CAAF decided United States v. Bowersox, No. 12-0398/AR, 72 M.J. 71 (CAAFlog case page) (link to slip op.), on April 2, 2013, affirming the ACCA and the Appellant’s conviction of violating 18 U.S.C. 1466A(b) (1), which criminalizes obscene visual representations of the sexual abuse of children, as imported through clause 3 of Article 134, UCMJ.

The granted issue was:

Whether Appellant’s conviction of violating 18 U.S.C. 1466A(b) (1), as imported through clause 3 of Article 134, UCMJ, is unconstitutional as applied to him because the minors depicted in the material at issue were not actual minors. See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); United States v. Whorley, 550 F.3d 326 (4th Cir. 2008).

Judge Ryan writes for the court, with only Judge Stucky dissenting. She makes two key holdings. First, she finds that the express language of the statute provides that the minors depicted need not actually exist. Second, she finds that the individual right to possess obscene materials in the home, recognized in Stanley v. Georgia, 394 U.S. 557, 568 (1969), does not extend to Appellant’s possession of obscene materials in his shared barracks room.

The Appellant was convicted, contrary to his pleas, by a general court-martial composed of a military judge alone, of two specifications of possessing obscene visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 1466A(b)(1) (2006) and which conduct was of a nature to bring discredit upon the armed forces, in violation of Article 134, UCMJ. In accordance with his pleas, he was acquitted of one specification of possession of child pornography. He was sentenced to a bad-conduct discharge, confinement for four months, forfeiture of all pay and allowances, and reduction to the grade of E-1.

The visual depictions at issue were computer generated images of children engaged in sexually explicit acts. The CCA affirmed the Appellant’s convictions in a published opinion, noting that: “There is no constitutionally recognized right to possess such material, under these circumstances, on property within the special maritime and territorial jurisdiction of the United States and no authority to extend Stanley into this province. The threshold of a barracks/dormitory room does not provide the same sanctuary as the threshold of a private home.” United States v. Bowersox, 71 M.J. 561, 564 (A.Ct.Crim.App. 2012). I discussed that opinion last March in this post.

Writing for the court, Judge Ryan begins with some significant additional facts:

One day in early February 2009, after entering the shared barracks room, SPC Bryant observed Appellant abruptly stand up, and step in front of his computer, obscuring SPC Bryant’s view of the computer screen. SPC Bryant testified that he found Appellant’s behavior “odd.”

Shortly thereafter, Appellant asked SPC Bryant for the phone number of their superior, Sergeant (Sgt) Clark. When SPC Bryant asked Appellant why he wanted the phone number, Appellant said that he wanted to report a web site and asked SPC Bryant to come over and see the web site for himself. Appellant then showed SPC Bryant his computer screen, on which there were images of minors engaged in sexual activities. Appellant asked SPC Bryant if he should report the web site. SPC Bryant told Appellant to report the web site and left the room.

Approximately one week later, SPC Bryant asked Sgt Clark if Appellant had reported the web site; Appellant had not. After confronting Appellant, who feigned ignorance of the web site, SPC Bryant reported the incident to his first sergeant, who immediately sent him to Criminal Investigation Command (CID) to make an official report.

Slip op. at 3-4. The Appellent’s computer was subsequently seized pursuant to a search authorization, and the images leading to the convictions were discovered.

18 U.S.C. § 1466A(b)(1) prohibits, within the special maritime and territorial jurisdiction of the United States, the knowing possession of “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that (A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene.” An additional subsection of the statute provides that “[i]t is not a required element of any offense under this section that the minor depicted actually exist.” 18 U.S.C. § 1466A(c). Judge Ryan begins by rejecting the Appellant’s argument that this language “does not mean what it says, but rather means that Congress intended subsection (c) to ‘reliev[e] the Government from the burden of exhaustively searching the country to identify conclusively the children involved in the production of the child pornography.'” Slip op. at 8 (quoting App. Br. at 9). She does this for two reasons.

