Ask an attorney: getting political

Q: I heard that it is illegal for a service member to say anything negative about Congress or President Obama. Is that true? What about my First Amendment rights?

A: There is little doubt that freedom of speech, guaranteed by the First Amendment to the United States Constitution, is one of the most crucially important rights every American possesses. In fact, service members are charged with defending that freedom with their lives. However with election season already well underway, it is important to realize that service members must be careful about how they exercise their freedom of speech to make sure it doesn’t conflict with the Uniform Code of Military Justice.

Ever since the earliest days of our nation’s armed forces, there have been limits on what soldiers and sailors could and could not say. The Articles of War, a precursor to the Uniform Code of Military Justice, which were passed in 1775, made it a crime to use profane language of any kind, to show disrespect toward or speak false words about commanding officers, and to provoke or insult other soldiers. Many of these remain crimes to this day. Article 88 of the UCMJ makes it a criminal offense for a commissioned officer to use “contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, (or) the Secretary of a military department….”

While this may seem like an anachronism, there have been many cases of service members getting in trouble for saying negative things about the President. In 2012, a Marine stationed at Camp Pendleton, California, was punished for violating the UCMJ for hosting a Facebook page that criticized President Barack Obama. A few years earlier an Army Lieutenant was court-martialed for charges including speaking ill of President George W. Bush and the Iraq war.

Q: So what is allowed and what is not?

A: In general, the Department of Defense wants to ensure that the military remains a neutral, apolitical organization that is motivated by a desire to keep the United States safe and not by any particular political ideology.

In addition to Article 88’s prohibition on contemptuous speech by commissioned officers, Department of Defense Directive 1344.10 says service members may not participate in the management of partisan political campaigns; make speeches before partisan political gatherings; write or endorse partisan political articles; participate in any TV or radio discussions as an advocate for against a partisan political candidate, party, or cause; serve in official capacity or sponsor a partisan political club; march or ride in partisan parades; attend partisan events as an official representative of the armed forces; display large signs, banners or posters on private vehicles; or display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.

We are still allowed to vote, express our personal opinions, and attend rallies, speeches, and events as long as we are out of uniform and there is no confusion about whether we are acting in a personal or official capacity. In order to maintain the integrity of the armed forces, it’s a service member’s duty to stay out of political conflicts and maintain professionalism. American citizens need to feel confident that the military is out there protecting them, regardless of individual service members’ political affiliations.

Thomas Jefferson summarized it best when he said that while it is “the right of any (service member) to give his vote at elections as a qualified citizen, it is expected that he will not attempt to influence the votes of others nor take part in the business of electioneering, that being deemed inconsistent with the spirit of the Constitution and his duties to it.”

If you are curious about whether your political activities are permissible under federal and military laws and regulations, make an appointment to speak with an attorney at your local legal assistance office and we can give you proper guidance.

Editor’s note: This article is for general information only and does not constitute legal advice or create an attorney-client relationship. You should always consult an attorney for specific legal questions.