tv Discussion Focuses on Free Speech in the Military CSPAN April 24, 2017 2:52pm-4:02pm EDT
involving service members. the george washington university law school and the american bar association co-hosted this event. it's about an hour. >> thank you very much, sir. it comes out really well when you write it yourself. well, first i'd like to thank the military law society and the standing committee for putting together this event. i'd like to thank all of our guests for attending and most especially i'd like to thank our panelists for coming here to speak about these important issues. the topic for today's discussion is free speech and sexual harassment cases, when should the military prosecute. this is not a brand new issue. it's an issue that has been of some concern, some considerable concern in the armed forces for many years, but it has come to the forefront again with the recent allegations of widespread misconduct within the marine corps, and in particular, the use or misuse of social media to
post and share nude photographs and engage in other unseemly conduct. on march 17th, the marine corps issued a policy guidance, social media guidance, in which they said and i only quote a small portion of it. marines represent the marine corps at all times and their speech and conduct must consistently embody our core values and commitment to each other, our corps and our nations. marines must never engage in commentary or public content on social networking platforms or other forms of communication that harm good order and discipline or bring discredit upon themselves, their unit or the marine corps. "time" magazine responded about the new policy, saying it makes clear how existing rules can be used to prosecute offensive and indecent and disrespectful online activities, but it creates no new laws, underscoring the legal quagmire posed by the internet and
constraints on military leaders posed by privacy laws and first amendment rights of free speech. i think we all know that free speech has limits. certainly neither civilians nor military members can post threats of various kinds on the internet, can't violate copyrights, cannot engage in libel and so forth without facing the consequences. but i think the more difficult issue is are there differences between service members and civilians such as speech can be more tightly restricted among service members, and if so, what are those restrictions. i think we have three great experts who can talk not only about the law in this area but also about the real problem that the military is facing with respect to the social media issues. our first speaker will be the honorable james or jamie baker. judge baker retired from the united states court of appeal from the armed forces in july of 2015 after having served for 15
years. the last four of those were as the chief judge. he's currently the chair of the aba standing committee on law and national security. previously he served in various capacities in the white house before becoming a judge, and most recently he has been a visiting professor at the georgetown law school. he has his bachelor's and law degree from yale. he'll mention briefly a very important case i hope you'll take a look at, united states against wilcox, a case in which a soldier was prosecuted for posting, among other things, on his aol profile speech advocating racial intolerance. our second speaker will be associate professor rachel van landingham. she's a professor at the southwestern law school. before going to law school she spent 20 years in the air force. 10 years of that time was spent as a judge advocate. following her service she was the deputy -- department head of the department of law and
assistant professor of law at the us air force academy. she also served as a visiting professor at stetson university and has written extensively on this subject. most recently and i highly recommend that you take a look at some of her publications. she's been highly critical of the marine corps's handling of the recent scandal involving social media and has suggested that the marine corps comandante step down. she has asserted that the secretary of defense now has an opportunity to undo some of his contributions to the marine corps that is unwelcoming to women and he can do that either by relieving the comandante of his command and by -- not either, and by ensuring to those who are abusing the women in the corps are held accountable. and then finally we will hear from brigadier general james shwank, retired, united states
marine corps. the general served a total of 49 years both in uniform and then also as a civil servant, started as a judge advocate in the marine corps, continued throughout his career, held positions at every level. finally concluded his service as the judge advocate general of the navy military law and the military assistant to the dod general counsel and served for 14 years as the general counsel in the department of defense. he is a graduate of american university where he earned his jd in 1977. he's a member of the subcommittee of the judicial proceedings panel which in february of 2017 released a report on sexual investigations in the military which i also highly recommend, especially taking a look at suggestions for improvement. i thought we would start out with a few general questions and then turn as quickly as possible to questions from the floor and also from me and from each other about these topics.
and so judge baker, you've written on this subject, and i guess the question is, at least the initial question, how do the rights of service members differ from the rights of nonservice members with respect to first amendment, or is it not really a difference, just a difference of application of the usual standards of compelling state interests and all the other aspects of the first amendment? >> all right, thank you. thank you to george washington university, all the deans, dean mags and the rest of the deans here for hosting this event. thank you, john, for being here. i'm obviously stalling white i'm collecting my talking points. the -- there was a time when folks thought that the rights that pertain to members of the military were in some way different -- different than the rights in the constitution, and
there was a case in our court that came up with a novel thought that the constitution applied to both members of the service, as well as civilians. and, of course, that's the obvious answer. the question is, how? what is different? and it's easiest to see why you might want to have different -- why the constitution might apply in different ways in two ways. one, the text of the constitution in certain instances specifically provides for that, right? it gives particular authority to the congress to provide for rules and regulations for the armed forces, and there are certain provisions in the constitution that expressly exempt the military from their application. at the same time, you can see why, if you're looking at the fourth amendment, for example, protecting everyone from unreasonable searches, what is reasonable or unreasonable in military context might be different from what's reasonable or unreasonable in civilian context.
