Contemptuous Speech Against the President

Discussion in 'Politics' started by mudwhistle, Nov 17, 2010.

  1. mudwhistle
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    mudwhistle Diamond Member

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    A question was raised during an EEO class today about talking politics in the shop. Our instructor told us that as Federal Employees we weren't allowed to criticize the President's policies. I decided to look it up.

    Military retirees fall under the article under some conditions. The only exception seems to be political conversations.

    Nobody's ever been convicted for bad-mouthing the President. They have to have done it in an official capacity it seems for it to stick. Freedom of speech allows a member of Congress or civilian to criticize the President where as an active duty member or retiree cannot.

    Harry Reid called President Bush a loser once. If he had been ex-military and receiving a pension he could have been nailed under Article 88 of the UCMJ especially because he was in an official capacity when he said it. It's still kind of shaky it seems.

    So was the instructor full of it or was she telling it like it is. Are Federal employees prohibited from bad-mouthing the President and his policies?

    Link

    Article 88
     
  2. Quantum Windbag
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    Quantum Windbag Gold Member

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    The UCMJ only applies to military, not federal employees. Article 88 applies only to commissioned officers. I am pretty sure he is full of it, and bet he personally had no problem ripping Bush's policies.
     
  3. The Infidel
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    The Infidel EVIL CONSERVATIVE

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    I dont know.... ask the guy who called Biden "Bite me"


    I think its BS, but I wouldnt do it... just b/c he is your boss after all.

    In private I'd be throwing darts at a pic of him though... fuk him!
     
  4. Cecilie1200
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    Cecilie1200 Gold Member

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    The way it was explained to me, away back when I was working for the Post Office, is that I can say anything I want in - for example - a conversation over lunch with my fellow employees. What I can't do is - also for example - go out on a mail route in a uniform and badmouth the President to the people I encounter. In the first case, I'm just speaking as a private citizen; in the second, I'm speaking as a representative of the Post Office, in which case the President is, in effect, my boss.
     
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  5. Quantum Windbag
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    Quantum Windbag Gold Member

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    They might be able to fire you, if they can show that you did it in an official capacity, but they cannot prosecute you.
     
  6. Cecilie1200
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    Cecilie1200 Gold Member

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    Dunno. I wasn't paying much attention to the possible repercussions, since I would never be so tacky and unprofessional as to badmouth my boss or my employer while in an official capacity.
     
  7. RetiredGySgt
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    RetiredGySgt Platinum Member

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    Only applies to commissioned Officers. Enlisted are not covered by that UCMJ article.
     
  8. mudwhistle
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    mudwhistle Diamond Member

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    Actually I read that Enlisted are included. It all seems to be a bit vague. Even the defenses are a bit vague because it doesn't go into detail on what is considered political discussion.

    I know that while active duty I was prohibited from saying anything derogatory about President Clinton while acting in an official capacity....and a policy letter was released shortly after Obama assumed the duties of POTUS stating that federal employees may be punished under articles in the UCMJ.

    It all seems a bit fuzzy. I was hoping somebody would be able to clarify it.
     
    Last edited: Nov 18, 2010
  9. RetiredGySgt
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    Enlisted would be charged with article 134 the catch all article. Your article is clear it ONLY applies to COMMISSIONED OFFICERS. There are several articles like that.
     
  10. daveman
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    daveman Diamond Member

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    Only one officer has been court-martialed for violating Article 88:
    Since the UCMJ was enacted in 1950 only a single known
    court-martial has occurred pursuant to Article 88.28 In United
    States v. Howe, an Army Lieutenant was convicted for carrying
    a sign during an antiwar demonstration that read “Let’s Have
    More Than A Choice Between Petty Ignorant Facists In 1968”
    on one side and “End Johnson’s Facist Aggression In Viet
    Nam” on the other side.29 Lieutenant Howe did not participate
    in organizing the demonstration, but merely joined it after it
    began.30 During the half-hour demonstration, Howe was offduty,
    in civilian clothes, and no one at the demonstration knew
    of his military affiliation.31 Howe came to the Army’s attention
    only because a gas station attendant, who Howe had asked for
    directions, spotted the lieutenant’s sign and an Army sticker on
    his vehicle and subsequently notified the local military police.32​

    Article 88 does apply to retirees:
    One large and significant body of individuals that
    are not beyond the reach of this provision is retirees, however.
    Article 2(a)(4) provides that the military has UCMJ jurisdiction
    over “[r]etired members of a regular component who are entitled
    to pay.” Albeit only one known court-martial of a military
    retiree under Article 88 or its predecessors exists,41 and courtsmartial
    of retirees are rare and require special permission,42 no
    legal prohibition exists precluding application of Article 88 to
    these members of our land and naval forces.43​

    Regarding enlisted:
    Id. In 1956 the word “commissioned” was inserted before officer “for clarity.” 10 U.S.C.A. § 888, at 407 (West 1998). Because Article 88 applies only to commissioned
    officers, legal commentators are split as to whether enlisted service members may be charged under other articles for contemptuous words. Compare CHARLES
    A. SHANOR & L. LYNN HOGUE, MILITARY LAW IN A NUTSHELL 85 (2d ed. 1996) (“imilar conduct by enlisted personnel and warrant officers can be sanctioned under
    other Articles such as Article 134 (service-discrediting conduct), Article 89 (disrespect), and Article 91 (insubordination).”) with Kester, supra note 6, at 1735 (“Of
    very questionable legality has been the Army’s occasional resort to the general article to punish enlisted men, whom Congress in 1950 exempted from Article 88, for
    statements disrespectful of the President.”); id. at 1735 n.239 (noting that military case law holds “that the general article cannot be used to avoid proving an essential
    element of a crime dealt with in a specific article of the UCMJ.”) and Brown, supra at 102-3 (noting that unlike an officer, “the enlisted soldier enjoys the same rights
    as his civilian brethren with regard to using contemptuous words towards high-level civilian authority.””) and ROBERT S. RIVKIN, GI RIGHTS AND ARMY JUSTICE: THE
    DRAFTEE’S GUIDE TO MILITARY LIFE AND LAW 111 (1970) (“f an enlisted man called the President an abusive name, it would probably amount to a deprivation of his
    constitutional free speech rights to punish him for it.”). In 1962, an Army private was convicted of violating Article 134 after using obscene language with respect to
    President Kennedy. Kester, supra note 6, at 1735 n.239.


    I can't find the citation for the Army private convicted at the moment. Will get it later.
     

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