First, she distinguishes this statutory language from other language used by Congress in a similar statute (18 U.S.C. § 2256(9)(B)). The other language eliminates any burden to prove the actual identity of an “identifiable minor.” Because it is presumed that Congress chooses statutory language deliberately, Judge Ryan finds that the difference between the language at issue in this case (need not prove “that the minor depicted actually exist”) and the language used in a similar statute (need not prove the “identity of the identifiable minor”), is dispositive.

Second, 18 U.S.C. § 1466A provides a definition of “visual depiction” that includes drawings, cartoons, computer image or picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means. Judge Ryan notes that, “[n]either drawings nor cartoons nor computer-generated images necessarily or logically require a real minor. In our view, the express reference to ‘computer image or picture, or computer generated image or picture,’ and to drawings and cartoons, makes clear that the statute envisioned and made criminal the possession of precisely the type of depictions on which Appellant’s conviction was based — obscene, computer-generated images of minors engaged in sexually explicit conduct.” Slip op. at 10. So, either way, the images at issue in this case are contraband under § 1466A.

Judge Ryan then turns the claims that § 1466A(b)(1) is unconstitutional as applied to Appellant because he has the right to possess obscenity in the privacy of his shared barracks room. She notes that “obscene material is unprotected by the First Amendment.” Slip op. at 11 (quoting Miller v. California, 413 U.S. at 15, 23 (1973)). But the Supreme Court has also held that the government cannot constitutionally prohibit the possession of obscene material within the home, because “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.” Slip op. at 11 (quoting Stanley v. Georgia, 394 U.S. 557, 568 (1969)). Considering this apparent conflict, she finds that “[t]he constitutional principle underlying the holding in Stanley is less than clear.” Slip op. at 11. Moreover, she identifies three limitations to the application of Stanley in this case:

(1) obscenity itself is not protected speech under the First Amendment, (2) Stanley’s protection was grounded in the paramount importance accorded in our society to the “privacy of a person’s own home,” and (3) Stanley has been strictly limited to its facts.

Slip op. at 12 (citations and parentheticals omitted). “Because the zone of privacy that Stanley protected does not extend beyond the home the issue is whether a shared barracks room is a home.” Slip op. at 12-13 (citation and marks omitted). I think this is the central question in this case, as noted by my post on the ACCA’s opinion (entitled: Reminder from the ACCA: You’re special to highlight the nature of a barracks), and it was a significant point of emphasis in my argument preview. Judge Ryan quickly concludes that a shared barracks room is not a “home” as defined by Stanley. A footnote explains that she makes this conclusion by employing a Fourth Amendment analysis, because “the First Amendment’s protections do not otherwise depend on whether one’s conduct occurred within the privacy of one’s home.” Slip op. at 13 N.7. Her majority opinion continues:

While we agree with Judge Stucky that servicemembers have a reasonable expectation of privacy in a shared barracks room that protects them from unreasonable government intrusions, we do not agree that one’s privacy interest in a shared barracks room is coextensive with one’s privacy interest in their home. . . . a soldier has less of an expectation of privacy in his shared barracks room than a civilian does in his home.

Here, the fact that Appellant purposefully exposed SPC Bryant to the obscene computer depictions in their shared barracks room highlights the divergent natures of a shared barracks room and a private home. The very nature of a shared barracks room increases the risk that obscene materials will be viewed by those who do not wish to view them. The natural tendency of material in the home being kept private, is substantially diminished in a shared barracks room.

Slip op. at 14-15 (citations and marks omitted). But using a Fourth Amendment analysis to determine the reach of a limitation on the government’s ability to “tell[] a man, sitting alone in his own house, what books he may read or what films he may watch” (slip op. at 11 (quoting Stanley, 394 U.S. at 568)), is only possible after first doubting the clarity of “the constitutional principle underlying the holding in Stanley” (slip op. at 11). Judge Ryan, joined by all but Judge Stucky, casts this doubt easily, but the specific language of Stanley appears far more definite than the majority admits:

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.

Stanley, 394 U.S. at 565 (emphasis added). It is well-settled that Fourth Amendment protections are different in the context of a barracks room, and unsurprising that a Fourth Amendment analysis limits the reach of Stanley in the military context. But despite a four-judge majority adopting this analysis, it doesn’t seem right, and I’ll be surprised if the Appellant does not petition the Supreme Court for certiorari on this specific point.