the difference between your home in alexandria, virginia, compared to a tent or a fox hole in afghanistan. you can see why you might have a different interpretation. same constitution, same amendment, different application. one reason the congress established the united states court of appeals for the armed forces in with the ucmj in 1950, 1951, was to have a civilian court comprised of civilians who could help reach judgments about how and in what manner the constitution should apply in military context. that's high level background. now with respect to the first amendment, the first amendment applies to the military as well as to civilians. and as we know, the amendment regulates and protects content and allows some further restriction on time, place, and
manner of restrictions but also protects certain time, place and manner premises, as well. however, speech that is permissible in civilian life is not always permissible in military context. and we know this both from sort of a common sense reasoning, which is it's very hard to run a military if you are allowed to march outside of the white house with a sign saying that the commander in chief is a fascist or something like that. that tends to undermine one's sense that the chain of command is operating successfully. and in parker v. levy, the seminal case in this -- should i go through parker v. levy, or not? >> i think it's a good idea. >> parker v. levy is the court case elevated to the status of a seminal case, because the
supreme court takes so few cases. but it also happens that parker v. levy is a critical case, because it stands for the proposition that the same constitution applies to both military and civilian society, but it can apply in a different manner in military context. the case involves a doctor, a dermatologist, as a matter of fact, during the vietnam context who was, one, refusing to train certain soldiers to deploy to vietnam for which he was charged with disobedience of an order, but also for speaking to the soldiers he was training and urging them not to support the united states, to support the military, not to deploy. and this was, obviously, a verbal expression of his views, and it was a political expression of his views, and one thing we know from the book of first amendment law is the first amendment is particularly protective of political speech
as a backbone of democracy. so here we had political speech in the context of a military setting, and the supreme court -- and then he was charged with conduct unbecoming an officer. and under article 134, which is the general disorder, he was charged with service discrediting conduct. and this is the important point of this case. in the military under article 34, if you engage in conduct that has a tendency to cause service discredit or that undermines good order and discipline, you can be charged with an offense. now, to a civilian, you're saying, that's it? those are the elements of the offense? how do you know what's discrediting? how do you know what undermines good order and discipline? so, parker challenged his conviction under the uniform
code of military justice, both within the military system, and then he appealed to the third -- to the district court, federal district court, and then the 3rd circuit. the 3rd circuit found article 134 was vague and overbroad, because it did not give fair notice as to what was criminal or not, what was service discrediting or not, and then the supreme court reversed and basically concluded that because there are different societies, civilian and military, there could be a different standard for first amendment application. and what saved article 134 from an overbreadth and vagueness on its challenge, our court, and subordinate military courts, provided context and meaning to 134 through case law, and, of course, the manual itself and
the code provides additional meaning and context to the article in specifying certain types of activity that would be service discrediting. are you following? am i making sense to you? this is one where you can go down the rabbit hole of 134 for a couple of weeks and not come out. or you can come out. i'm not saying i agree or disagree with the parker v. levy, and there's some language in parker v. levy where if you read it, you might say, boy, that's pretty dated, or that doesn't sound like the civil/military relationship i know today, that doesn't sound like the military i was in. but the key principle that you should take away from parker v. levy, one, the first amendment applies, yes, two, it may apply
in a different manner, wherein, three, in order to avoid overbreadth and vagueness concerns, as in civilian life, a person needs to be on fair notice as to what is protected speech and what is criminal speech. and one of the tensions that the law is facing today and in the context of the internet, for example, is in military context, what does that mean when i'm -- and i'm not at home for this very reason, but what does it mean when i'm at home on facebook or in a chat room talking, and i'm a member of the military? what is protected, what isn't protected? what is speech, what isn't speech, and so on. is that -- can i just make one point -- >> that's the issue, yeah. >> can i say one thing, which i do not want to pass this opportunity up. one, this is a panel about the first amendment and about what might be prosecuted and what
might not be prosecuted, but let us not forget that i would prefer that we not have this discussion at all, not just because i'm up here, but because i think the name of the game is prevention. and you don't get to the prosecution question if you don't have the sexual harassment, the sexual assault, or the viewing of the child pornography to begin with. and if i had the opportunity to speak to a member of the joint chiefs, or to speak to a colonel or anybody in a command position in the military, and i never passed up an opportunity to do so, i would not talk about what is prosecutable or not prosecutable under the ucmj first. i would talk about what they can do to prevent these things. in my 15 years on the court, i rarely saw a case, and i saw many cases, most of our docket, of course, we're a discretionary
docket, so we choose what we hear and we usually heard more complex cases. most of our docket involves sexual assault or child pornography, and usually meant fourth or fifth amendment cases. and not always, but invariably when there is sexual assault involved, there is excess alcohol involved in some way, and invariably i was left asking myself the question, where was the sergeant who pulled the person out of the situation? either the perpetrator or the victim. where is the buddy? and then i would ask myself, where was the leadership in the unit that didn't let people go out on liberty or go out at home at night without giving them a talk first about sexual assault, child pornography, and proper use of the internet? leadership is the primary way you deal with this, and, of course, the climate you set in the command will often determine the type of messages people are sending to each other on the internet.
