United States v. Howe
17 C.M.A. 165, 17 USCMA 165, 37 C.M.R. 429 (1967)
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Rule of Law:
Articles 88 and 133 of the Uniform Code of Military Justice (UCMJ), which prohibit commissioned officers from using contemptuous words against the President and engaging in conduct unbecoming an officer, are constitutional and do not violate the First Amendment's guarantee of freedom of speech, as the unique need for discipline and order in the military outweighs an officer's individual speech rights in this context.
Facts:
- Second Lieutenant Henry H. Howe, Junior, a commissioned officer on active duty in the U.S. Army, learned of a planned anti-Vietnam War demonstration in El Paso, Texas.
- While off-duty and not in uniform, Howe attended the demonstration on November 6, 1965, which was also attended by a counter-demonstration and a crowd of approximately 2,000 people.
- Howe was not an organizer of the event but joined the picket line after it began.
- He carried and displayed a placard with two messages: 'LET’S HAVE MORE THAN A CHOICE BETWEEN PETTY IGNORANT RACISTS IN 1968' on one side, and 'END JOHNSON’S RACIST AGRESSION IN VIET NAM' on the other.
- Military policemen were present at the scene, and the demonstration was filmed by local television stations and broadcast to the public.
Procedural Posture:
- Petitioner Second Lieutenant Howe was charged before a general court-martial for violating UCMJ Articles 88 (contemptuous words against the President) and 133 (conduct unbecoming an officer).
- A third charge for violating Article 134 (disloyal language) was dismissed by the law officer.
- The court-martial convicted Howe of the Article 88 and 133 charges and sentenced him to dismissal, total forfeitures, and two years of confinement.
- The convening authority approved the sentence but reduced the confinement period to one year.
- A board of review in the office of the Judge Advocate General of the Army affirmed the findings and sentence.
- Howe petitioned the United States Court of Military Appeals for review, which was denied.
- Howe then filed a petition for reconsideration, which the Court of Military Appeals granted for the purpose of hearing oral argument.
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Issue:
Do Articles 88 and 133 of the Uniform Code of Military Justice, which prohibit an officer from using contemptuous words against the President and engaging in conduct unbecoming an officer, violate the First Amendment's guarantee of freedom of speech when applied to an officer's off-duty political demonstration?
Opinions:
Majority - Kilday, Judge
No, Articles 88 and 133 of the Uniform Code of Military Justice do not violate the First Amendment. The court holds that the freedom of speech is not absolute and must be balanced against the government's interest in maintaining a disciplined and effective military. The evil that Article 88 seeks to prevent is the impairment of discipline and promotion of insubordination that arises when an officer uses contemptuous words against the Commander-in-Chief. The court reasons that such conduct during a time of armed conflict presents a 'clear and present danger' to military discipline. Furthermore, the court gives great weight to the long history of these articles, noting that precursors to Article 88 existed before the Constitution and were reenacted by the same Congresses that adopted the Bill of Rights, constituting a 'contemporary construction' of the Constitution that affirms their validity. Similarly, Article 133, prohibiting conduct unbecoming an officer, has been a long-standing and well-understood tenet of military law necessary to uphold the honor and integrity of the military profession, and applies to an officer's conduct both on and off duty.
Analysis:
This decision solidifies the principle that members of the armed forces possess a scope of First Amendment protection that is different from and more limited than that of civilians. It establishes that speech by military personnel, even when off-duty and in a civilian setting, can be restricted if it is deemed detrimental to good order and discipline. The court's heavy reliance on the historical lineage of the military articles and the 'contemporary construction' of the Constitution reinforces the idea that the military is a specialized society governed by its own set of rules necessary for its function. The case serves as a key precedent for future cases involving the balance between service members' individual rights and the institutional needs of the military, particularly regarding criticism of the chain of command.
