CAAFlog » October 2018 Term » United States v. Meakin

CAAF decided the Air Force case of United States v. Meakin, 78 M.J. 396, 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.

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Audio of today’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. Hutchins, No. 18-0234/MC (CAAFlog case page): Oral argument audio.

United States v. Meakin, No. 18-0339/AF (CAAFlog case page): Oral argument audio.

The audio is also available on our oral argument audio podcast.

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).

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On Thursday CAAF granted review in this Air Force case:

No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following 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.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is available here and explains that the appellant – a Lieutenant Colonel – was convicted contrary to his pleas of not guilty of numerous specifications of conduct unbecoming an officer and a gentleman for engaging in indecent online conversations. “The content of the conversations involved extremely graphic descriptions of sexual abuse and degradation of children.” Slip op. at 2. The appellant separately pleaded guilty in federal district court to wrongfully accessing child pornography.

The CCA concluded:

Here, Appellant chose to express his obscene “fantasies” via the medium of online chats and emails, and analogizes that activity to private conversations within his home which he asserts is protected free speech. Under Moore, such speech is not afforded constitutional protection.

The tension between Moore and Hartwig relied upon by Appellant has no bearing on the issue before us. Here, the court must determine whether Appellant’s online chats and emails were sufficient to constitute conduct unbecoming an officer. The content of Appellant’s online discussions were clearly indecent. The charged conduct need not actually damage the reputation of the military, instead it only has to have a tendency to do so. Although Appellant’s identity as a military member was revealed in the course of the criminal investigation, he did not have to outwardly identify himself as a member of the military for his actions to constitute conduct unbecoming an officer. Appellant’s conduct was disgraceful to himself and the reputation of the military.

Slip op. at 7 (internal citations omitted).