This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
Article 88 of the UCMJ (10 U.S.C. § 888) does something no other provision in the code does: it makes speech itself a criminal offense, but only for one category of service member, and only when directed at a specific list of officials. A commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the governor or legislature of a state in which the officer is on duty or present, commits an offense punishable by dismissal, total forfeiture of all pay and allowances, and up to one year of confinement.
No other UCMJ article so explicitly criminalizes what a service member says rather than what they do. And no other article applies to such a narrow class of accused, commissioned officers only. Enlisted members, warrant officers, and cadets who have not been commissioned fall outside its reach entirely, though their contemptuous speech may be prosecuted under Article 134 as conduct prejudicial to good order and discipline.
Who Is Protected, and Who Is Not
The list of protected officials is specific and closed. The statute names the President, the Vice President, Congress as an institution, the Secretary of Defense, the secretaries of the military departments, 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 MCM 2024 (Part IV, Paragraph 13) specifies the elements: the accused was a commissioned officer who used contemptuous words toward specified officials, and the behavior was not otherwise protected expression.
What the list excludes matters as much as what it includes. Individual members of Congress are not covered, contempt directed at a specific senator or representative falls outside Article 88 unless it simultaneously constitutes contempt toward Congress as a body. Lieutenant governors are not covered. Cabinet members other than those named are not covered. Foreign officials, regardless of rank or alliance status, are not covered. Notably, the commandant of the officer’s own service is not covered.
Geographic limits apply to governors and legislatures: the officer must be on duty or present in that state. A commissioned officer stationed in Virginia who publicly insults the governor of California has not violated Article 88. The same officer who deploys to a training exercise in California and then makes the same statement has.
Article 88 is not a general prohibition on criticizing government. It is a targeted restriction designed to protect the specific civilian officials who exercise direct authority over the military, and it applies only to the officers who represent the military’s leadership class. The principle it enforces is civilian control, the constitutional framework under which elected and appointed civilians direct the armed forces, and the uniformed leadership refrains from publicly undermining that direction.
Where Criticism Ends and Contempt Begins
The most litigated question under Article 88 is not whether the officer spoke, it is whether what they said was contemptuous. In practice, the MCM draws a line narrower than most people expect. Adverse criticism of a named official, even if emphatically expressed, is not necessarily contemptuous. A commissioned officer who writes that a policy decision was wrong, or that a particular strategy has failed, or that leadership should change course, is engaging in criticism, not contempt. The distinction turns on whether the words express scorn, disdain, or disrespect toward the official as a person or officeholder, rather than reasoned disagreement with their actions.
The MCM also notes that expressions of opinion in purely private conversation should not ordinarily be charged. This is guidance, not a bright-line rule, commanders retain discretion, but it signals that Article 88 is not designed to police dinner-table opinions. What elevates a statement from criticism to contempt, and from private opinion to chargeable offense, is typically some combination of public utterance, presence of subordinates, and language that goes beyond policy disagreement to personal attack.
Social media has complicated this calculus. A post to a personal account with 200 followers reaches further than a remark at a dinner party. A viral video reaches further still. UCMJ does not distinguish between speaking to a room of five and publishing to an audience of five million, but the practical consequences of broad circulation are relevant to both charging decisions and sentencing. The MCM identifies broad circulation and utterance before military subordinates as aggravating factors.
The landmark prosecution under Article 88 is United States v. Howe, 37 C.M.R. 429 (C.M.A. 1967), where the court upheld a conviction and established that Article 88’s restriction on officer speech survives constitutional scrutiny under the military’s distinct legal framework.
That framework rests on Parker v. Levy, 417 U.S. 733 (1974), in which the Supreme Court held that the military is a specialized society separate from civilian society, and that the UCMJ’s restrictions on speech, including provisions like Article 88, are constitutionally permissible because military necessity demands a level of discipline and obedience that civilian life does not.
The Gap Article 88 Creates, and How Article 134 Fills It
Article 88’s limitation to commissioned officers creates an obvious question: what happens when an enlisted member or warrant officer makes the same contemptuous statement that would be criminal for a commissioned officer?
The answer is Article 134, the UCMJ’s general article, which criminalizes conduct that is prejudicial to good order and discipline or service-discrediting. An enlisted service member who publicly uses contemptuous language against the President or another official cannot be charged under Article 88, but the same conduct can be charged under Article 134 if the prosecution can establish the terminal element, that the conduct was prejudicial to good order and discipline or was of a nature to bring discredit upon the armed forces.
The practical difference is significant. Article 88 requires only that the officer used contemptuous words against a listed official and that the words became known to another person. Article 134 requires proof of the terminal element, which adds a layer of factual dispute. Did the statement actually prejudice good order and discipline? Was it actually service-discrediting? These questions give the defense more room to argue than Article 88’s relatively straightforward elements provide.
Officer Standard vs. Enlisted Standard
Article 88 is not a general prohibition on criticizing government. The UCMJ holds commissioned officers to a higher standard precisely because they hold commissions, they serve at the pleasure of the President, they take an oath that carries specific obligations of conduct, and they occupy positions of command authority over enlisted members. Article 88 reflects the view that an officer publicly expressing contempt for civilian leadership does something qualitatively different from an enlisted member doing the same, because the officer’s position amplifies the message and the damage it does to civilian control.
Article 133 (Conduct Unbecoming an Officer and a Gentleman) further reinforces this. An officer’s contemptuous speech may violate both Article 88 and Article 133 simultaneously. The charges are not duplicative because each protects a different interest: Article 88 protects specific civilian officials, while Article 133 protects the reputation and standards of the officer corps.
The result is a layered system. Commissioned officers face the most exposure: Article 88, Article 133, and potentially Article 134. Enlisted members face Article 134 alone but with its broader reach and more flexible charging. The asymmetry is deliberate. An officer’s commission carries privileges and obligations that enlisted service does not, and the UCMJ calibrates its speech restrictions to match. Whether that calibration remains appropriate in an era of social media, where an enlisted member’s post can reach millions as easily as an officer’s, is a question the current statute does not answer.
Joseph L. Jordan, Attorney at Law: Article 88 makes it a criminal offense for a commissioned officer to use contemptuous words against the President, Vice President, Congress, Secretary of Defense, military department secretaries, Secretary of Homeland Security, or state governors and legislatures. It applies only to commissioned officers.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.