U.S. v. Wilcox, 66 M.J. 442

First Principles: Constitutional Matters: First Amendment

1. the First Amendment provides that Congress shall make no law abridging the freedom of speech; this protection permits the expression of ideas, even the expression of ideas the vast majority of society finds offensive or distasteful; the sweep of this protection is less comprehensive in the military context, given the different character of the military community and mission
2. 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
3. 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
4. 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
5. 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
6. 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
7. 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
8. 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

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. the Supreme Court has upheld Article 134, UCMJ, against constitutional attack for vagueness and overbreadth in light of the narrowing construction developed in military law through the precedents of the CAAF and limitations within the MCM; as such, a limited Article 134, UCMJ, does not make every irregular or improper act a court-martial offense and does not reach conduct that is only indirectly or remotely prejudicial to good order and discipline; if it were otherwise, the forces of narrowing interpretation that saved Article 134, UCMJ, from constitutional challenge would fail
2. 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
3. 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
4. appellant’s statements on the Internet that formed the basis for the charge of violating the general article by wrongfully advocating anti-government and disloyal sentiments, and advocating racial intolerance, while distasteful and repugnant, constituted protected speech under the First Amendment, absent evidence that they constituted dangerous speech that interfered with or prevented the orderly accomplishment of the mission or presented a clear danger to loyalty, discipline, mission, or morale of the troops
5. the evidence was legally insufficient to support appellant’s conviction for violating the general article by wrongfully advocating anti-government and disloyal sentiments, and advocating racial intolerance, based on his Internet online profiles, his communications with others on Internet message boards, and his statements made on the Internet to an undercover CID agent; the mere possibility that a servicemember or member of the public might stumble upon appellant’s expression of his beliefs, believe he was in the military, and attribute his views to the military, was so tenuous and speculative as to be legally insufficient to satisfy the element of either service discrediting behavior or conduct prejudicial to good order or discipline

Core Criminal Law Subjects: Crimes: Article 134 -- Disloyal Statements Pre-2019 offenses

1. the disloyal statements offense specifically requires the government to prove that the statement was made with the intent to promote disloyalty or disaffection toward the United States by any member of the armed forces or to interfere with or impair the loyalty to the United States or good order and discipline of any member of the armed forces

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. 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
2. 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
3. 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
4. appellant’s statements on the Internet that formed the basis for the charge of violating the general article by wrongfully advocating anti-government and disloyal sentiments, and advocating racial intolerance, while distasteful and repugnant, constituted protected speech under the First Amendment, absent evidence that they constituted dangerous speech that interfered with or prevented the orderly accomplishment of the mission or presented a clear danger to loyalty, discipline, mission, or morale of the troops
5. the evidence was legally insufficient to support appellant’s conviction for violating the general article by wrongfully advocating anti-government and disloyal sentiments, and advocating racial intolerance, based on his Internet online profiles, his communications with others on Internet message boards, and his statements made on the Internet to an undercover CID agent; the mere possibility that a servicemember or member of the public might stumble upon appellant’s expression of his beliefs, believe he was in the military, and attribute his views to the military, was so tenuous and speculative as to be legally insufficient to satisfy the element of either service discrediting behavior or conduct prejudicial to good order or discipline

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

1. an appellate court reviews questions of legal sufficiency de novo as a matter of law; the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt
2. 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
3. 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