so you can say don't do it, but then if you act in a sexist manner or you act like any number of ways as the commander, that's what people are going to follow. just like a coach can tell someone not to yell at the refs, you tell your players not to yell at the refs and then you start yelling at the refs. guess what the players are going to do. they got the message. leadership by example. so, it's great to talk about how to prosecute these things, but if you're not leading by example in the way you conduct yourself around every single member of your unit who has chosen to serve, then you're not performing your duty. >> thank you. i think you're up. >> thank you. i would like to echo judge baker's comment and his thanks to the aba standing committee on law and national security, to professor mags, and to george washington and to the illustrious george washington
military law society, and, of course, to general altenberg, et cetera. thank you so much for hosting this important event. i would like to piggyback on judge baker's comments on leadership and that fundamentally the current crisis represents a breakdown and a failure of leadership. professor mags mentioned that i have called for -- not that the comandante of the marine corps step down, i called for him to be fired and relieved of command. not because of his personal current handling of the current crises but because the buck stops somewhere, and the largest and oftentimes most controversial difference between the military's criminal justice system and that of the civilian world, the civilian -- various civilian criminal justice systems, state and federal, is that in the military it is a commander-run system, not a lawyer-run system. commanders make the ultimate decision on how to dispose of
allegations of misconduct of the troops under their command. and so, therefore, commanders are responsible to ensure that this disposition decision, the decision ultimately whether or not to prosecute, whether or not to handle misconduct using various means at a lower level, this disposition does not occur in a vacuum. it is various, as judge baker pointed out, it's very contextual, and that context is that the commanders have to ensure that individuals are well aware of their duties and their responsibilities, and that occurs via training. appropriate training, appropriate emphasis, appropriate accountability. when individuals' conduct breaks down to the point it's deleterious. at the end of the day, the fundamental purpose for having this separate system of criminal jus sis is to ensure good order and discipline. good order and discipline is a means to military effectiveness that has been long recognized
well before the united states military came into being, and i feel that the marine corps leadership was -- who was on notice since 2013 of the improper and deplorable sharing of private naked photos of fema reen service members by their fellow service members online, i feel that they were on notice because representative from california, jackie speier, actually wrote the leadership of the marine corps and the leadership of the department of defense and said this is going on, you need to stop this. we're focused on a culture of sexual harassment and sexual assault in the military. this is one more example of that toxic -- of that toxic culture. yet the command dant of tandante
corps at the time said sequester is hindering our ability to deal with these kinds of instances and we really don't have the appropriate resources. and again in 2014 there were numerous news articles bringing attention again to this problem that was specifically active duty marines, as well as others, posting photos that were originally privately shared of fellow marine corps service members, naked photos online, and making terrible comments about these women, and yet a proper leadership reaction was just not forthcoming. today, because there's public attention to it, suddenly we have a task force that's been appointed to look at this. there's been a message from the comandante of the marine core strongly condemning this type of behavior. the marine corps is thinking about incorporating vignettes of this is what you don't do, and, hey, leaders, you're on -- commanders, leaders, and leadership isn't just commanders, leadership, as judge baker pointed out, is also that sergeant, is also the leadership that comes down to the lowest level, but hey, leaders of the marine corps, you need to ensure that your troops understand this is wrong and there will be accountability.
and now there's new social media guidance regarding this type of behavior, as professor mags mentioned. where was that in 2013? it was lacking. in 2008, secretary robert gates, the secretary of defense, relieved of command the chief of staff of the air force. that's the air force equivalent of the comandante of the marine corps, and he fired the secretary of the air force. why? because of lax nuclear standards. no one was hurt. there was no nuclear explosion, but were there lax standards? absolutely. did those lax standards occur purely on the watch of those two individuals? no, but guess what, accountability means the buck stops somewhere, and by firing those two individuals, secretary gates sent a very powerful message to every commander in the united states air force that has anything to do with nuclear assurety that the air force, that the department of defense, that this nation, would not
tolerate failure of command, failure of leadership, failure of mission effectiveness. but we have a similar problem today. so in the words of the current secretary of the navy, sharing private naked photos of fellow service members without their consent is, quote, toxic predatory behavior, quote, that reveals an egregious breakdown of good order and discipline within the military. and per the secretary, is a toxic threat from within. and per the current commandant of the marine corps, on whose watch this crime has metastasized, those who serve must be held to a higher standard. we cannot win wars if marines can't trust one another. this is a matter of military effectiveness, just like lax -- just like nuclear assurety is a matter of nuclear effectiveness, good order and discipline is a matter of military effectiveness. as judge baker eloquently outlined for us, the supreme court -- while the u.s. supreme
court has recently declined to create new bright line categories of unprotected speech, has long recognized that certain types of speech have enjoyed less rigorous protection as a historical matter, though they may not be explicitly recognized as such, sharing private naked photos of someone without their consent is just that kind of communication, just that kind of speech that warrants less protection. and as the court of appeals for the armed forces, which judge baker lead, as they have frequently emphasized using the supreme court's famous line from parker v. levy, the law has long recognized the military is by necessity a specialized society, separate from civilian society. that is because the primary business of the military is to fight and to be ready to win the nation's wars. quoting from that case the court has said while the members of the military not excluded by the protection of the first amendment, the different character of the military community and the military mission requires a different application of these protections.
