U.S. v. Moore, 58 M.J. 466

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. a superior’s order is presumed to be lawful and is disobeyed at the subordinate’s peril; nevertheless, to sustain this presumption, the order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service; moreover, the order may not conflict with the statutory or constitutional rights of the person receiving the order and must be a specific mandate to do or not to do a specific act; in sum, an order is presumed lawful, provided it has a valid military purpose and is a clear, specific, narrowly drawn mandate
2. since United States v. Wysong, 9 C.M.A. 249, 26 C.M.R. 29 (1958), this Court has refined its approach to orders, focusing more directly on the specific conduct at issue in the context of the purposes and language of the order; for example, in United States v. Womack, 29 M.J. 88 (C.M.A. 1989), the Court held that a safe-sex order that arguably applied to civilians having no connection with the military was constitutional given appellant’s specific conduct, which did not violate the order in this way; given the Court’s new direction, in analyzing the no-contact order’s breadth in this case, we decline to follow Wysong and, instead, employ the contextual approach favored in Womack
3. the Supreme Court has long recognized the principle that the military is, by necessity, a specialized society; 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; given this distinction, the weighing of First Amendment considerations within the military is such that 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 our Country; thus, military authorities may curtail a servicemember’s communication and association with other individuals -- and thus burden the servicemember’s freedom of speech and association -- provided the authorities act with a valid military purpose and issue a clear, specific, narrowly drawn mandate
4. in this case where appellant was issued a no-contact order directing him not to converse in any way with any civilian employees of the galley, appellant’s contact with the civilian employee involved the type of unlawful, service-discrediting conduct that may be prohibited by military orders; given the specific context in which the no-contact order was issued and the manner in which it was violated, the Court finds that the order was not unconstitutionally overbroad in violation of the First Amendment
5. under the Due Process Clause of the Fifth Amendment, no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes; all are entitled to be informed as to what the State commands or forbids; here, the central question of this "void for vagueness" doctrine is whether appellant had actual knowledge of the order’s nature and terms, and whether he was on fair notice as to the particular conduct which was prohibited; void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his or her contemplated conduct is proscribed; in evaluating the sufficiency of notice, the Court examines the order in light of the conduct with which appellant was charged
6. in this case, the order directed appellant not to converse in any way with any civilian employees of the galley; the order was sufficiently clear and certain to have informed appellant that to speak with any civilian employee of the galley was to violate the order; because the order’s language was sufficiently clear, specific, and narrowly drawn under the circumstances of this case, the Court finds that the order was not unconstitutionally vague and indefinite in violation of the Fifth Amendment

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the legality of an order is a question of law that we review de novo