United States v. Wilcox, 66 M.J. 442 (the First Amendment provides that Congress shall make no law abridging the freedom of speech; this protection permits the expression of ideas, even the expression of ideas the vast majority of society finds offensive or distasteful; the sweep of this protection is less comprehensive in the military context, given the different character of the military community and mission).
(the CAAF’s jurisprudence on charged violations of Article 134, UCMJ, involving speech recognizes the importance of the context of that speech; consistent with the focus on context necessary to establish a violation of Article 134, UCMJ, while speech that would be impervious to criminal sanction in the civilian world may be proscribed in the military, the CAAF has long recognized that when assessing a criminal violation implicating the First Amendment, the proper balance must be struck between the essential needs of the armed services and the right to speak out as a free American; necessarily, the CAAF must be sensitive to protection of the principle of free thought; prior to applying this balancing test to a charged violation of Article 134, UCMJ, involving speech, two threshold determinations must be made: first, the speech involved must be examined to determine whether it is otherwise protected under the First Amendment, and second, the government must have proved the elements of an Article 134, UCMJ, offense).
(no one disputes that servicemembers enjoy some measure of the right to free speech granted by the First Amendment; however, the right to free speech is not absolute, and some speech –- e.g., dangerous speech, obscenity, or fighting words -- is not protected by the First Amendment, regardless of the military or civilian status of the speaker).
(the test for dangerous speech unprotected by the First Amendment in the civilian community is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent; it is a question of proximity and degree; under the standard applicable to the civilian world, clear and present danger extends to speech directed to inciting or producing imminent lawless action likely to incite or produce such action).
(a lower standard for dangerous speech unprotected by the First Amendment pertains in the military context, where dangerous speech is that speech that interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops).
(it is clear that additional burdens may be placed on First Amendment rights in the context of the military, given the different character of the military community and mission; thus, no one questions that deference must be given to military authorities’ determination that military needs justify particular restrictions on the First Amendment, and that military commanders may enact regulations and take administrative actions that place burdens on, or exact administrative consequences for, speech, expression, and the exercise of religion that would not pass constitutional muster in the civilian context).
(for any offense charged under Article 134, UCMJ, clauses 1 or 2, the government must prove: (1) that the accused did a certain act, and (2) that the act was, under the circumstances, to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces; in the context of the First Amendment, in order to meet the second element for conduct charged under a prejudice of good order and discipline theory, the prosecution must show a reasonably direct and palpable connection between an appellant’s statements and the military mission; a direct and palpable connection between speech and the military mission or military environment is also required for an Article 134, UCMJ, offense charged under a service discrediting theory).
(if an accused’s speech is otherwise protected by the First Amendment, and if a reasonably direct and palpable connection between the speech and the military mission or military environment is established, only then need an appellate court determine whether criminalization of that speech is justified despite First Amendment concerns; ultimately, an appellate court must weigh the gravity of the effect of the speech, discounted by the improbability of its effectiveness on the audience the speaker sought to reach, to determine whether the conviction is warranted; where the record does not establish a reasonably direct and palpable connection between the speech and the military at all, let alone the military mission or military environment, the balancing test is mooted by the legal insufficiency of the charged offense).