speech that may be protected in the civilian population may nonetheless undermine good order and discipline within the military, and if it does, it is constitutionally without protection. so sharing such naked photos of fellow service members online, making comments such as this woman should be raped, we should all rape her, look, this is her rape face, regarding identifiable fellow service members is a clear example of conduct that causes such a breakdown and simply lacks protection. i would argue not only in the civilian world, where over 35 states have criminalized in various manners such behavior, but in the military even more so. and it should be punished accordingly and the leaders who fail to take action should be held accountable, as well. and i'd like to echo judge baker's very accurate characterization of article 134, the general disorders provision and the uniform code of military justice. it's that catch-all provision that allows the military to
criminalize behavior that wouldn't, perhaps, be criminal in a civilian setting, but it would be in the military because of its affect on good order and discipline, its prejudicial effect, or its service discrediting nature. it is a rabbit hole, it is a labyrinth. do i believe much of the behavior, at least per the news articles that is being alleged right now regarding active duty marines posting photos and negative comments online, do i believe that some of that behavior can be accurately identified and punished under article 134? yes, but it's much more difficult, and as judge baker said, it's a rabbit hole. we're going to go into "alice and wonderland," we're going to fall through that rabbit hole. why not make it a lot easier for the military, for the commanders, to hold folks responsible and to train on this issue by making a stand-alone provision that criminalizes nonconsensual pornography, what's known as revenge porn,
and, in fact, there have been two bills recently introduced on the floor of the house of representatives that would do just that. interestingly, last year representative jackie speier from california, the same representative, same congresswoman that brought to the marine corps's attention in 2014 this revenge porn issue was occurring, she introduced a federal bill that would criminalize nonconsensual pornography in the civilian world as well. but specifically representative mcsally from arizona introduced a bill, i have not been able to find the language yet to that billion, that would criminalize nonconsensual sharing of intimate photos by military members to make it very clear to members of the military, the d bedrock of our criminal justice systems and the bedrock of the
constitution, fair notice that their conduct is criminal and make it easier for commanders to train, to point to, and bring individuals to account when they cross that red line. so i would love to answer questions later on. i want to, again, thank everyone on the panel and turn to general. >> general? >> thank you. well, hello, everyone, and i'm delighted to be here, and i would like to thank george washington and the aba standing committees for the opportunity to be with you. let me start by saying that this will be a lot more productive the more dialogue we have. as has been obvious so far, and i'll no doubt go the same path, we can talk forever up here, and it's more important that we talk about things you guys want to talk about. so i encourage you when there's breaks in the action, if you have a question, just raise your hand or yell it out or something and we'll get a dialogue going. one of the things that i've always enjoyed about these kinds of sessions is, i learn a lot from my colleagues, and i'm delighted to have two very well represented colleagues with me today. in fact, i sort of looked at the three of us and thought, well,
the two of them are here for the academic rigor you would expect from a panel at an academic institution and i'm here for the comic relief that, unfortunately, is all too often missing in an academic institution, so i encourage you to ask questions so that we can all learn. i know i'll learn from your questions and your comments, and there's only one person i will not take questions from, and that's in the third table back on the side there with the white shirt and the red tie, who used to be a -- he was one of the guys who couldn't get a job like judge baker, so he ended up as the chief judge of the united states court of appeals of the armed forces. andy, it's nice to see you. mr. efron. let me just say one thing in general about a way to approach this kind of a situation in a learning mode, in an open to understanding and thinking about things in ways different than you do it now. clarence gerald was a famous lawyer, you know, 100 years ago or thereabouts, little more than
that, and he had a saying that i stumbled across somewhere in my misspent youth, and it dawned on me it was a great way to sort of approach life, so i've used it as sort of a guide, and i offer it for your consideration, see what you think, but what the saying was, every day is blessed when you learn something new. and every day is doubly blessed when the new thing you learned changes an opinion you had the day before. so i look forward to coming out of this session as a doubly blessed day, and that's why i won't take questions from mr. efron. okay, on this issue of free speech, just imagine that we were all a bunch of civilians working for some private company and we hated the boss and we all said disparaging things about him every lunch break, you know, day after day. have we committed a criminal offense? no, we have not committed a criminal offense.
that's protected speech. is it a firing offense? if the boss finds out, could be a firing offense, but not a criminal offense. what happens in the military when that happens? well, congress rolled along when they established the ucmj and took provisions of substantiative criminal law from before there was a ucmj and adopted them into it, so we have disrespect statute, both for officers and a different one for enlisted. so that if you're sitting around and you decide to say disparaging things about me as your platoon commander, then guess what, you've just committed a criminal offense and something could happen to you. in the writeup that the president publishes to talk about the ucmj and to explain it, when he gets down to talking about -- it's called the manual for court-martial, when he gets down to talking about disrespect, it has four words that in my example where i was
your platoon commander would work out for me, truth is no defense. so the fact that you're making truthful disparaging comments about your platoon commander, doesn't matter. it's the disparagement that matters. why is that? and the answer is what both judge baker and professor talked about, the efficiency of the military depends in large measure on good order and discipline. and without good order and discipline, you're not going to have an efficient military. so then the question becomes what provides good order and discipline. and one of the things is respect. respect down the chain of command and up the chain of command. and so that disrespect has been criminalized. okay. we've also mentioned another thing for background that's important to remember. if you're in active duty, you're on active duty 24 hours a day, seven days a week for the term of your enlistment or the time you're on active duty.
