CAAF decided the Air Force case of United States v. Meakin, __ M.J. __, No. 18-0339/AF (CAAFlog case page) (link to slip op.), on May 7, 2019. Considering the appellant’s indecent online communications with others (one of whom was an undercover law enforcement agent), the court holds that the communications were obscene speech that is not protected by the First Amendment, that they are not protected by any other liberty interest, and that the unique nature of the offense of conduct unbecoming an officer and a gentleman defined by Article 133 provides a “more exacting standard of conduct [that] can be traced back at least to the days of knighthood where knights were held to a higher standard of conduct than their fellow countrymen in the Court of Chivalry.” Slip op. at 13 (marks and citation omitted). Accordingly, CAAF affirms the two charges and seventeen specifications of conduct unbecoming an officer and a gentleman, in violation of Article 133, and the sentence of confinement for 19 months and 15 days, total forfeitures, and a dismissal.

Judge Ryan writes for a unanimous court.

CAAF granted review of one issue:

Whether Appellant’s conviction for engaging in anonymous, private, and consensual communications with an unknown partner(s) in the privacy of his home was legally sufficient.

Lieutenant Colonel (O-5) Meakin was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of seventeen specifications of conduct unbecoming an officer and a gentleman, and sentenced to confinement for 20 months, total forfeitures, and a dismissal. The convening authority reduced the confinement by 15 days. Meakin’s convictions were based on his online chats with unidentified individuals about sexual fantasies involving children. Separate from his court-martial prosecution, Meakin also pleaded guilty in federal court to knowingly accessing child pornography.

Meakin argued at the court-martial that the charged violations of Article 133 must be dismissed because his communications were private and protected by the First Amendment, and Meakin renewed that argument on appeal before the Air Force CCA and at CAAF. It is thoroughly rejected.

Judge Ryan’s opinion for the unanimous court begins by explaining that Meakin’s conduct was not protected speech:

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.” United States v. Williams, 553 U.S. 285, 288 (2008); United States v. Wilcox, 66 M.J. 442, 447 (C.A.A.F. 2008). Appellant concedes that the writings that formed the basis for the charges and specifications in this case constituted obscenity. . . .

And no one, including Appellant, disputes that the speech in this case conveyed patently offensive, “repugnant sexual fantasies involving children” (from Appellant’s brief) that appealed, and was intended to appeal, to the prurient interest. Such speech is not protected by the First Amendment. [Miller v. California, 413 U.S. 15, 24 (1973)].

Slip op. at 8. Yet Meakin also argued “that his obscenity, transmitted from his home computer to anonymous third-parties via online instant messages and emails, is analogous to having a private discussion within the seclusion of his home and thus protected.” Slip op. at 8-9. That analogy, however, doesn’t hold up:

The analogy is entirely inapt. First, the zone of privacy that [Stanley v. Georgia, 394 U.S. 557 (1969),] protects does not extend beyond the confines of the home. United States v. Bowersox, 72 M.J. 71, 76 (C.A.A.F. 2013) (“‘The Court has consistently rejected constitutional protection for obscene material outside the home.’ ” (quoting United States v. Orito, 413 U.S. 139, 141–42 (1973))). In this case the obscenity was both transported and distributed via the internet. . . . Neither 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.

Second, Stanley is predicated on both the sanctity of the home and solitude. See 394 U.S. at 565 (“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” (emphasis added)). . . .

While Stanley notes that our “whole constitutional heritage rebels at the thoughts of giving government the power to control men’s minds,” 394 U.S. at 565, there is a stark difference between thinking thoughts within the confines of the home and reaching outward to share obscenity and encourage strangers across the world to sexually abuse their children.

Slip op. at 9-10.

Meakin also argued that his conduct was protected by the liberty interest identified in Lawrence v. Texas, 539 U.S. 558 (2003). That is rejected as a demeaning misinterpretation of Lawrence:

In essence, Appellant seeks to place distributing or transmitting obscenity to individuals whose true names he did not even know and whom he had not met, on par with the liberty interest and fundamental right to form intimate, meaningful, and personal bonds that manifest themselves through sexual conduct described in Lawrence. We agree with the court in United States v. Stagliano, which observed, when upholding statutes that criminalize the interstate trafficking of obscenity against a challenge similarly grounded in Lawrence, that:

What is evident from the Supreme Court’s decision is its intent to prevent the state from burdening certain intimate, consensual relationships by criminalizing the private sexual acts that are instrumental to those relationships. In defining the contours of the liberty interest, the Supreme Court made a point to note that the statutes challenged in Lawrence “seek to control a personal relationship that . . . is within the liberty of persons to choose without being punished as criminals.” 539 U.S. at 567. The defendants, in effect, demean [Lawrence’s] liberty interest by defining it as a right to sexual privacy, when it is really about the right to form meaningful, personal bonds that find expression in sexual intimacy.