Finally, Judge Ryan addresses the fact that the files were on a password-protected computer with a Fourth Amendment analysis, because the privacy interest in the computer “was, in this case, overcome by a lawful warrant authorizing a search for contraband based on probable cause.” Slip op. at 15. I believe that this too only works in a strictly-Fourth Amendment context where the search and seizure is viewed in a vacuum without consideration of the government’s right to criminalize the specific possession of the items.

Seizing this point, Judge Stucky dissents. His separate opinion focuses on the majority’s use of a Fourth Amendment analysis to resolve the reach of the apparent First Amendment protections identified in Stanley.

The majority bases its holding that Stanley does not apply in the barracks on Fourth Amendment grounds: a servicemember does not have the same expectation of privacy in a barracks room as he would in a civilian home. While I agree as a general matter that the barracks does not provide the same expectation of privacy as a civilian home, I do not agree that a servicemember’s privacy interest in a shared barracks room must be coextensive with the privacy interest in a home to trigger the protections of Stanley, and I cannot reconcile the majority’s holding with this Court’s Fourth and First Amendment jurisprudence.

Diss. op. at 2-3. A long footnote notes an important point:

I agree with the majority that the Supreme Court has wavered regarding the import of the constitutional principles underlying Stanley. While the Supreme Court has gone back and forth about the main constitutional support for Stanley, looking at the plain language of the opinion and decades of application, Stanley is now what it originally was — an opinion rooted in both the First and Fourth Amendments. Which amendment was more central to the holding of Stanley is not dispositive of any one case; rather, the relative importance of each amendment to a particular case will vary depending on the facts and circumstances. In other words, Stanley rests on the intersection of First and Fourth Amendment rights, and it is necessary to consider both aspects of Stanley to determine its applicability — specifically, whether the shared barracks room in this case constitutes a “home” under Stanley.

Diss. op. at 3 (citations omitted) (emphasis added). Judge Stucky also cites CAAF’s 2009 decision in United States v. Macomber, 67 M.J. 214, 219 (discussed here), to note that CAAF “has acknowledged that ‘[i]n the military context, the barracks or dormitory often serves as
the servicemember’s residence, his or her home.'” Bowersox, diss. op. at 4. Macomber  was a fact-specific case in which CAAF affirmed the trial-stage denial of a motion to suppress the results of a search of the appellant’s room on probable cause grounds (the search discovered child pornography). But Judge Ryan dissented, finding no probable cause to authorize the search of the appellant’s military dormitory room. Notably, Judge Ryan’s dissent in Macomber used some significant language to describe the military dormitory room at issue:

Admittedly, Appellant indicated an interest in viewing child pornography when he responded to the Eclipse Films survey and an interest in acquiring child pornography when he ordered two videos to be sent to him through the mail. But an express desire to have child pornography delivered to one’s home in the future does not by itself support an inference that Appellant previously possessed child pornography in that home, or anywhere else. It is by no means axiomatic that a person who expresses an interest in owning something actually already has possessed it, particularly when that thing is contraband.

Macomber, 67 M.J. at 222 (Ryan, J. dissenting) (emphasis added). Judge Stucky’s dissent in Bowersox doesn’t explicitly highlight this point. But reading his dissent was enough to cause me to look up Macomber and find this language, which either means I’m weird or Judge Stucky is subtle (or both). Of course, Macomber and Bowersox involve different legal questions, and were decided four years apart, but I think this shows a significant shift in Judge Ryan’s feelings about a barracks. “Home” is a word with a lot of meaning. After all, there’s no place like it.

Continuing in Bowersox, Judge Stucky finds that:

Like Stanley, this case lies at the intersection of First and Fourth Amendment rights. Appellant was charged with conduct protected by the First Amendment — mere possession — in a place expressly protected by the Fourth Amendment — a password-protected computer. Whatever the limits of constitutional protections in the barracks are, where, as here, a servicemember’s First and Fourth Amendment rights intersect, the barracks are most like the “home” envisioned by the Supreme Court in Stanley.

