Argument Preview: Whether indecent online communications are constitutionally-protected, in United States v. Meakin
CAAF will hear oral argument in the Air Force case of United States v. Meakin, No. 18-0339/AF (CAAFlog case page), on Wednesday, January 23, 2019, after the argument in Hutchins. The court granted oral argument 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. 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 (but those offenses are seemingly unrelated).
Meakin argued at the court-martial that the charges must be dismissed because his communications were private and protected by the First Amendment, and Meakin renews that argument at CAAF. His brief acknowledges that he “communicated repugnant sexual fantasies involving children,” App. Br. at 15, nevertheless he asserts that the evidence fails to meet the heightened burden of proof required for a conviction of conduct unbecoming based on constitutionally-protected activity.
CAAF’s review involves a two-step process. First it must determine whether Meakin’s chats were protected speech. Then, if they were, CAAF must determine if the prosecution proved that a “clear and present danger that the speech will, in dishonoring or disgracing the officer personally, seriously compromise the person’s standing as an officer.” United States v. Hartwig, 39 M.J. 125, 128 (C.A.A.F. 1994) (marks and citation omitted).
Yet Meakin’s brief argues for a third step in the process: that CAAF “may undertake to determine whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” App. Br. at 40 (quoting United States v. Rapert, 75 M.J. 164, 171 (C.A.A.F. 2016) (CAAFlog case page)) (marks and citations omitted).
Meakin’s brief asks CAAF to extend the reasoning of Stanley v. Georgia, 394 U.S. 557 (1969) (invalidating an anti-obscenity statute), and Lawrence v. Texas, 539 U.S. 558 (2003) (invalidating an anti-sodomy statute), to his conduct, arguing that:
It is one thing to condemn Appellant for his repugnant speech. It is quite another to convict him when he effects such speech in a wholly private, consensual, and non-commercial manner. Had Appellant identified himself as a military member, involved other military members, communicated using government equipment, or sent messages from his work station, or had he directly contributed to the abuse of any children or requested illegal materials, perhaps the analysis would be different. Instead, Appellant engaged in lawful sexual intimacies with a willing partner(s) in a non-public, private setting, and these intimacies did not otherwise have any connection to the military. Under these circumstances, Appellant’s conduct should be afforded constitutional protection.
App. Br. at 43.
The Air Force Government Appellate Division responds that “First Amendment protections apply differently in the military,” Gov’t Div. Br. at 13, but nevertheless “even for civilians, First Amendment protection draws a line in the sand between the possession of obscenity and the transmission of obscenity,” Gov’t Div. Br. at 10 (emphasis in original). The Government Division’s brief distinguishes this case from Stanley on the basis that:
Appellant was not “sitting alone in his own house” with his obscene thoughts or materials. [Stanley, 394 U.S.] at 565 (emphasis added). In other words, Stanley is predicated on the speech not having an audience. Unlike Stanley, Appellant’s case deals with the production, preservation, and transmission of written obscenities, detailing and encouraging unspeakable acts of child rape and degradation.
Gov’t Div. Br. at 11 (emphasis in original). It also distinguishes this case from Lawrence on the basis that:
If Appellant wanted to have consensual sexual conversations with anonymous internet users while in his home—such conduct might be permitted under Lawrence. However, Appellant wanted to have (and did have) obscene sexual conversations with these anonymous users. Obscenity is a First Amendment horse of different color, for which Lawrence offers no protection.
Gov’t Div. Br. at 11-12. The Government Division’s brief also rejects Meakin’s effort to add a third step to CAAF’s analysis, explaining that the test applied in Rapert involved dangerous (not obscene) speech, and that “there is no precedent to suggest this analysis applies for obscenity.” Gov’t Div. Br. at 34-35 (citing cases).
Meakin’s reply brief attacks the Government Division’s approach as overly broad:
the government believes Appellant committed unbecoming conduct the moment he sent his emails. (Gov. Br. at 24). In fact, the government posits that Appellant would have been guilty of unbecoming conduct for merely uttering his fantasies to others, even within the privacy of his own home. (Id. at 23).
These views fly in the face of the rights to privacy and free speech, and would create a dangerous precedent for not just officers, but potentially all military members who are prohibited under Article 134, UCMJ, 10 U.S.C. § 934, from engaging in indecent speech. Indeed, a member could face charges for discussing sexual fetishes with a paramour in the privacy of their home, or for emailing intimate pictures to a loved one. Given the absurdity of such results, this Court should reject the government’s overly broad interpretation of the military’s need and authority to regulate speech.
Reply Br. at 10-11.