if you're in the reserves, you're only on active duty when you're ordered to active duty. guess what, the rest of the time when you're back home and working at your civilian job, if you screw up, there may be no jurisdiction criminally, but administratively you can still be held accountable. we once had a marine officer who was not on active duty, was in the reserves, went jogging at a track in his local town at the high school, was really upset about people in the left-hand lane that were going slower, so every time he lapped them, he had to go around them, so said something to them and they didn't appreciate it, and the next thing you know they got in a fight. okay. there's no criminal jurisdiction by the marine corps, but there was that administrative hook into the person and he ended up going before a board to determine whether or not he should remain in the marine corps. okay, so the nexus between you as a person and the marine corps
or the army, the navy, the air force, whatever, coast guard, whatever service you're in, is perpetual, as long as you're in it. doesn't matter whether you're on active duty or not. let me say a few things about the supreme court and the military. i think judge baker did a great job covering that. one of the quotes from one of those cases the supreme court had in the military, it's not the job of the courts to run the army and the navy, the military. that was a direct message to the courts to give great deference to decisions made by the military on military matters. and i can tell you from my experience that when you're talking to the department of justice about defending cases, there's always a big discussion about this is not such a good fact pattern here, how much deference are we going to get on this matter from the courts? because we know we're going to get something.
the department of defense knows it's going to get some. the question is, how much, and at times it's been quite extensive and the courts have been criticized for being too deferential. another thing i'll say about the supreme court, the supreme court case once where they had a military case and they were talking about how, well, you'd think they were normal civilians we'd do, a, but because they are military, we're going to do not "a," and they were trying to come up with an analogy. some other category, an american society of people that also would have a not "a" answer, and they stumbled upon it, criminals. so, i used to always when i taught classes would always say, you guys are really unique and privileged, right up there with the criminals as far as the supreme court goes. but it's just another indicator of the specialized society that is the military and the unique needs of the military.
as far as the current issue with free speech that's on the table today, i think all the panelists obviously agree that free speech, the first amendment does apply to military, but not to the same scope and extent that it does to a civilian. we talked about some differences, and the question that's posed by the professor and i'm sure being considered on the hill, in congress, and also within the department of defense is, what further criminal laws, if any, do we need to address these new fact patterns that may or may not be adequately covered by existing law? and so that analysis starts off with, what are the facts that we have in these individual cases, and sometimes as professor landingham poss itted, the stuff
is nonconsensual. sometimes it's a selfie taken by -- i think the most recent marine corps report said of all the pictures that the naval criminal investigative service has recovered, half of them were selfies that were voluntarily taken and sent to somebody else, so you look at the different fact patterns, that fact pattern, the nonconsensual fact pattern, the fact pattern where i take a selfie, i send it to you guys, and in my forwarding thing to you i say please don't distribute this any further, i'm only giving this to you, and the one fact pattern i don't, i just include the picture, not saying anything what you may or may not do with it. so you get the facts. you apply the facts to existing law. you look at the existing law. does it cover it or not? you find all the fact patterns that are not clearly covered and you say to yourself, should they be? if you come to the conclusion they should be covered, then you start messing around. now it's getting harder. this whole progression gets
harder the longer it goes. you're in the next to most hard part and that is should it be. what's the language? if it should be, what language do i use. so you start messing around with the language until you -- when you mess around with the language, what are you looking for? unintended consequences. you're looking for -- number one, to make sure you cover the problem. but beyond that, what can happen with this language i've come up with that i didn't intend to have happen so that the law ends up covering stuff you didn't want to have covered. so you start looking at unintended consequences. i can tell you from my experiences we are really good -- the department of defense people by and large are really good at identifying problems when they jump up and hit them in the head like professor vanlandingham talked about. they're really good at identifying a solution to that problem. what they're not so good at is figuring out what's wrong with that solution. so we sometimes end up being in
a cycle, you know, problem, fix, oops, problems with the fix, new fix, fix number two, oops, problems with that, and you keep trying to move forward. in business, that's the cycle of constant improvement. that's how you get better. you can't get to perfect. what's the old saying? perfect is the enemy of good enough. you want to take care of the problem the best you can and then move on. but you do need to spend time not just problem/solution but also is this the best solution we can come up with in the time we have. so, once you do that, then you have a law that you think solves a problem, a law that you think doesn't have too many unintended consequences and you think that is worth going forward. at that point my attitude is we need to remember about the fact freedom of speech happens to be in the first amendment. it's something that was important to the founding fathers and it's just as
important to a service member as it is to a civilian. so i ask myself any time i have these freedom of speech, freedom of religion, freedom of association issues, and we had a lot of them in the department when i was there, is how much do we really want to restrict that freedom? how important is the military need. now for me, the situation with their derogatory and demeaning text with words and the forwarding of nude photos or other -- that's pretty important to me, and to me, if you can come up with a solution to that, that is narrowly scoped to take care of that problem and it's not otherwise covered, i think it's worth considering. >> i think we should wrap up and see if we can take some questions. >> i told you we would drone on and on. >> i said 8 minutes, they said i only need 2. it's been about 12.
do you want to conclude? >> nope. good. >> why don't we take some questions from the floor. one question, you might pose specific hypotheticals. think about anything you might think about on the internet that a civilian might post or a military member might post and anything else and should that be crime i criminalized. i'll open it up to the floor about harassment on the internet and what laws we need to have. >> thanks for having this. i'm an active duty marine officer and student at american university washington college of law. i'm here today in my personal capacity alone. united states v wilcox for all the lawyers in the room, judge baker i know is very familiar with stands for the proposition that in order to be prodescribable in a military context, speech must present a reasonably direct and palpable connection with the military mission or military environment.
