whether your statements constitute prohibited contempt or protected speech.
Understanding UCMJ Article 88
Article 88 of the Uniform Code of Military Justice prohibits commissioned officers from using contemptuous words against certain high-ranking civilian officials. This provision reflects the fundamental principle of civilian control over the military by preventing officers from publicly undermining the authority and dignity of civilian leadership. Article 88 is unique in that it applies only to commissioned officers, excluding enlisted members and warrant officers from its scope.
The policy behind Article 88 recognizes that commissioned officers hold positions of significant responsibility and authority within the military. Public expressions of contempt by officers toward civilian leadership could undermine military discipline, create discord within the ranks, and damage the essential relationship between the military and its civilian leadership. The provision seeks to maintain proper respect for civilian authority while preserving good order and discipline.
Article 88 has generated significant constitutional debate regarding the extent to which military service requires officers to surrender First Amendment free speech rights. Courts have generally upheld Article 88 as a permissible restriction on military speech, though its application must be carefully limited to genuinely contemptuous expressions rather than legitimate policy criticism. Defending officers against contempt charges requires constitutional law expertise.
Elements of Article 88
To obtain a conviction under Article 88, the prosecution must prove four elements beyond a reasonable doubt.
Element 1: The accused was a commissioned officer
Article 88 applies only to commissioned officers. This includes officers in the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard who hold commissions. The provision does not apply to enlisted members, warrant officers, or cadets or midshipmen who have not yet been commissioned.
The rationale for limiting Article 88 to commissioned officers is that officers hold positions of greater responsibility and authority, serve as leaders within the military structure, represent the military to the public and subordinates, and have special obligations to uphold military values and civilian authority. Enlisted members and warrant officers are not subject to Article 88, though they may face charges under Article 134 for similar conduct that is prejudicial to good order and discipline.
Element 2: The accused used certain words
The government must prove the accused used words, whether spoken or written. This includes oral statements, written materials including letters, articles, or social media posts, speeches or presentations, interviews with media, or any other form of verbal or written communication.
The words must have been actually communicated to someone. Thoughts or private notes not shared with others do not satisfy this element.
Element 3: By an act of the accused these words came to the knowledge of a person other than the accused
The words must have been communicated to at least one person other than the accused. Broad public dissemination is not required. A statement to a single individual satisfies this element. However, purely internal thoughts or personal notes never shared with anyone do not constitute the offense.
The Manual for Courts-Martial indicates that expressions communicated in a purely private conversation should not ordinarily be charged. This reflects prosecutorial discretion guidance rather than a formal element. However, statements to subordinates or statements that achieve wide circulation through writing or social media are more likely to be prosecuted and may be considered aggravating factors.
Element 4: The words were contemptuous against protected officials
The critical element is that the words must be contemptuous and directed against specific protected officials.
Protected officials include:
- President of the United States
- Vice President of the United States
- Congress (as an institution, not individual members)
- Secretary of Defense
- Secretary of Homeland Security
- Secretary of a military department (Army, Navy, Air Force)
- Governor of any State, Territory, Commonwealth, or possession in which the accused is on duty or present
- Legislature of any State, Territory, Commonwealth, or possession in which the accused is on duty or present (as an institution, not individual legislators)
Important clarification: Individual members of Congress or state legislatures are not protected under Article 88. Only Congress or a state legislature as an institution is protected. Contemptuous words toward an individual senator or representative do not violate Article 88, though such conduct might violate other UCMJ provisions.
Contemptuous words defined: Words are contemptuous when they are scornful, disrespectful, or express disdain. Mere criticism, even harsh criticism, is not necessarily contemptuous. The words must go beyond disagreement with policies and convey disrespect for the official.
Examples of contemptuous language include epithets or insulting nicknames, statements impugning character or integrity, expressions of scorn or mockery, statements suggesting the official is unfit for office, or language that tends to bring the official into public ridicule or disgrace.
Not contemptuous: Respectful disagreement with policies, criticism of specific decisions using temperate language, academic or analytical discussion of leadership performance, or statements lacking scornful or derisive tone generally do not constitute contempt. The context and tone matter significantly.
Official versus private capacity irrelevant: Unlike some other offenses, Article 88 does not distinguish between contempt expressed toward an official in their official capacity versus their private capacity. Contemptuous words about a protected official in any capacity can violate Article 88. This reflects the provision's focus on maintaining respect for civilian leadership regardless of whether criticism relates to official duties or personal conduct.