Diss. op. at 5. Just saying that “mere possession” is “conduct protected by the First Amendment” may be a stretch (especially since Judge Stucky agrees with the majority’s finding that the images are contraband (Diss. op. at 10 N.5)), but analyzing this issue with a mix of First and Fourth Amendment principles is a better fit than the majority’s Fourth Amendment alone analysis. I think that constitutional protection in a situation like this comes from a mix of the character of the item and the place of possession (hence the 1st/4th Amendment hybrid). I also think this is exactly the point Judge Stucky is making. He continues:

The Constitution does not end at the barracks door, and the Fourth Amendment applies to the area at issue — a password-protected computer in a shared barracks room. Here we are dealing with private materials in a private space that, by virtue of password protections, was inaccessible by others. Unlike choosing a roommate, cooking, inspections, overnight guests, or apprehension by military police, the “use” of the barracks room at issue did not implicate the shared or command aspects of the barracks room — the aspects that make a barracks room less like a “home.” Rather, this case only involves aspects of a barracks room that are most like a “home” and are specifically protected under the Fourth Amendment.

Diss. op. at 7. A footnote dismisses the significance of the Appellant having invited his roommate to look at the questionable website, noting that this action “does not negate Appellant’s privacy interest in everything else on the computer.” Diss. op. at 7 N.4.

Judge Stucky concludes his dissent with this simple principle:

I may not agree with Appellant’s choice of reading material, but he was charged only with constitutionally protected conduct, in a place deserving of constitutional protection, and I would therefore reverse the decision of the United States Army Court of Criminal Appeals.

Diss. op. at 10.

As discussed above, I anticipate a cert petition (and I recognize that it faces long odds). In a lot of ways, CAAF’s opinion in Bowersox is a major blow to privacy rights for servicemembers living in military barracks, as its basic rationale is a broad pronouncement that a barracks room is not a home for the purposes of determining privacy interests. I see ways this rationale could be used by an overzealous commander to prohibit a broad range of presumably-private activity. Rather than clarify the degree of privacy that servicemembers do retain in the barracks, the majority muddies the water with an unclear distinction between a barracks and a home. The unique circumstances of military life clearly justify special considerations in the barracks; inspections are as much a training tool as they are an enforcement mechanism. But even the most public of officials is entitled to a private life (one could even consider the Salyer case in this context), and the concept of “personal space” is universally acknowledged, even in the military.

I don’t think Judge Ryan and the majority are hostile to privacy rights of servicemembers, but I do think such rights are deserving of greater protections that they currently receive. Perhaps we’ll see if SCOTUS has anything to say about it.

Case Links:
ACCA opinion (71 M.J. 561 (A.Ct.Crim.App. 2012)
Blog post: Reminder from the ACCA: you’re special
Blog post: Bowersox granted
Appellant’s Brief
Appellee’s (Government) Brief
Appellant’s Reply Brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: CAAF releases Bowersox Opinion
Blog post: Opinion analysis

5 Responses to “Opinion Analysis: United States v. Bowersox, No. 12-0398/AR”

  1. sja96 says:

    Hard to read opinion as broadly as it is written with respect to barracks versus home privacy.  Key fact is that Bowersox showed his roommate images of minors engaged in sexual activities.  Different outcome if he had hidden images and roommate or visitor had viewed them without his permission.

  2. Zachary Spilman says:

    sja96:
    Key fact is that Bowersox showed his roommate images of minors engaged in sexual activities.  Different outcome if he had hidden images and roommate or visitor had viewed them without his permission.

    I strongly disagree. I’ll note that during the oral argument there was discussion about how the barracks room had been split into “sides” that were fairly well respected by both residents. But in her opinion, Judge Ryan specifically discusses how the majority sees a barracks as different from a home:

    …we do not agree that one’s privacy interest in a shared barracks room is coextensive with one’s privacy interest in their home…

    Slip op. at 13. Then, quoting United States v. McCarthy, 38 M.J. 398, 403 (C.M.A. 1993), she notes some of the ways a barracks is different, such as room and roommate assignment (vice choice), prohibitions of cooking and overnight guests, and inspections. Slip op. at 13. This leads to her conclusion:

    Thus, a soldier has less of an expectation of privacy in his shared barracks room than a civilian does in his home.