for purposes of this panel and the context of sexual harassment, that's the workplace connection. the wilcox case gives an example that does not meet this standard. there the service member posted racist speech online. perhaps though, the most important sentence in that case which was decided in 2008, is that the case had wound through the military justice system for 8 years. so the law stands for the proposition that transistors multiply at a rate of -- they double every two years. my back of the envelope calculation tells us that today's computers are 256 times as powerful as the one that wilcox used. my question is if wilcox's facts are not enough, what sort of facts should we look for to make sure that it is enough to be prescribable, and is the evolution of technology alone enough? >> interesting proposition here for judge baker since judge
baker was there at the court when they decided, but he was in the dissent. you have a second opportunity to swing at this one. >> i had a sneaking suspicion wilcox would come up. first let's put together your tool kit. your tool kit for addressing these issues starts always with the constitution itself and the text of the constitution and the bill of rights. second, in the military context you need to have parker v levy which i described the case briefly before. it's 417 u.s. 33 and your kit will conclude with u.s. v wilcox which you created was 66 military justice reporter 442. then you would want the text of article 134 and so on.
there are three types of first amendment cases that came before our court which tried to get at how does the first amendment apply in military context. and the first type of case was a -- i don't want to say one-off, but unusual circumstances. my first case on the court involved a threat to the life of the president of the united states by a military inmate, someone who was in detention, and therefore was not able to, in fact, carry out the threat if he intended it at all at that particular moment. and there's a whole doctrine of first amendment law on threats and whether a threat is a true threat or not, and it happens that threats to the president of the united states for obvious reasons perhaps and they're outlined in the opinions, are dealt with in a manner different than other threats. but the basic issue there is
when does a first amendment right to make threats translate into a true threat that is criminal by nature. the vast majority of the first amendment issues, i'm sorry to say that came up at our court -- not sorry to uphold the constitution but sorry for the context which was in light of ashcroft -- the ashcroft case and the supreme court's interpretation of the child pornography protection act, when is the possession of pictures of children either pornography, erot ka or pictures of children, when is that first amendment protected as it might be in the civilian context pursuant to ashcroft and when is it criminal in the military context, notwithstanding the fact that civilian courts, in an attempt to apply ashcroft, had
determined that it was constitutionally protected for civilians to view or possess. and there are many cases on our court -- from our court addressing that issue, and creating a habit, i tended to be in the dissent. in wilcox is the third type of case which is this new to courts, not new to the world intersection of the first amendment to the internet and the seeming things that a person might do on the internet and not in person. in wilcox it involved an army paratrooper who was posting a series of facts. one reason the case took a long time, not in our court but in general, was because he was charged with a number of
offenses, and when the day was done there was only one offense that came before our court and that was an offense for service discrediting conduct under article 134 for posting and various messages in chat rooms supporting white supremacy and various lines of white supremacy aryan nation type literature and propaganda. so the question presented was, was there -- was the service discrediting. now, here's point one. most of the first amendment cases that have gotten -- at our court that have really explored the delta, the nexus between the first amendment and the military, are good order and discipline cases. so it was easy to see in parker
v levy or at least easy to articulate in parker v levy why inciting people not to deploy to vietnam would undermine good order and discipline. it is sometimes, not always, sometimes harder to see how posting something on the internet would be service discrediting, and it's not just service discrediting. it is would have a tendency to be service discrediting. you don't actually have to prove that it was service discrediting, and in fact, part of the thing is that when you post something on the internet, it's probably -- if it is discrediting, it probably isn't military policy, right? in fact, he was charged -- wilcox was charged with service discrediting conduct for posting aryan nation propaganda, and i think most people would assume that that was not army policy, right? what was discrediting was that
it was associated with the army. when he posted it he said i'm an army paratrooper, i'm at ft. bragg. so the risk was that the members of the public would see that and they would go -- this is the argument -- they would go, my goodness, the army is full of white supremacists, or i don't want my son or daughter to go in the army, there are people like that in it, skull head. the issue on our court was then was this protected speech, and the majority -- by the way, you're being very polite. the case was 4-1. and i'm not very good at math but i know when i'm an army of one. one thing i do believe is judges speak with their opinions and not with their speeches. and so what i don't like to do -- i mean i maybe like to do it but what i don't think is fair game is if you want to know
what my views were in wilcox, you should read wilcox. what i don't get to do then is go around characterizing my position as this glowing wonderful thing and miskaf mischaracterizing the majority's position. it has problems of its own without my mischaracterization. but here was the issue. the majority view was -- and it's fair to say there are two questions. was the evidence legally sufficient to prove tendency to create service discredit. second, if there was evidence that would be legally sufficient to demonstrate that element of the offense, was it otherwise protected by the first amendment? and the split between the majority and the dissent was on first the majority applied the good order and discipline line of cases, and those were the
cases that were available which said, drawing back to brandonburg and the supreme court dennis and shank line of cases that there had to be a direct and palpable nexus between the speech and the harm that was -- people were trying to prevent, right, the harm to good order and discipline and so on. and the majority skcould not fi the direct and palpable link between the postings that were clearly racist, aryan, all the things that are reprehensible about that, but also clearly protected in civilian society, right? this is your skokie, illinois march and all that kind of thing. this is unpopular political speech but without question first amendment protected political speech in civilian context. so the question was, is there sufficiently direct and palpable link to a military harm.
