Defense Department Directives and Uniform Code of Military Justice

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There are multiple military directives and regulations that limit service members’ free speech rights. These are found within Defense Department Directives and Uniform Code of Military Justice (UCMJ). Outside of the military, much of these restrictions would be allowed unconstitutional. However, courts tend to defer to the military’s courts, so these limitations have continued. Congress enacted the UCMJ in 1950. Listed in the UCMJ are the “Punitive Articles.” [8] This section includes four specifically criticized articles. These are Article 134; Article 133, Conduct Unbecoming an Officer and a Gentleman; Article 92, Failure to Obey Order or Regulation; and Article 88, Contempt Toward Officials. [8]

I. Free speech court cases that have resulting UCMJ Regulations.
U.S. v. Howe
In 1967, 2nd Lt. Henry H. Howe was convicted in a court martial for using contemptuous words towards the president and behavior inappropriate for an officer and a gentleman. This resulting from his participation during a Vietnam War protest. Howe was sighted walking with protesters, holding a sign that read, “LET’S HAVE MORE THAN A ‘CHOICE’ BETWEEN PETTY, IGNORANT, FACISTS in 1968” on the front and “END JOHNSON’S FACIST AGRESSION IN VIETNAM” on the back. [9] Howe did not organize the protest, but joined in as it progressed. He was also not on duty and not wearing a uniform.
He appealed to the U.S. Court of Military Appeals, stating that his charges violated the First Amendment. The court spoke of the judicial history of Article 88 and its precedent, and noted that “the evil which Article 88 seeks to avoid is the impairment of discipline and the promotion of insubordination by an officer of the military service in using contemptuous words toward the Presi...

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...arching Uniform Code of Military justice and DoD directives it is apparent that the First Amendment free speech guarantees within the U.S Constitution can and have been curtailed for military operational success. This includes preventing dissidence, disobedience, and exposure. Specifically, it should be noted that many service members are unaware of the speech limitations enforced by UCMJ articles 88, 92, 133, and 134. Further, the actions of military personnel online in blogs and chatrooms – despite the lack of intense regulations on civilians – can prove damaging to their career. Lastly, it is interesting to learn that while deployed at sea or in a combat zone, military personnel are received censored television and radio. Ultimately, the utility of all of this censorship must be weighed against the real, potential damages that a lack of censorship would inflict.

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