Truth or falsity immaterial: The Manual for Courts-Martial explicitly provides that truth is not a defense to Article 88. Whether the contemptuous statements are factually accurate or inaccurate is irrelevant to guilt. This distinguishes Article 88 from defamation, where truth is a defense. The offense focuses on the contemptuous nature of the expression, not its veracity.
Maximum Punishment Under Article 88
Article 88 violations carry significant maximum penalties:
Maximum authorized punishment:
- Dismissal (officer equivalent of dishonorable discharge)
- Forfeiture of all pay and allowances
- Confinement for 1 year
For offenses committed on or after 27 December 2023, maximum punishments are subject to sentencing parameters established by Executive Order 14103 pursuant to the Military Justice Act of 2016. Article 88 is classified as Offense Category 1 with a sentencing parameter range of 0 to 12 months confinement. Consult with defense counsel regarding how category-based sentencing applies to specific cases.
Beyond court-martial punishment, Article 88 convictions have serious career consequences. Dismissal ends military service with loss of retirement benefits for officers who have not yet reached retirement eligibility. The conviction creates a federal criminal record affecting future employment, security clearances, and professional licensing. For career officers, conviction typically means immediate end of military service and loss of decades of accumulated service toward retirement.
First Amendment Considerations
Article 88 raises significant First Amendment issues. Officers do not entirely surrender their free speech rights upon accepting a commission, but those rights are subject to reasonable restrictions necessary for military discipline and effectiveness.
Constitutional framework: Courts apply a balancing test weighing the government's interest in maintaining military discipline and respect for civilian authority against the officer's free speech rights. Courts have generally upheld Article 88 as constitutional when applied to genuinely contemptuous speech, but have required narrow construction to avoid chilling legitimate political expression.
No truth defense: The Manual for Courts-Martial does not recognize truth as a defense to Article 88. The truthfulness or falsity of contemptuous statements is immaterial. This reflects that the offense targets the contemptuous expression itself, not false statements.
Protected speech: Officers retain the right to vote, express political opinions in private, engage in respectful policy criticism, participate in academic or analytical discourse about government and military affairs, and comment on matters of public concern using temperate language. The key distinction is between respectful disagreement (protected) and contemptuous ridicule (prohibited).
Department of Defense policy: DoD Directive 1344.10 provides guidance on political activities by military members. While primarily addressing partisan political activity, it reinforces that service members must avoid language that brings discredit upon the armed forces or creates appearance of official endorsement of political positions. Officers should familiarize themselves with these restrictions.
Social media complications: Social media has dramatically expanded opportunities for Article 88 violations. Posts that officers might consider casual comments or private expressions can reach wide audiences and create permanent records. Officers must exercise particular caution on social media platforms, understanding that posts visible to friends, followers, or the public can serve as basis for Article 88 charges if they contain contemptuous language toward protected officials.
Historical Context and Selective Enforcement
Article 88 has existed since the Articles of War and has been included in the UCMJ since its enactment in 1950. However, enforcement has been historically sporadic and selective, raising fairness concerns.
Throughout different administrations, Article 88 has been invoked rarely, typically in cases of particularly egregious or public contemptuous statements. Some critics argue enforcement often depends more on the political climate and command priorities than on objective standards. Others contend selective enforcement is appropriate given the need to balance free speech with military discipline.
The rarity of prosecution creates uncertainty for officers about where the line is drawn between acceptable criticism and prohibited contempt. Officers should not assume that because contemptuous statements by other officers went unprosecuted, similar statements are permissible. Command discretion in preferring charges means enforcement can vary significantly based on context, command philosophy, and particular circumstances.
Defenses to Article 88 Charges
Defending Article 88 charges typically focuses on challenging whether the statements were actually contemptuous and raising First Amendment protections.
Words not contemptuous: If the statements constituted respectful disagreement, policy criticism, or analytical commentary rather than expressions of scorn or disrespect, they do not satisfy the contemptuous requirement. Defense may establish the statements were temperate in tone, focused on policies rather than personal attacks on officials, made in context of legitimate political or policy discourse, or lacked the elements of ridicule or mockery that characterize contempt.
Private speech not communicated: If the words never came to the knowledge of any person other than the accused, the communication element is not satisfied. Purely internal thoughts, personal diary entries never shared, or notes kept entirely private do not violate Article 88. Defense must establish no communication to others occurred.
Speech truly private: Expressions communicated in purely private conversations, particularly to family or close friends in clearly private settings, should not ordinarily be charged under prosecutorial discretion guidance. Defense may establish the statements were to family or close friends in private settings, clearly intended as private venting without expectation of wider dissemination, not made to subordinates or in context that could affect military discipline, or improperly disclosed by third parties without the accused's knowledge or consent.
