U.S. v. Meakin, 78 M.J. 396

First Principles: Constitutional Matters: Due Process

1. the Fourteenth Amendment provides that no state may deprive any person of life, liberty, or property, without due process of law and has been interpreted by the Supreme Court to contain a substantive due process protection for a liberty interest to form intimate, meaningful, and personal bonds that manifest themselves through sexual conduct
2. it is the Due Process Clause of the Fifth Amendment rather than that of the Fourteenth Amendment that applies to the military justice system, an instrument of the federal government rather than the states; the Fifth Amendment also provides that no person shall be deprived of life, liberty, or property, without due process of law and there is no reason to expect that the general scope of the protections would be different in this context

First Principles: Constitutional Matters: First Amendment

1. the First Amendment provides that Congress shall make no law abridging the freedom of speech
2. 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
3. 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
4. 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
5. 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
6. 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

Core Criminal Law Subjects: Crimes: Article 133 - Conduct Unbecoming an Officer and Gentleman Pre-2019 offenses

1. when an alleged violation of the article prohibiting conduct unbecoming officer and gentleman is based on the 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
2. in order to convict appellant for conduct unbecoming an officer and a gentleman under Article 133, UCMJ, as charged in this case, the prosecution needed to prove beyond a reasonable doubt: (1) that the accused wrongfully and dishonorably communicated, in writing, certain indecent language; and (2) that, under the circumstances, these acts constituted conduct unbecoming an officer and a gentleman
3. in this case, the evidence was legally sufficient to support appellant’s conviction for conduct unbecoming an officer and a gentleman, based on his act of transmitting over the internet materials describing and encouraging the sexual exploitation and sexual abuse of children; such material constituted obscenity that was not entitled to First Amendment protection, and appellant’s conduct was disgraceful to appellant himself and the reputation of the military
4. 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
5. 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
6. an officer’s conduct need not violate other provisions of the UCMJ or even be otherwise criminal to violate Article 133, UCMJ; the gravamen of the offense is that the officer’s conduct disgraces him personally or brings dishonor to the military profession such as to affect his fitness to command the obedience of his subordinates so as to successfully complete the military mission
7. the conduct of an officer may be unbecoming even when it is private; conduct which is entirely unsuited to the status of an officer and a gentleman often occurs under circumstances where secrecy is intended; conduct that violates Article 133, UCMJ, may consist of an action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer
8. officers are held to a higher standard of behavior than their subordinates; there are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty; not everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer cannot fall without seriously compromising the person’s standing as an officer or the person’s character as a gentleman; this heightened standard for officers commands respect and obedience and preserves their ability to lead and command their subordinates
9. an officer is called upon to be a leader as well as a warrior, which necessitates that commissioned officers are subject to stricter accountability for their actions; the plain text of Article 133, UCMJ, contains no reference to the military service; rather, it is a personal offense committed by commissioned officers, cadets, or midshipmen that dishonors or disgraces them personally; thus, even conduct that has no bearing on military discipline might establish the basis for an Article 133, UCMJ, charge
10. transmitting speech that describes, encourages, and normalizes child sexual exploitation and molestation in graphic detail surpasses the limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer cannot fall without seriously compromising the person’s standing as an officer or the person’s character as a gentleman; furthermore, a connection to the military mission is not required to prosecute a violation of Article 133, UCMJ

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

1. an appellate court reviews questions of legal sufficiency de novo, and 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