U.S. v. Bowersox, 72 M.J. 71

First Principles: Constitutional Matters: Generally

1. obscene material is unprotected by the First Amendment
2. the States retain broad power to regulate obscenity; however, that power simply does not extend to mere possession by the individual in the privacy of his own home

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

1. the statute, 18 USC § 1466A(b)(1), which prohibits the possession of obscene visual depictions of a minor engaging in sexually explicit conduct, does not require proof that the depictions represent “real” minors; the statute expressly provides that the minors depicted need not actually exist; as such, the statute applied to appellant’s conduct, who possessed 198 of such images on his computers in his shared US barracks room, even though none of images depicted real children; furthermore, the statute is constitutional as applied to appellant because the statute requires that the proscribed visual depiction be obscene, and the limited holding of Stanley v. Georgia, 394 US 557 (1969), which recognized an individual’s right to possess obscene materials “in the privacy of his own home,” did not extend to appellant’s possession of obscene materials in his shared barracks room

Core Criminal Law Subjects: Evidence: Search and Seizure › Expectations of privacy

1. the States retain broad power to regulate obscenity; however, that power simply does not extend to mere possession by the individual in the privacy of his own home
2. while servicemembers have a reasonable expectation of privacy in a shared barracks room that protects them from unreasonable government intrusions, one’s privacy interest in a shared barracks room is not coextensive with one’s privacy interest in their home
3. while a servicemember has a reasonable expectation of privacy in the files kept on a personal, password-protected computer for purposes of the Fourth Amendment, that privacy interest is not congruent with the discrete and special privacy interest in one’s home permitting the possession of obscene material in one’s home that was recognized by Stanley v. Georgia, 394 US 557 (1969), and was, in this case, overcome by a lawful warrant authorizing a search for contraband based on probable cause
4. a shared barracks room is not a “home,” for the limited holding of Stanley v. Georgia, 394 US 557 (1969), which recognized an individual’s right to possess obscene materials “in the privacy of his own home”; Stanley has been limited to its facts, and its holding does not extend to a shared barracks room

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. the statute, 18 USC § 1466A(b)(1), which prohibits the possession of obscene visual depictions of a minor engaging in sexually explicit conduct, does not require proof that the depictions represent “real” minors; the statute expressly provides that the minors depicted need not actually exist; as such, the statute applied to appellant’s conduct, who possessed 198 of such images on his computers in his shared US barracks room, even though none of images depicted real children; furthermore, the statute is constitutional as applied to appellant because the statute requires that the proscribed visual depiction be obscene, and the limited holding of Stanley v. Georgia, 394 US 557 (1969), which recognized an individual’s right to possess obscene materials “in the privacy of his own home,” did not extend to appellant’s possession of obscene materials in his shared barracks room