UCMJ Article 88 & Social Media

[robav8r]

Was curious what the Old Guard and the next generation of Naval Aviation Warriors think about the issue of "free speech" on social networking sites versus the mandate of Article 88. I have noticed many folks that I either know or have served with that routinely violate Art. 88 and, to some extent, do not conduct themselves as professional Officers, Chief Petty Officers or Petty Officers when using social media. Some use an alias, some do not. Not sure if they feel the internet is a "safe zone" where the normal confines of professional decorum does not apply, or they simply feel that the virtual world makes them untouchable. I will deal with this issue in my next tour of duty and wanted to get a good cross section of opinion on the issue. Thanks !!!

http://camppendleton.patch.com/articles/officers-recommend-discharge-for-tea-party-marine

 

[Brett327]

IRT the current case in the media, it seems pretty clear cut, IMO. When it comes to POTUS, if you don't have something nice to say, don't say it at all. I had to counsel an old shipmate (via FB PM, mind you) that I hadn't seen in >15 years about an anti-Obama post he put on FB. Legalities aside (and I don't think there's any real legal wiggle room on this), is posting a silly FU to the CinC on FB really that important so as to warrant possible ethical or legal problems? People who have trouble answering that question need to be shown the door.

 

[Tomodachi]

I personally feel that we need to use restraint when it comes to our opinions of public officials in office. Facebook is not a safe zone by any means to freely express our opinions without reprecussions. Law Enforcement uses social media every day when building cases and prosecuting suspects. To give an example: after the recent shooting rampage police scoured the facebook pages of the accused and found racially motivated posts which will be used against them in court to establish a motive. http://abcnews.go.com/US/tulsa-oklahoma-men-arrested-shooting-spree/story?id=16096391 .

My point being is that anything posted on the internet can and will be shared with others in a public forum, regardless of your privacy settings. At my current command, Facebook has been used to identify individuals that have suicidal ideations, alcohol related incidents, and to prosecute juveniles that brag about vandalism and other illegal activities to their friends. Facebook has been admissible in conducting LE functions so why can it not be used against Navy officers who violate Article 88?

We should be expecting a new MCM (Manual for Courts-Martial) to come out this year so we should wait and see if there are any tweaks to Article 88 with regards to social media. However for now we need to follow the current version.

a. Text of statute.
Any 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 any State, Territory, Commonwealth, or
possession in which he is on duty or present shall
be punished as a court-martial may direct.

Elements of the crime:

(1) That the accused was a commissioned officer
of the United States armed forces;

(2) That the accused used certain words against
an official or legislature named in the article;

(3) That by an act of the accused these words
came to the knowledge of a person other than the
accused; and

(4) That the words used were contemptuous, either
in themselves or by virtue of the circumstances
under which they were used.
[Note: If the words were against a Governor or legislature,
add the following element]

( 5 ) That the accused was then present in the State,
Territory, Commonwealth, or possession of
the Governor or legislature concerned.

 

[bert]

For the case in the article, he was told to stop (so essentially given a warning) and didn't. He needs to be tossed.

Your bigger-picture question is interesting, because for the most part people are only anonymous if nobody cares enough to figure out who they are. For instance, I've never put my name in the public forum here, but I bet you could get my real name in less than an hour of phone calls from info I've put out here. The reason you haven't is because you have no reason to care why my real name is. People can stay anonymous only until they become obnoxious enough that the relevant powers that be decide they want to find them.

We had some of the same issues of disrespect to the CinC when Clinton was President (probably even from some of the same people), and there have always been sailors ready to bitch about their CoC. The difference now is that it is a lot easier for anybody to get broader exposure for whatever it is they believe.

One thing I would remind the people working for me about is that the old days of "what goes on det stays det" are dead like fried chicken. The new hotness is "what goes on det goes on the Internet". I brought it up in another thread I think, but a great example is the mishap I was in a while back. Video of our crash was posted on YouTube before I was even taken off the backboard at the hospital, which ought to give people an idea of how fast things can get around in the modern age.

 

[BusyBee604]

Was curious what the Old Guard and the next generation of Naval Aviation Warriors think about the issue of "free speech" on social networking sites versus the mandate of Article 88.

My personal opinion only: "Free speech" should be expressed with a modicum of common sense.

My personal credo: Never post anything on the internet that you would be uncomfortable being seen/read by family, employer, CO (or anyone else for that matter). Always ponder for a moment before you push SEND, in most cases, you can't "put the toothpaste back into the tube"!
BzB, (aged guardian)

 

[NavAir42]

Judging where an Article 88 violation has occurred is a lot like how the Supreme Court defined pornography: you'll know it when you see it. There's a lot of gray area. In general, if it's not a widespread, public comment, I would think an Article 88 charge would probably be a little (or a lot) overboard. Start a facebook group and say, "screw the president" and that he's a "domestic enemy" and you're well over the foul line and into the stands. Say it after a few drinks to a couple buddies, you'll probably get told to shut-up, and that's it. It's tricky because the UCMJ and the First Ammendment have a nice little balancing act on that one. I tend to think drawing up charges should probably be a leadership tool of last resort.