and they said no. and it really hinged on whether you found that link from the majority standpoint, whether you found that link in the person's -- in wilcox holding himself out as an army paratrooper. i think part of the difference between the defense -- i mean the dissent and the majority was the majority said he purported to be an army paratrooper, and the dissent was he didn't purport to be, he was. and the reason the case was before our court at all was because a person in the public saw his postings and said, huh, that guy's an army guy at ft. bragg and he's a paratrooper, i better let the army know about these postings. so that seemed to suggest to me that there was a nexus right there. so i went through -- and i can
do a dramatic reading if you would like -- >> i think we can lead have it the -- >> or we can stipulate by a show of hands that i was correct. i see everybody's in agreement. no. i would encourage you -- >> we have another judge from the court. >> we're not taking questions from him. >> no, what i would do is i would encourage you to read the opinion, the full opinion, read from the back or the front. it's what you have to work with at this point. and i do think -- and one reason you write the dissent, there's different kinds of dissent, but one reason you write the dissent is to clarify with granularity what the difference is, right? if i just said, eh, okay, or if i said, i don't agree with them, i'd affirm the conviction, that's not going to help you focus on what the granular
distinction is. and the granular distinction was -- and i said we should apply strict scrutiny. i wanted to get away from clear and present danger because you don't have clear and present danger and never will with something that has a tendency to discredit. you can't get there because it's not clear and present. it's just merely a tendency to do that. so how else would you apply the first amendment? you would look to the compelling interest, the strict scrutiny compelling interest test. and i found a compelling interest in the fact that the army had an interest in -- obviously in discouraging and preventing racist gangs from being in the army, right. that clearly was a problem and it is a problem. two, it would discourage recruitme
recruitment. and then third was public support for the military in time of conflict. i said those are -- i found them to be compelling interest. you don't need to. that's part of the analysis. and i said would it be narrowly tailored. how would you narrowly apply it and narrowly tailor this and i said that would come from case law and from the fact that this was not a case where you with punishing someone who was a racist. this was a case where you were punishing someone who held themselves out as an army paratrooper racist at ft. bragg. >> i think we should allow professor vanlandingham. we only have until about 1:15 so we should answer quickly and maybe get to another question before we run out of time. >> it was a brilliant dissent. please read it. it's interesting, judge baker, because it just highlights the difficulties with 134 analysis that you might not necessarily
have with other clear provisions of the ucmj such as article 93, maltreatment, article 88, contempt with us words against the president. there are still first amendment concerns there but the offenses are different. what is the harm of the offense, what is the harm of the conduct that we're trying to criminalize and therefore deter, right, and prevent through punishment. and the harm for certain types of words like sexual harassment or certain types of sharing without the consent of the person, whether or not they took it consent wasually or not, sha an otherwise private photo with others, the harm is that invasion of privacy, that invasion of privacy in the military is amplified when it's one service member against another. it's amplified because of the
dill tear yus effects of trust. the bonds of trust on the military is fundamental to military effectiveness. so that leads me back to, is it protected speech anyway? are those kind of things such as nonconsensual sharing of on otherwise private photo protected speech, because if it's not protected speech according to the wilcox majority anyway, you don't have to go down through this rabbit hole. i would argue that's where we are in the civilian world and of course professor mags can speak brilliantly to this, whether or not there's a first amendment, the first amendment idea of free speech, the interest in publishing someone else's or distributing and sharing someone else's private naked or partially naked photo with others, whether that interest and value of sharing it outweighs the individual's privacy interest. that's the fundamental interest. i would argue that these laws really fall within -- the current laws in this category of
speech, this has been less protected because of the purely private significance privacy issues that are greatly significant. i could point to cases such as brett v raises a whole other area of rich discussion i wish we had time for. >> we have another question from the floor? general frank? >> go ahead. >> i wanted to say three quick things and you have caught on i'm a microphone hog and i'm used to asking questions. but three quick comments. one, it's clear that whatever the case is, and wilcox was a case involving what is traditionally viewed as political speech and raised
therefore specialized sensitivities, it's incumbent on those who are debating these issues to be clear what the compelling interests are. and in most cases, either people haven't read the case law or they don't have the evidence but put the evidence on that shows the compelling interest and be clear what it is. whoever side of this you're on. two -- two, i have lost my train of thought. oh, two, judges and courts have a special responsibility, a heightened responsibility to uphold and defend the constitution. it's the same mission as members of the military, judges do more of the upholding than the defending part one hopes but one thing i like about wilcox and the wilcox majority since i had my fun as a dissenter is that it was all about what courts do and do best which is uphold the
constitution. and courts will protect the first amendment because who else will if not courts? right? you're basically protecting the right of people to be racists or hold unpopular views. so, one should never frown on a court looking at the first amendment issues with care. it means you should speak to them. third, there was a time when most of the judges, federal judges in the united states, had served in the military. 75% of the judges in the '50s and '60s -- in the '50s had served in the military. world war i and world war ii. the brown court, a majority of the members of the brown court, a majority of the members of the brown court were military veterans. it is only today that you have a federal judiciary that's largely
comprised of people who have never served in the military. there are lots of different ways to be diverse and lots of thing that is go into a federal bench. that gives it strength and diversity. but one of them, i believe, is military service. and in is an area where having military service is particularly important to understand the intersection between the first amendment and military life in society. so, there's nothing i can do about it but i would point that out. i think that's a significant thing and of course some of our greatest judges and justices have been veterans and have been informed by that you are service in the military. including four of the eight great civil rights judges, frank johnson, john minor wisdom, jack arrives and schedulely wright. and so don't -- that's just something i couldn't leave in my bag. >> we have time for one more question.
