2023 (October Term)
United States v. Hasan, 84 M.J. 181 (the First Amendment gives the public the right of access to criminal trials; the press enjoys the same right and has standing to complain if access is denied).
2022 (October Term)
United States v. Kim, 83 M.J. 235 (the First Amendment to the United States Constitution states that Congress shall make no law abridging the freedom of speech; although servicemembers are not excluded from First Amendment protection, it is important to remember that the different character of the military community and of the military mission requires a different application of those protections; the fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it).
(if the First Amendment means anything, it means that the government has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch; the heritage of the Constitution of the United States rebels at the thought of giving government the power to control men’s minds).
(in this case, where appellant was charged with indecent conduct by searching the internet for pornographic videos using the search terms “rape sleep” and “drugged sleep,” such a charge implicated the First Amendment right to be free from unwanted government intrusion into one’s privacy).
2018 (October Term)
United States v. Meakin, 78 M.J. 396 (the First Amendment provides that Congress shall make no law abridging the freedom of speech).
(when an alleged violation of the article prohibiting conduct unbecoming officer and gentleman is based on an officer’s private speech, the test for whether such speech is protected by the First Amendment is whether it poses a clear and present danger that the speech will, in dishonoring or disgracing the officer personally, seriously compromise his or her standing as an officer; however, the test only applies when the officer’s private speech is entitled to First Amendment protection).
(it is well-settled law that obscenity is not speech protected by the First Amendment, regardless of the military or civilian status of the speaker).
(obscenity can consist of visual images or language; there is no distinction as to the medium of the expression when dealing with obscene material; obscenity can manifest itself in conduct or in the written and oral description of conduct).
(the speech in this case conveyed patently offensive, repugnant sexual fantasies involving children that appealed, and was intended to appeal, to the prurient interest; such speech is not protected by the First Amendment).
(the zone of privacy that Stanley v. Georgia, 394 US 557 (1969) protects does not extend beyond the confines of the home; the Supreme Court has consistently rejected the idea that the right to possess obscene material in the privacy of the home creates a correlative right to receive it, transport it, or distribute it; moreover, the use of the internet to transport and distribute such obscene material constitutes travel in interstate commerce; neither the transmission nor distribution of obscenity in interstate commerce bears any resemblance to Stanley’s protection of the mere private possession of obscene material within the confines of one’s home).
2015 (September Term)
United States v. Caldwell, 75 M.J. 276 (in the context of freedom of speech in the military, servicemembers do not possess the same broad rights of expression that civilians enjoy; this principle holds true even in regard to interactions between superiors and subordinates).
(with respect to the offense of maltreatment of a subordinate, the armed forces have the authority to ensure that servicemembers conduct themselves with the level of respect, obedience, and decorum that is required in furtherance of the effective execution of the military mission; thus, a superior who voluntarily engages in objectively abusive conduct towards a subordinate cannot be heard to complain that his actions were protected by his freedom of speech, or that his actions were lawful in any other sense).
United States v. Rapert, 75 M.J. 164 (traditionally, threats of violence are outside the First Amendment).
(because the military is, by necessity, a specialized society separate from civilian society, the right of free speech in the armed services is not unlimited and must be brought into balance with the paramount consideration of providing an effective fighting force for the defense of the country; to achieve this balance, a court must first weigh the gravity of the evil posed by the speech at issue against the probability of this evil’s manifestation; if the resulting danger justifies the invasion of free speech necessary to avoid it, the rights of individual servicemembers must yield to the needs of the nation, and this is a question of law that an appellate court reviews de novo).
(there is a fundamental difference between suggesting that the constitutionally protected status of speech may affect legal sufficiency and suggesting that legal sufficiency review can be used to determine whether an appellant’s speech is constitutionally protected; only the former assertion is correct; the constitutionally protected status of conduct may affect legal sufficiency, but not vice versa).
(the fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it; in this case, where appellant threatened to kill the President of the United States, the balance of interests clearly weighed in favor of proscribing appellant’s speech).
2011 (September Term)
United States v. Barberi, 71 M.J. 127 (the First Amendment bars the government from dictating what we see or read or speak or hear, but the freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children; thus, speech that falls outside of these categories retains First Amendment protection).
(four electronic images depicting appellant’s stepdaughter that were not child pornography within meaning of the Child Pornography Prevention Act constituted constitutionally protected speech, and the government may not suppress lawful speech as the means to suppress unlawful speech).
(under appropriate circumstances, conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces).
2008 (September Term)
United States v. Forney, 67 M.J. 271
(that the possession of virtual child pornography may be
constitutionally protected
speech in civilian society does not mean it is protected under military
law).
