Parker v. Levy,
417 U.S. 733 (1974)

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U.S. Supreme Court

Parker v. Levy, 417 U.S. 733 (1974)

Parker v. Levy

No. 73-206

Argued February 20, 1974

Decided June 19, 1974

417 U.S. 733


Article 90(2) of the Uniform Code of Military Justice (Code) provides for punishment of any person subject to the Code who "willfully disobeys a lawful command of his superior commissioned officer"; Art. 133 punishes a commissioned officer for "conduct unbecoming an officer and a gentleman"; and Art. 134 (the general article) punishes any person subject to the Code for, inter alia, "all disorders and neglects to the prejudice of good order and discipline in the armed forces," though not specifically mentioned in the Code. Appellee, an Army physician assigned to a hospital, was convicted by a general court-martial of violating Art. 90(2) for disobeying the hospital commandant's order to establish a training program for Special Forces aide men, and of violating Arts. 133 and 134 for making public statements urging Negro enlisted men to refuse to obey orders to go to Vietnam and referring to Special Forces personnel as "liars and thieves," "killers of peasants," and "murderers of women and children." After his conviction was sustained within the military and he exhausted this avenue of relief, appellee sought habeas corpus relief in the District Court, challenging his conviction on the ground that both Art. 133 and Art. 134 are "void for vagueness" under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment. The District Court denied relief, but the Court of Appeals reversed, holding that Arts. 133 and 134 are void for vagueness, that, while appellee's conduct fell within an example of Art. 134 violations contained in the Manual for Courts-Martial, the possibility that the articles would be applied to others' future conduct as to which there was insufficient warning, or which was within the area of protected First Amendment expression, was enough to give appellee standing to challenge both articles on their face, and that the joint consideration of the Art. 90 charges gave rise to a "reasonable possibility" that appellee's right to a fair trial was prejudiced, so that a new trial was required.


1. Articles 133 and 134 are not unconstitutionally vague under the Due Process Clause of the Fifth Amendment. Pp. 417 U. S. 752-757.

Page 417 U. S. 734

(a) Each article has been construed by the United States Court of Military Appeals or by other military authorities, such as the Manual for Courts-Martial, so as to limit its scope, thus narrowing the very broad reach of the literal language of the articles, and at the same time supplying considerable specificity by way of examples of the conduct that they cover. Pp. 417 U. S. 752-755.

(b) The articles are not subject to being condemned for specifying no standard of conduct at all, but are of the type of statutes which, "by their terms or as authoritatively construed, apply without question to certain activities, but whose application to other behavior is uncertain," Smith v. Goguen, 415 U. S. 566, 415 U. S. 578. Pp. 417 U. S. 755-756.

(c) Because of the factors differentiating military from civilian society, Congress is permitted to legislate with greater breadth and flexibility when prescribing rules for the former than when prescribing rules for the latter, and the proper standard of review for a vagueness challenge to Code articles is the standard that applies to criminal statutes regulating economic affairs, and that standard was met here, since appellee could have had no reasonable doubt that his statements urging Negro enlisted men not to go to Vietnam if ordered to do so was both "unbecoming an officer and gentleman" and "to the prejudice of good order and discipline in the armed forces," in violation of Arts. 133 and 134, respectively. Pp. 417 U. S. 756-757.

2. Nor are Arts. 133 and 134 facially invalid because of overbreadth. Pp. 417 U. S. 757-761.

(a) Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of the principles that, while military personnel are not excluded from First Amendment protection, the fundamental necessity for obedience, and the consequent necessity for discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Pp. 417 U. S. 758-759.

(b) There is a wide range of conduct to which Arts. 133 and 134 may be applied without infringing the First Amendment, and while there may be marginal applications in which First Amendment values would be infringed, this is insufficient to invalidate either article at appellee's behest. His conduct in publicly urging enlisted personnel to refuse to obey orders which might send them into combat was unprotected under the most expansive notions of the First Amendment, and Arts. 133 and 134

Page 417 U. S. 735

may constitutionally prohibit that conduct, and a sufficiently large number of similar or related types of conduct so as to preclude their invalidation for overbreadth. Pp. 417 U. S. 760-761.

3. Appellee's contention that, even if Arts. 133 and 134 are constitutional, his conviction under Art. 90 should be invalidated because to carry out the hospital commandant's order would have constituted participation in a war crime and because the commandant gave the order, knowing it would be disobeyed, for the sole purpose of increasing appellee's punishment, is not of constitutional significance, and is beyond the scope of review, since such defenses were resolved against appellee on a factual basis by the court-martial that convicted him. P. 417 U. S. 761.

478 F.2d 772, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. BLACKMUN, J., filed a concurring statement, in which BURGER, C.J., joined, post, p. 417 U. S. 762. DOUGLAS, J., filed a dissenting opinion, post, p. 417 U. S. 766. STEWART, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 417 U. S. 773. MARSHALL, J., took no part in the consideration or decision of the case.

Primary Holding

The First Amendment can be applied differently in the military context because of its distinctive character and purpose.


Stationed at Fort Jackson in South Carolina, Howard Levy was an Army doctor and captain who discouraged service members from supporting the Vietnam War. He told them that African-Americans faced discrimination in combat situations as well as in the U.S. He was court-martialed and dismissed from the service, required to forfeit his pay and allowances, and sentenced to three years of hard labor. He argued that Articles 90, 133, and 134 of the Uniform Military Code of Justice, under which he was convicted, were unconstitutionally broad and violated the First Amendment.



  • William Hubbs Rehnquist (Author)
  • Warren Earl Burger
  • Byron Raymond White
  • Harry Andrew Blackmun
  • Lewis Franklin Powell, Jr.

The military is a distinctive environment that revolves around the importance of obedience and discipline. It is possible to apply these sections of the UCMJ in ways that do not violate the First Amendment. Even a generous interpretation of the First Amendment does not protect a commissioned officer who encourages soldiers to refuse to obey orders, especially in the context of combat.


  • William Orville Douglas (Author)

As long as the discussion does not interfere with the performance of military duties, service members should be allowed to discuss public affairs and meet in bars or groups at certain times and places for such discussions.


  • Potter Stewart (Author)
  • William Orville Douglas
  • William Joseph Brennan, Jr.

First Amendment jurisprudence traditionally has held that rules such as these are unconstitutionally vague. The military also is based on the importance of high morale and esprit de corps. Those interests are undermined by the enforcement of these rules in an arbitrary way.


  • Harry Andrew Blackmun (Author)
  • Warren Earl Burger


  • Thurgood Marshall (Author)

Case Commentary

Like prisons and schools, the armed forces are a special setting in which First Amendment rights may be somewhat restricted because of the significant interests at stake. Leadership figures in the military have an obligation to keep national security interests in mind and cannot undermine the morale of soldiers by making negative statements, since these could disrupt war efforts.

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