Quoting or reporting: If the accused was quoting others, reporting on public discourse, or engaging in academic discussion of others' statements, this may provide defense. Mere quotation or reporting of contemptuous statements made by others, particularly when done for informational or analytical purposes, generally does not violate Article 88. However, adopting or endorsing such statements could constitute a violation.
First Amendment protection: If the statements constitute protected political speech, First Amendment defenses may apply. Defense may establish the statements were within the bounds of legitimate political discourse, constituted criticism of policies rather than contempt for officials, were on matters of public concern, or were not demonstrably more harmful to military discipline than civilian criticism routinely published.
Context and intent: The context in which statements were made matters. Defense may establish statements were taken out of context, sarcasm or humor was misinterpreted as genuine contempt, statements were made under provocation or emotional distress, or the accused lacked intent to express contempt or undermine authority.
Defending commissioned officers against Article 88 and other military offenses requires thorough First Amendment analysis and careful examination of whether statements truly constitute prohibited contempt.
Your Rights During Article 88 Investigations
Officers under investigation for Article 88 violations retain important constitutional and statutory protections.
Before any questioning you must receive Article 31 warnings informing you that you are suspected of an offense, the nature of the suspected offense, you have the right to remain silent, and any statements you make may be used against you. These protections apply regardless of the officer's rank or position.
You have the right to consult with defense counsel before and during questioning. This includes right to appointed military defense counsel at no cost, right to retain civilian counsel at your own expense, right to have counsel present during any questioning, and right to stop questioning at any time. Given the First Amendment implications of Article 88 cases, consultation with experienced counsel is particularly important.
You cannot be compelled to provide incriminating statements. Silence cannot be used as evidence of guilt. Do not attempt to explain context, defend your statements, or provide interpretations without counsel present. Statements attempting to show statements were not contemptuous often inadvertently provide evidence of the statements themselves and undermine defenses.
The Importance of Early Legal Consultation
Article 88 cases involve complex constitutional issues and subjective determinations about whether speech is contemptuous. Officers facing investigation need immediate legal counsel.
Consulting with experienced military defense counsel at the earliest indication of Article 88 investigation provides critical benefits. Counsel evaluates whether statements truly constitute contempt or fall within protected speech. Early First Amendment analysis may prevent charges from being preferred. Counsel ensures no additional statements are made that could strengthen the government's case. Counsel preserves context and evidence showing statements were not contemptuous. For cases involving social media, counsel can document deletion of posts or account settings that may be relevant.
When You Should Contact Defense Counsel
Consult with military defense counsel immediately if you are questioned about statements you made regarding civilian officials, command indicates statements you made are under review, you receive any indication that Article 88 charges may be preferred, you made statements that in retrospect could be interpreted as contemptuous, or you are concerned about social media posts or other communications. Early consultation with experienced defense counsel protects constitutional rights.
Why Choose Joseph L. Jordan for Article 88 Defense
Joseph L. Jordan is a former Army Judge Advocate with extensive experience defending officers in court-martial proceedings including cases involving free speech and First Amendment issues. As a former military prosecutor, he understands how the government evaluates contemptuous speech and attempts to distinguish prohibited contempt from protected criticism.
Our defense approach includes thorough First Amendment analysis of the statements in question, examination of context to demonstrate statements were not contemptuous, documentation of political speech protections applicable to the statements, challenge to subjective determination that statements constituted contempt, and presentation of mitigating factors including lack of intent to undermine authority and isolated nature of statements.
We represent officers worldwide at every stage of Article 88 investigation and prosecution, protecting both your military career and your constitutional rights.
Immediate Steps if You Are Under Investigation
If you are being investigated for Article 88 violations, invoke your right to remain silent and do not explain, justify, or provide context for your statements without defense counsel present. State clearly: "I wish to exercise my right to remain silent under Article 31 and consult with defense counsel before answering questions."
Do not delete social media posts or other evidence without consulting counsel first. Deletion could be viewed as destruction of evidence and create additional legal issues. Preserve all documentation of the statements including original posts, screenshots, emails, or recordings. Document the context in which statements were made including intended audience and your understanding at the time.
Do not discuss the investigation or your statements with other service members who may be interviewed as witnesses. Contact defense counsel immediately by calling (888) 643-6254 to speak with Joseph L. Jordan about your case. Early consultation protects your rights and may prevent charges from being preferred.
Frequently Asked Questions About UCMJ Article 88
What is contempt toward officials under Article 88?