693 F. Supp. 2d 25, 38 (D.D.C. 2010) (ellipsis in original). We reject Appellant’s argument that distributing or transmitting obscenity that encourages, describes, and revels in the sexual exploitation of children over the internet falls within the fundamental liberty interest recognized in Lawrence.

Slip op. at 11 (emphasis added)

Finally, Meakin argued that his convictions of conduct unbecoming were legally insufficient “because he (1) couldn’t know that private consensual communications wereillegal or would pose ‘a clear and present danger’ to his status as an officer, and (2) there was ‘no connection at all between Appellant’s speech and the military mission.'” Slip op. at 11-12. CAAF rejects both contentions.

First, Judge Ryan explains that “the clear and present danger test only applies to speech that is protected by the First Amendment, not obscenity.” Slip op. at 12 (marks and citation omitted). Because Meakin’s conduct is unprotected obscenity, it need not pose a clear and present danger to his status as an officer to be punishable under Article 133.

Second, Judge Ryan outlines why a violation of Article 133 need not be otherwise criminal, or even public. She explains that CAAF has “previously held an officer’s conduct need not violate other provisions of the UCMJ or even be otherwise criminal to violate Article 133, UCMJ.” Slip op. at 12 (citing United States v. Lofton, 69 M.J. 386, 388 (C.A.A.F. 2011)). She also observes that “this Court has long held that ‘the conduct of an officer may be unbecoming even when it is private.'” Slip op. at 12 (quoting United States v. Moore, 38 M.J. 490, 493 (C.A.A.F. 1994) (marks omitted). Furthermore,

it has historically been the case that officers are held to a higher standard of behavior. . . .

This more exacting standard of conduct can be traced back at least to “the days of knighthood” where “knights were held to a higher standard of conduct than their fellow countrymen” in “the Court of Chivalry.” James Snedeker, Military Justice under the Uniform Code 887 (1953). An examination of the British antecedents of our military law shows that the military law of Britain long contained remarkably similar language to the current Article 133, UCMJ. Parker, 417 U.S. at 745. In 1775, a conduct unbecoming article was adopted into the Articles of War. Id. at 745–46. And that language remained essentially unchanged from 1806, until it was enacted as Article 133 of the UCMJ in 1951. Id. The discussion to Article 133, UCMJ, further notes:

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.

MCM pt. IV, para. 59.c.(2) (emphasis added).

This heightened standard for officers commands respect and obedience and preserves their ability to lead and command their subordinates. Parker, 417 U.S. at 743–45; see also Winthrop, supra, p. 13, at 710–11 (stating that the offense intended “to establish a higher standard of character and conduct for officers of the army”). 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. Moore, 38 M.J. at 493 (citing Parker, 417 U.S. at 765 (Blackmun, J., with whom Burger, C.J., joins, concurring)); Fletcher v. United States, 26 Ct. Cl. 541, 563 (1891), rev’d sub nom. United States v. Fletcher, 148 U.S. 84 (1893).

Unlike Article 134, UCMJ, which is applicable to all servicemembers, 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. See Fletcher, 148 U.S. at 91–92 (finding that failure to pay certain debts was facially sufficient to establish the offense of conduct unbecoming an officer and gentleman).

In sum, even if it were the test, we readily reject Appellant’s claim that a reasonable officer, by reference to either plain common sense or the customs of the service, would not have anticipated that transmitting speech that describes, encourages, and normalizes child sexual exploitation and molestation in graphic detail would surpass 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.” MCM pt. IV, para. 59.c.(2). We further reject Appellant’s claim that a connection to the military mission is required to prosecute a violation of Article 133, UCMJ. As such, under the facts of the case, we hold that the evidence was legally sufficient.

Slip op. at 13-14.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (N-M App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio.
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: The appellant’s indecent online communications were not protected by the Constitution and they disgraced him as an officer and a gentleman, in United States v. Meakin”

  1. LT Weinberg says:

    A series of arguments at once shameful and shameless.

  2. Kafka, Esq. says:

    A series of arguments at once shameful and shameless.

    It’s called “advocacy” and our system depends on it.  If the arguments were so “shameful and shameless,” CAAF wouldn’t have granted review.

  3. David A. says:

    CAAF wouldn’t have granted review.
    CAAF granted review to slam the door on expansive readings of Stanley and Lawrence.

  4. Kafka, Esq. says:

    CAAF granted review to slam the door on expansive readings of Stanley and Lawrence.

    Sure — agreed. But it’s ignorant to call an expansive reading of case law “shameful and shameless” when the contours of that case law are still being drawn in a post-tech revolution world.

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