Facts
- Second Lieutenant Henry H. Howe, Jr., a U.S. Army Reserve commissioned officer on active duty at Fort Bliss, Texas, attended a public anti–Vietnam War demonstration in El Paso while off duty and in civilian clothes.
- Howe carried a hand-lettered sign stating “LET’S HAVE MORE THAN WORDS WITH THE BASTARDS IN HANOI” on one side and “END JOHNSON’S FASCIST AGGRESSION IN VIETNAM” on the other.
- The government charged Howe under Article 88, UCMJ, for using contemptuous words against the President based on the “JOHNSON’S FASCIST AGGRESSION” statement.
- A general court-martial convicted Howe and sentenced him to dismissal and additional punishment including confinement.
- The Army Board of Review affirmed the findings and sentence.
- Howe petitioned the United States Court of Military Appeals, arguing that Article 88, as applied to his off-duty protest speech, violated the First Amendment.
Issues
- Whether Article 88, UCMJ, constitutionally permits punishing a commissioned officer for publicly using contemptuous words about the President consistent with the First Amendment.
- Whether an officer’s off-duty, civilian-clothes participation in a civilian public demonstration places the speech beyond Article 88’s reach.
- Whether preserving civilian control of the military and maintaining discipline and respect for the chain of command justify restricting an officer’s public contempt toward senior civilian leaders.
Decision
- The Court of Military Appeals affirmed the conviction and upheld Article 88 as applied.
- The court held that Howe’s off-duty status and civilian attire did not exempt him from Article 88.
- The court concluded the words on the sign were “contemptuous” within Article 88’s meaning and could be punished without violating the First Amendment.
Legal Principles
- Congress may impose status-based limits on commissioned officers’ speech when reasonably tied to military discipline and respect for civilian authority.
- Article 88 applies to contemptuous words against specified civilian officials regardless of whether the officer is on or off duty and whether the statement concerns the official in an official or private capacity.
- In the military context, First Amendment protections may be more limited than for civilians when speech threatens respect for lawful civilian leadership, including the Commander in Chief.
- Political disagreement is distinct from contemptuous public insult; Article 88 targets the latter as a narrow restriction linked to officers’ obligations.
Conclusion
The Court of Military Appeals upheld Howe’s Article 88 conviction, ruling that a commissioned officer may be punished for publicly using contemptuous language about the President even when off duty and in civilian clothes, because the military’s interest in discipline and civilian control permits this limited restriction on speech.