{"id":5445,"date":"2021-06-28T05:23:32","date_gmt":"2021-06-28T09:23:32","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/nsj\/?p=5445"},"modified":"2021-07-07T08:39:28","modified_gmt":"2021-07-07T12:39:28","slug":"contemptuous-speech-rethinking-the-balance-between-good-order-and-discipline-and-the-free-speech-rights-of-retired-military-officers","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2021\/06\/contemptuous-speech-rethinking-the-balance-between-good-order-and-discipline-and-the-free-speech-rights-of-retired-military-officers\/","title":{"rendered":"Contemptuous Speech: Rethinking the Balance Between Good Order and Discipline and the Free Speech Rights of Retired Military Officers"},"content":{"rendered":"

Pavan S. Krishnamurthy & Javier Perez<\/strong><\/em>[*]<\/a><\/p>\n

[Full text of this Article in PDF is available at this link<\/a>]<\/p>\n

<\/a><\/a>I.\u00a0 \u00a0Introduction<\/h1>\n

<\/a><\/p>\n

On June 3, 2020, General (ret.) James Mattis addressed protesters who were physically dispersed from Lafayette Square to facilitate what he considered to be a photo opportunity by President Trump at St. John\u2019s Church in The Atlantic<\/em>:<\/p>\n

I have watched this week\u2019s unfolding events, angry and appalled . . . . The protests are defined by tens of thousands of people of conscience who are insisting that we live up to our values\u2014our values as people and our values as a nation. . . . When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens\u2014much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside. . . . Donald Trump is the first president in my lifetime who does not try to unite the American people\u2014does not even pretend to try. Instead he tries to divide us. We are witnessing the consequences of three years of this deliberate effort. We are witnessing the consequences of three years without mature leadership.[1]<\/sup><\/a><\/p><\/blockquote>\n

Gen. (ret.) Mattis was not alone in his condemnation. An unprecedented number of retired Generals, Admirals, and other high-ranking military leaders have recently spoken out in public criticism of President Trump.[2]<\/sup><\/a> Given their position as leaders both on and off the battlefield, one would be forgiven for assuming that a retired officer could make such statements with impunity. However, following the Supreme Court\u2019s denial of certiorari in Larrabee v. United States<\/em>,[3]<\/a> which allowed a circuit court decision finding that retired service members could still be court-martialed for crimes that they commit during their retirement to stand,[4]<\/sup><\/a> it is clear that Gen (ret.) Mattis is still potentially subject to criminal prosecution under the Uniform Code of Military Justice (UCMJ).[5]<\/a> Unclear, though, is whether Gen (ret.) Mattis\u2019s statement constitutes a crime under the UCMJ in the first place. Gen (ret.) Mattis made these statements against the backdrop of Article 88 of the UCMJ, which provides in relevant part that:<\/p>\n

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military <\/a>department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.[6]<\/a><\/p><\/blockquote>\n

The ambiguity behind what qualifies as \u201ccontemptuous speech\u201d under Article 88 raises constitutional questions regarding the free speech rights of both active and retired military officers during a time of heightened partisan discourse and uncertainty regarding the role of the U.S. military.[7]<\/a> This Article proceeds in four parts. Part II reviews speech theory generally and situates it in the context of service members. Part III interprets Article 88 of the UCMJ and reviews prohibited contemptuous speech jurisprudence in order to develop an understanding of the provision\u2019s scope under the current legal regime. Part IV reviews recent statements by retired Generals and Admirals and analyzes whether they should be considered contemptuous. Part V advocates for an exception to Article 88 of the UCMJ for retirees. The conclusion follows.<\/p>\n

\n

[*]<\/a> Captain, Assistant Staff Judge Advocate, 316th Wing, United States Air Force. B.A. 2012, Northwestern University; MSc 2014, London School of Economics; J.D. 2017, Georgetown University Law Center.<\/p>\n

Captain, Assistant Staff Judge Advocate, 316th Wing, United States Air Force. B.A. 2016, University of Texas \u2013 Austin; J.D. 2019, South Texas College of Law \u2013 Houston.<\/p>\n

[1]<\/a> Jeffrey Goldberg, James Mattis Denounces President Trump, Describes Him as a Threat to the Constitution<\/em>, The Atlantic (June 3, 2020), https:\/\/www.theatlantic.com\/politics\/archive\/2020\/06\/james-mattis-denounces-trump-protests-militarization\/612640\/ [https:\/\/perma.cc\/Z4ZB-KNHF<\/strong>].<\/p>\n

[2]<\/a> See<\/em> Veronica Stracqualursi, The Prominent Former Military Leaders Who Have Criticized Trump\u2019s Actions Over Protests<\/em>, CNN (June 5, 2020, 6:17 PM), https:\/\/www.cnn.com\/2020\/06\/05\/politics\/military-leaders-trump-floyd-protests\/index.html [https:\/\/perma.cc\/97VJ-SXPQ] (detailing public statements by former military leaders, including Marine Corps General (ret.) James Mattis and Air Force General (ret.) Richard Myers).<\/p>\n

[3]<\/a> 139 U.S. 1164 (2019).<\/p>\n

[4]<\/a> See id.<\/em>; Patricia Kime, Supreme Court: Retirees Can Be Court-Martialed for Crimes Committed After Service<\/em>, Military.com (Feb. 22, 2019), https:\/\/www.military.com\/daily-news\/2019\/02\/22\/supreme-court-retirees-can-be-court-martialed-crimes-committed-after-service.html [https:\/\/perma.cc\/CE46-SUGW] (arguing that, by the Supreme Court not accepting the case, \u201cthe court upheld the status quo: that military retirees are subject to the Uniform Code of Military Justice\u201d). While denial of certiorari means at least four Justices deemed review unwarranted, at least one commentator suggests that a denial is, in effect, a policy choice.\u00a0 Peter Linzer, The Meaning of Certiorari Denials<\/em>, 79 Colum. L. Rev. 1227, 1229 (1979) (arguing that in \u201csignificant number of cases\u201d the denial of certiorari indicates that most of the \u201cJustices were not strongly dissatisfied with the actions\u201d of the lower court\u2019s ruling).<\/p>\n

[5]<\/a> Uniform Code of Military Justice<\/em> (codified at 10 U.S.C. \u00a7\u00a7 801\u2013946(a)).<\/p>\n

[6]<\/a> UCMJ art. 88 (codified at 10 U.S.C. \u00a7 888 (2006)).<\/p>\n

[7]<\/a> See, e.g.<\/em>, Ronald O\u2019Rourke, Cong. Rsch. Serv., R43838, Renewed Great Power Competition: Implications for Defense\u2014Issues for Congress (2021).<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Pavan S. Krishnamurthy & Javier Perez[*] [Full text of this Article in PDF is available at this link] I.\u00a0 \u00a0Introduction On June 3, 2020, General (ret.) James Mattis addressed protesters who were physically dispersed from Lafayette Square to facilitate what he considered to be a photo opportunity by President Trump at St. John\u2019s Church in The Atlantic: I have watched this week\u2019s unfolding events, angry and appalled . . . . The protests are defined by tens of thousands of people of conscience who are insisting that we live up to our values\u2014our values as people and our values as […]<\/p>\n","protected":false},"author":13020,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[241,229],"tags":[],"class_list":["post-5445","post","type-post","status-publish","format-standard","hentry","category-main-articles","category-volume-12"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-1pP","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/5445","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/13020"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=5445"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/5445\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=5445"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=5445"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=5445"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}