Contempt toward officials is using words that are scornful, disrespectful, or express disdain toward the President, Vice President, Congress as an institution, Secretary of Defense, Secretary of Homeland Security, military secretaries, or state governors or legislatures as institutions. The offense applies only to commissioned officers and requires that the words go beyond mere criticism to express genuine contempt.
Who can be charged under Article 88?
Only commissioned officers can be charged under Article 88. Enlisted members, warrant officers, and cadets or midshipmen who have not been commissioned are not subject to this offense. The provision applies only to officers because of their special responsibilities and leadership positions.
What officials are protected by Article 88?
Protected officials include the President, Vice President, Congress as an institution, Secretary of Defense, Secretary of Homeland Security, secretaries of military departments, and governors or legislatures as institutions of any state, territory, commonwealth, or possession where the officer is present or on duty. Individual members of Congress or state legislatures are not protected.
What is the difference between criticism and contempt?
Criticism expresses disagreement with policies or decisions using respectful language. Contempt expresses scorn, disrespect, or disdain for the official. Harsh criticism may still be respectful, while contempt involves ridicule, insulting epithets, or statements that impugn the official in a disrespectful manner.
What is the maximum punishment for Article 88?
Maximum punishment is dismissal (officer equivalent of dishonorable discharge), forfeiture of all pay and allowances, and confinement for 1 year. For offenses after 27 December 2023, Article 88 is Offense Category 1 with sentencing parameters of 0 to 12 months. Conviction typically ends military career and creates federal criminal record.
Does Article 88 violate the First Amendment?
Courts have generally upheld Article 88 as constitutional when narrowly applied to genuinely contemptuous speech. Officers retain free speech rights but those rights are subject to reasonable restrictions necessary for military discipline. The key is distinguishing protected political criticism from prohibited contemptuous ridicule.
Can officers criticize government officials?
Officers can engage in respectful criticism of policies and decisions. They cannot use contemptuous, scornful, or disrespectful language toward protected officials. The distinction depends on tone, context, and whether statements cross the line from disagreement to contempt.
Do social media posts count as public statements?
Yes. Social media posts generally satisfy the element that words came to knowledge of at least one other person. Even posts to limited audiences constitute communication to others. Officers should assume any social media post could be used as basis for Article 88 charges if it contains contemptuous language.
Can private statements to friends or family violate Article 88?
Genuinely private statements to family or close friends should not ordinarily be charged under prosecutorial discretion guidance. However, if such statements are disclosed to others, the communication element is satisfied. The private nature of the conversation provides mitigation argument but does not negate the offense if elements are proven.
What are the main defenses to Article 88 charges?
Main defenses include statements were not contemptuous but rather respectful criticism, words never came to knowledge of anyone else (purely private thoughts), statements constituted protected political speech under First Amendment, statements were quoting or reporting others' remarks without endorsement, or context shows statements were misinterpreted and did not express genuine contempt.
Is truth a defense to Article 88?
No. The Manual for Courts-Martial explicitly provides that truth is not a defense. Whether contemptuous statements are factually accurate or inaccurate is irrelevant to guilt. The offense focuses on the contemptuous nature of expression, not its veracity.
Does it matter if contempt is about official or private conduct?
No. Article 88 does not distinguish between contempt expressed toward an official in official capacity versus private capacity. Contemptuous words about a protected official in any capacity can violate Article 88.
Can quoting someone else's contemptuous statements violate Article 88?
Generally, merely quoting or reporting contemptuous statements made by others for informational or analytical purposes does not violate Article 88. However, adopting, endorsing, or repeating such statements as one's own could constitute a violation.
What should an officer do if questioned about statements?
Invoke Article 31(b) rights immediately and request defense counsel before answering any questions. Do not attempt to explain context or defend statements without counsel. Any attempt to justify or contextualize statements can provide evidence of the statements themselves and undermine defenses.
Can Article 88 charges be dismissed on First Amendment grounds?
In some cases, yes. If statements clearly constitute protected political speech and do not genuinely express contempt, First Amendment defenses may result in dismissal or acquittal. Success depends on careful analysis of the statements, context, and applicable constitutional standards.
For immediate consultation regarding Article 88 charges or investigations, contact Joseph L. Jordan at (888) 643-6254. Experienced military defense representation protecting your rights and career.
Important Notice: This information is provided for educational purposes and does not constitute legal advice. Every case involves unique facts requiring individualized legal analysis. Reading this information does not create an attorney-client relationship. For advice specific to your situation, consult with a qualified military defense attorney.