Kim is a guilty plea case with an issue as to the providence of one specification. The CAAF affirms the findings of three specifications of sexual abuse of a child and one assault and battery.
The military judge had sentenced the Appellant to a dishonorable discharge, 130 months of confinement, and reduction to grade E-1. The CA abided by the PTA to reduce the confinement to six years.
The CAAF sets aside an Article 134(2) specification that alleged:
that Appellant “did . . . commit indecent conduct, to wit: conducting an internet search for ‘rape sleep’ and ‘drugged sleep,’ and that said conduct was of a nature to bring discredit upon the armed forces.”
CAAF tells us that:
During the plea colloquy, Appellant told the military judge that he sought out videos “depicting simulated vulgar sex scenes involving sleep or sex with an individual that was pretending to be asleep” and that watching the videos reminded him of sexually abusing AK. The colloquy of the military judge on this offense is at issue.
An issue because there were First Amendment implications in the specification not properly addressed in the plea colloquy. Adverting to Parker v. Levy, the CAAF reminds us that while there can be significant limits on a servicemember’s First Amendment right, the limits are not absolute. Parker challenged Articles 133 and 134 as “"void for vagueness" under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment.” The Supreme Court was unwilling to find the Articles unconstitutional.
There is a wide range of the conduct of military personnel to which Arts. 133 and 134 may be applied without infringement of the First Amendment. While there may lurk at the fringes of the articles, even in the light of their narrowing construction by the United States Court of Military Appeals, some possibility that conduct which would be ultimately held to be protected by the First Amendment could be included within their prohibition, we deem this insufficient to invalidate either of them at the behest of appellee. His conduct, that of a commissioned officer publicly urging enlisted personnel to refuse to obey orders which might send them into combat, was unprotected under the most expansive notions of the First Amendment. Articles 133 and 134 may constitutionally prohibit that conduct, and a sufficiently large number of similar or related types of conduct so as to preclude their invalidation for overbreadth.
For CAAF the Appellant’s issue was one on the fringes and the military judge’s failure was in not conducting a sufficient Hartman inquiry. United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011) (When a charge against a servicemember may implicate both criminal and constitutionally protected conduct, the distinction between what is permitted and what is prohibited constitutes a matter of “critical significance.”).
The CAAF is not saying the Appellant’s conduct was protected conduct—but that it might be.
[Like i]n Hartman, this Court [is] troubled by the fact that the military judge failed to ask the appellant whether he understood the relationship between certain sections of the colloquy and the distinction between constitutionally protected behavior and criminal conduct. Id. We determined that “[i]n the absence of a dialogue employing lay terminology to establish an understanding by the accused as to the relationship between the supplemental questions and the issue of criminality, we cannot view [an appellant’s] plea as provident.”
Why might the conduct be protected?
The First Amendment right implicated in the present case was established by the Supreme Court in Stanley v. Georgia, 394 U.S. 557 (1969). In that case, investigators acting upon a search warrant for evidence of illegal bookkeeping seized three reels of eightmillimeter film they deemed obscene. Id. at 558. The appellant challenged his conviction for possession of obscene matter, asserting his First Amendment rights had been violated. Id. at 559. The Supreme Court agreed, stating that “the mere private possession of obscene matter cannot constitutionally be made a crime.” Id. The Court upheld a constitutional right “to be free, except in very limited circumstances, from unwanted governmental intrusion into one’s privacy.” Id. at 564. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds. Id. at 565. This constitutional right protected in Stanley does not automatically apply to servicemembers. Conduct that is constitutionally protected for civilians could still qualify as prejudicing good order and discipline or bringing discredit upon the military. United States v. Moon, 73 M.J. 382, 388 (C.A.A.F. 2014) (quoting United States v. Barberi, 71 M.J. 127, 131 (C.A.A.F. 2012)). However, images viewed for sexual gratification do not necessarily lose their First Amendment protection. Id. at 389. Appellant’s behavior here occupies a constitutional gray area similar to that at issue in Hartman. As a result, the plea colloquy should have established why possibly constitutionally protected material could still be service discrediting in the military context. See id. (stating that “[w]ithout a proper explanation and understanding of the constitutional implications of the charge, [a]ppellant’s admissions in his stipulation and during the colloquy regarding why he personally believed his conduct was service discrediting and prejudicial to good order and discipline do not satisfy Hartman.”).
Hartman has implications beyond sex related cases, extremism cases for example.
This Court again confronts the issue of what constitutes a reasonable search of a servicemember’s phone. And as always, the resolution of this issue depends on the specific facts of the case.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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