Defense Department Directives And Uniform Code Of Military Justice

2972 words - 12 pages

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 President.” [9]

The military appellate court then spoke of the First Amendment and cited the U.S. Supreme Court, stating that freedom of speech is not absolute and can be limited by the government in some events. Specifically, the court used the “clear-and-present danger” test from Schenck v. U.S. (1919), and held: “In the present times and circumstances such conduct by an officer constitutes a clear and present danger to discipline within our armed services.” [9] The military appellate court concluded that Article 88 was not in violation of the First Amendment.
Parker v. Levy
In 1974, the Supreme Court case disputed the constitutionality of two UCMJ articles. Howard Levy, a captain serving as a physician in the Army, was charged under Articles 133 and 134. 134 punishes “all disorder and neglect to the prejudice of good order and discipline in the armed forces.” [8] Levy was charged as “wrongfully and dishonorably” making “intemperate, defamatory, provoking, disloyal, contemptuous and disrespectful” statements to Special Forces personnel and enlisted personnel who were patients or under his supervision. [7]

His commander ordered Levy to conduct his duties properly after the commander became aware that Levy had not been...

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