 

[djguernsey]

What is the line, or is there a line, between expressing a political opinion and the "contemptuous" language mentioned by mightymouse?

 

[gparks1989]

We've been discussing this issue in our weekly NROTC labs. An interesting point to note is that, since the Tea Party Patriot Marine is enlisted, Article 88 doesn't apply to him. As mightmouse3 showed, art 88 only applies to commissioned officers. The catchall "conduct unbecoming," however, applies to everyone in any situation.

In the civilian world, if you insult your boss, you undermine good order and discipline, and make it difficult for the organization to function....the military isn't any different? The Marine in this case wouldn't insult his CO, why does he think that insulting the big CO is any different?

As an aside, the first amendment doesn't protect free speech without consequence. It merely prevents Congress from passing laws that impinge on one's right to free speech.

 

[wlawr005]

I was once told to never miss a good opportunity to shut the fuck up. I like to think I keep to that form whenever possible. I don't believe that any of us in uniform are entitled to have any public opinions about anything, especially when you are prominantly advertising that you are a member of the US Armed Forces. This guy wasn't in uniform, but there was no doubt that he was attempting to speak with credentials as a military member. Basically, if the Joint Chiefs and combatant commanders can sit at the State of the Union quietly and keep theirs opinions to themselves, then I assume that I should also follow suit. I think that if there was something to be said, they would warrant the power and authority to say it.

I may or may not agree with the President, but I for one do not qualify myself smart enough to claim expertise on the details of foreign or domestic policy. My oath is to the Constitution, and that I will defend, no matter who sits in the Oval Office.

 

[C420sailor]

I think it's all about using common sense. There's a difference between posting an article or participating in some political banter, and straight up disrespecting elected government officials.

 

[Jim123]

Good points- all of them.


Our government in this country transfers power via peaceful elections rather than armed coups. In the context of the history of the human race, civilization, and the balance between good and evil in the world... this is a huge deal.

With that in mind, the rationale behind Article 88--that us "federales" with the guns need to uphold a certain standard of behavior--makes a lot of sense.

 

[scoober78]

I think it's all about using common sense. There's a difference between posting an article or participating in some political banter, and straight up disrespecting elected government officials.

I think this is the Bingo.

The bottom line is that I am free to express my political opinions via whatever form I choose. What I am not free to do is clearly defined in the article..."contemptuous words against the President, the Vice President and so on..."

I can honestly say that there are many policy issues that I vehemently disagree with President Obama on and would be happy to engage in a dialogue with him on. I can also honestly say that I respect his authority as Commander in Chief and when the debate ended, would salute and say "Yes sir, yes sir...three bags full." To me, if a service member posts something that calls into question the last part, it's an Article 88 violation. The good SGT f'ed it away. Clear violation.

Disagree with the policies all you want. If it goes deeper than that, bite your fu%#ing tongue.

 

[707guy]

My personal opinion only: "Free speech" should be expressed with a modicum of common sense.

My personal credo: Never post anything on the internet that you would be uncomfortable being seen/read by family, employer, CO (or anyone else for that matter). Always ponder for a moment before you push SEND, in most cases, you can't "put the toothpaste back into the tube"!
BzB, (aged guardian)

Have to agree - nothing you post online is private - good thought to keep in mind.

As Ron White said - "I had the right to remain silent but not the ability" Just because you have the right to do something doesn't mean you should - common sense must be used.

 

[squorch2]

There's also Article 134, DODINST 1344.10, etc. etc. Lots of restrictions on what you can and can't do as an active duty service member.

 

[helolumpy]

Anyone else check out the facebook apge in question? I don't see any photos of individuals in uniform making political statements. The page is very anti-administration, but compared to some sites on line, it's pretty tame.

The issue I have is how social media is being adressed by UCMJ (or lack of addressing it at all) Preciously you could say what you wanted as long as you were not in uniform and did not identify yourself as an active duty service member.

When you create an online profile, you may identify yourself as an acitve duty service member. So, is everything you do online then tied to that profile? So everything you post can be held against you WRT the UCMJ? That's my concern, the ability to attribute anything you say to one or more on-line profiles and you can e held accountble. Even if you posted everything from your home computer, the military could go after you.

Prior to social media, if you weren't in uniform and didn't state you were in the military, you could do what you wanted and it was permissable.

I know the Marine Corps has asked OSD for more guidance on social media and the 1st Amendment and the UCMJ. I am very curious how this new form of communication will be addressed by the UCMJ.