    Slip op. at 13-14. It is only in this context that it matters that the roommate saw questionable images on the Appellant’s computer.

    Here, the fact that Appellant purposefully exposed SPC Bryant to the obscene computer depictions in their shared barracks room highlights the divergent natures of a shared barracks room and a private home.

    Slip op. at 14 (emphasis added). Also:

    The very nature of a shared barracks room increases the risk that obscene materials will be viewed by those who do not wish to view them. The natural tendency of material in the home being kept private is substantially diminished in a shared barracks room.

    Slip op. at 14-15 (citations and marks omitted) (emphasis added).

    If showing the images to the roommate (or him seeing them uninvited) was a dispositive factor, Judge Ryan would have said as much. Moreover, she wouldn’t have repeatedly emphasized how a “shared barracks room” is different from a “home.” She also wouldn’t have taken this extra step:

    Moreover, 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, see Conklin, 63 M.J. at 337 (finding the warrantless search of a servicemember’s computer illegal because “an individual sharing a two-person dormitory room has a reasonable expectation of privacy in the files kept on a personally owned computer”), that privacy interest is not congruent with the discrete and special privacy interest in one’s home recognized by Stanley and was, in this case, overcome by a lawful warrant authorizing a search for contraband based on probable cause.

    Slip op. at 15. I could write a lengthy post on this just sentence, and if I were still a prosecutor I’d probably make it part of my email signature block. But I’ll say this much now: in a straight Fourth Amendment analysis, Judge Ryan distinguishes the unique, non-home nature of the barracks room as separate from the existence of a lawful warrant authorizing the search of the place where the contraband was found.

    So I don’t see how it’s different if, say, the roommate had seen the images after using the computer uninvited for some innocuous purpose.

  3. Zachary Spilman says:

    Someone I work with posed an interesting question to me today about this case: Since the image doesn’t have to depict an actual minor, what if it is a graphical representation of a non-minor dressed to look like a minor (i.e., a depiction of someone in a “schoolgirl costume”)?

    I answered that I didn’t think such an image would meet the statutory definition of a minor, as the statute requires something that “depicts a minor” or “depicts an image that is, or appears to be, of a minor.”

    But the more I think about it, the more I realize that it’s a really good question. After all, how can anyone know that such an image is intended to depict a 20 year old dressed up (down?) to look like a 15 year old? And even if it were, doesn’t a fake image of a 20 year old dressed to look like a 15 year old just equate to a fake image of a 15 year old, which is the statutory definition of contraband?

    Plus, how do you age-determine a cartoon? Anyone care to guess Jessica Rabbit’s age?

    One could go further and imagine even more disturbing permutations for obscene cartoon imagery of “a minor”: franken-images (face of a grandmother, body of a child, three arms), human-animal hybrids… on second thought, I’m not going to go further.

    With the right facts, it seems like there’s still room for a void for vagueness challenge.

  4. ResIpsaLoquitur says:

    Zach,
    Oh gee whiz, you create a weird point that could make a judge’s head explode if he or she isn’t well-versed in the nuances of science fiction.  I know that comic books can get really weird with this sort of thing.  The current iteration of Superboy is a young clone of Superman, so he’s chronologically young (one, maybe?) but looks 16.  The Incredible Hulk also has a son who aged quickly (it’s complicated), so he’s chronologically one, looks ten, and when he “Hulks out,” looks adult.  And then there was that time Storm from the X-Men was turned into a teenager–grown woman, child body.  There’s probably plenty of examples from outside of comics.  I think there was a character on Star Trek: Voyager who had a very short lifespan, so she was chronologically four but looked 30. 
    I am loathe to imagine the kinds of fanart and fanfiction that people could come up with.  I do think a skilled defense attorney could have a lot of fun depending on what the government wanted to charge.  I’m going to simply guess that a judge is going to have to make an “unconstitutional as applied” based on common sense and the facts of the case. 

  5. Contract Lawyer says:

    Anyone read Hustler’s “Barley Legal”?  Same concept, but real legal aged women dressed down to look younger.