(while
the members of the military are not excluded from the protection
granted by the
First Amendment, the different character of the military community and
of the
military mission requires a different application of those protections;
speech
that is protected in the civil population may nonetheless undermine the
effectiveness of response to command; if it does, it is
constitutionally
unprotected; in this case, appellant’s receipt and possession of
virtual child
pornography disgraced him personally and compromised his fitness to
command the
obedience of his subordinates).
(the CAAF’s jurisprudence on
charged
violations of Article 134, UCMJ, involving speech recognizes the
importance of
the context of that speech; consistent with the focus on context
necessary to
establish a violation of Article 134, UCMJ, while speech that would be
impervious to criminal sanction in the civilian world may be proscribed
in the
military, the CAAF has long recognized that when assessing a criminal
violation
implicating the First Amendment, the proper balance must be struck
between the
essential needs of the armed services and the right to speak out as a
free
American; necessarily, the CAAF must be sensitive to protection of the
principle of free thought; prior to applying this balancing test to a
charged
violation of Article 134, UCMJ, involving speech, two threshold
determinations
must be made: first, the speech involved
must be examined to determine whether it is otherwise protected under
the First
Amendment, and second, the government must have proved the elements of
an
Article 134, UCMJ, offense).
(no one disputes that
servicemembers enjoy
some measure of the right to free speech granted by the First
Amendment; however,
the right to free speech is not absolute, and some speech –- e.g.,
dangerous
speech, obscenity, or fighting words -- is not protected by the First
Amendment, regardless of the military or civilian status of the
speaker).
(the test for dangerous speech
unprotected by
the First Amendment in the civilian community is whether the words are
used in
such circumstances and are of such a nature as to create a clear and
present
danger that they will bring about the substantive evils that Congress
has a
right to prevent; it is a question of proximity and degree; under the
standard
applicable to the civilian world, clear and present danger extends to
speech
directed to inciting or producing imminent lawless action likely to
incite or
produce such action).
(a lower standard for
dangerous speech unprotected
by the First Amendment pertains in the military context, where
dangerous speech
is that speech that interferes with or prevents the orderly
accomplishment of
the mission or presents a clear danger to loyalty, discipline, mission,
or
morale of the troops).
(it is clear that additional
burdens may be
placed on First Amendment rights in the context of the military, given
the
different character of the military community and mission; thus, no one
questions that deference must be given to military authorities’
determination
that military needs justify particular restrictions on the First
Amendment, and
that military commanders may enact regulations and take administrative
actions
that place burdens on, or exact administrative consequences for,
speech,
expression, and the exercise of religion that would not pass
constitutional
muster in the civilian context).
(for any offense charged under
Article 134,
UCMJ, clauses 1 or 2, the government must prove: (1)
that the accused did a certain act, and
(2) that the act was, under the circumstances, to the prejudice of good
order
and discipline or was of a nature to bring discredit upon the armed
forces; in
the context of the First Amendment, in order to meet the second element
for
conduct charged under a prejudice of good order and discipline theory,
the
prosecution must show a reasonably direct and palpable connection
between an
appellant’s statements and the military mission; a direct and palpable
connection between speech and the military mission or military
environment is
also required for an Article 134, UCMJ, offense charged under a service
discrediting theory).
(if an accused’s speech is
otherwise protected
by the First Amendment, and if a reasonably direct and palpable
connection
between the speech and the military mission or military environment is
established, only then need an appellate court determine whether
criminalization of that speech is justified despite First Amendment
concerns; ultimately,
an appellate court must weigh the gravity of the effect of the speech,
discounted by the improbability of its effectiveness on the audience
the
speaker sought to reach, to determine whether the conviction is
warranted; where
the record does not establish a reasonably direct and palpable
connection
between the speech and the military at all, let alone the military
mission or
military environment, the balancing test is mooted by the legal
insufficiency
of the charged offense).
2006
United
States v. Pope,
63 M.J. 68 (an Air Force recruiting regulation prohibiting
sexual harassment of recruits did not impermissibly curtail a
recruiter’s First
Amendment rights to expression; while intimidating, hostile, or
offensive
speech may be tolerated in civilian society, in the armed forces, other
considerations also come to bear; restrictions on speech may exist that
have no
counterpart in civilian society; the right of free speech in the armed
services
is not unlimited and must be brought into balance with the paramount
consideration of providing an effective fighting force for the
Country’s defense;
proper relations between recruiters and applicants in the armed forces
are
indispensable in attracting young people to serve their country and in
maintaining military discipline; intimidating, hostile, or offensive
conduct of
a sexual nature by recruiters drives potential applicants away from
military
service and undermines the effectiveness of the armed forces).
2003