>> oh come on. there we go. >> thank you very much. i'm here in my private capacity today, as well. we talked about prevention and the duty on leadership and then there's also perhaps attention with the unlawful command influence. and i wonder, in terms of prevention, what obligation do the leaders have to engage in that. and why is that not part of a greater part of our discussion when we look at fashioning laws after things have happened when this just keeps on going and going and going? thank you. >> frank, since you didn't get an opportunity on that last question, maybe this is appropriate for you. >> i think your point about prevention dovtails with what judge baker when he talked about wished we didn't have to talk about court cases because we need more prevention.
it's also one of the major emphasis of the commandant when a recent problem for the marine corps broke out and forming task forces and rewriting the policy, required everybody in the marine corps to sign an entry in the service record book that they have had it explained to them and they understand it so when they screw up as inevitably somebody will they can't get out by saying, no one told me because it will be right there. they were told. and the policy was clearly set forth for them. so i think there's been a lot of emphasis on that. in the whole sexual assault arena there's increasing efforts to train people, teach people, educate people, inform people and the results are mixed. so, i guess my attitude is,
prevention is essential. we must always have good training. we have to vary the training. we have to look for better ways to do the training. as judge baker said, you have to remind your people. last summer on an advisory committee i was on we traveled around and we kept running into commanders who said they worried about training overload and people would show up for sexual assault training and the third year in a row they'd gone or three times a year and they didn't pay any attention. walked in, sat in the chair and got nothing. if that's the training, that is not effective training so you haven't had training. they may have sat there for an hour and checked a box but you have not had training and why you have to keep looking for better and more direct connection kinds of training to
make it meaningful. and then you're still going to have people screw up. so i think that's my attitude on that. one thing let me just say before we wrap up on the wilcox case and all that, remember, that's a criminal case, right? looking at a criminal side of things. there's also the administrative side. my experience on racists and people who are part of white aryan supreme sy and whatever, overwhelmingly, like my experience 100% of the cases that came out like that, were handled administratively. that's -- i mean, that attitude was we don't want that person in the marine corps. how do we separate them and get rid of the person in if the person was, indeed, a racist. and so, there's actually a d.o.d. directive of a regulation that talks about dissident and protest activity and some length of being a member of a gang or racist group and what you can and can't do. which talk about first amendment, there's a first amendment issue. >> you have a short thing? we're close on time here. >> short but to the point. so training doesn't have -- prevention is vital. training doesn't have to be a formal situation. it's every action and inaction. as general martin dempsey said, he views that some of the sexual ma raszment, assault are directly linked to a culture of intolerance of women in the military and the fact that once women are in all combat positions because of the merit, some of this culture of intolerance will be alleviated. thank you. >> well, at this point we have to conclude. but looking at the table, not
only do i see three brilliant and educated speakers, but i see three speakers who have cans and bottles and no glasses. so i wish to award each of you -- >> nicely. >> a glass. >> thank you. >> next time you come you will be able to pour your drinks rather than out of the bottle. >> thank you. >> so thank you again to the military law society and to the subcommittee and thank you to our speakers. let's give our speakers a big round of applause. [ applause ] thank you very much.
former president barack obama talks about political activism and civic engage ment today at the university of chicago. this was his first public vent since leaving office. he moderated the panel on voting participation and how to get young people involved. you can see that conversation tonight at 8:00 eastern on c-span. the white house correspondents' dinner is saturday. president trump will not attend this year making him first president in more than three decades to skip this annual event. this year's entertainer will be hasan manage. it will start at 9:30 eastern. sunday, april 30th, join
washington journal at 9:00 a.m. eastern for the annual cram for the scam to help students prepare for the advance placement u.s. government and politics exam. high school government teachers from high school in lincolnscheyer, illinois, will take your coals and review sample questions you might find on this year's exam. >> relax. calm down. there's going to be questions on the multiple choice you don't know. don't blame your teacher. don't try to withdraw your shoutout. there's going to be questions that you miss. we all do. do your best. and if you don't know the answer, make it a good guess. don't leave it blank. on an frq, keep writing. remember, think less, ink more. but if you blank on something like i blanked on blanket primaries, go back to what you do know. use those context clues. you studied hard. you worked hard for the exams. the teachers really prepped you well. so use the context clues.
take a deep breath and problem solve. >> the annual cram for the exam is always fun and informative. join us sunday, april 30th, at 9:00 a.m. on c-span. what lessons have been learned from the housing and financial crisis of 2007-2009? and what have sidies done since then to prepare for future potential severe market fluctuations? the urban institute and lincoln institute try to answer those questions in this 15-minute more yum on housing and finance policies and impact on u.s. cities. >> it's