45 M.J. 389
(Cite
as: 45 M.J. 389)
UNITED STATES, Appellee
v.
Dwayne K. BROWN, Specialist U.S. Army, Appellant.
No. 95‑0376.
Crim.App. No. 9100880.
U.S. Court
of Appeals for the Armed Forces.
Argued
March 25, 1996.
Decided
Sept. 30, 1996.
Accused
was found guilty by general court‑martial, J.W. Hewitt, J., of conspiring
to organize strike, unlawfully organizing and attempting to organize strike,
and soliciting soldiers to strike. The
United States Army Court of Criminal Appeals, 41 M.J. 504, affirmed. Review was granted. The United States Court of Appeals for the
Armed Forces, Crawford, J., held that:
(1) federal antiunion statute did not violate First Amendment, either
facially or as applied, and (2) there was no unlawful command influence.
Affirmed.
Cox, C.J.,
filed opinion concurring in the result.
Gierke,
J., filed opinion concurring in part and in the result.
Sullivan,
J., filed dissenting opinion.
[1]
MILITARY JUSTICE k550
258Ak550
In context of Sixth Amendment's guaranty of right
to be informed of nature and cause of accusation, fairness requires appropriate
notice that act would be criminal. (Per
Crawford, J., with one Judge concurring and one Judge and Chief Judge
concurring in result.) U.S.C.A. Const.Amend. 6.
[2]
CONSTITUTIONAL LAW k251.4
92k251.4
Due Process Clause of Fifth Amendment demands that
statute not be so vague or overbroad that one cannot determine its meaning,
especially when viewed in light of First Amendment protections. (Per Crawford, J., with one Judge concurring
and one Judge and Chief Judge concurring in result.) U.S.C.A. Const.Amends. 1,
5.
[2]
MILITARY JUSTICE k503
258Ak503
Due Process Clause of Fifth Amendment demands that
statute not be so vague or overbroad that one cannot determine its meaning,
especially when viewed in light of First Amendment protections. (Per Crawford, J., with one Judge concurring
and one Judge and Chief Judge concurring in result.) U.S.C.A. Const.Amends. 1,
5.
[3]
MILITARY JUSTICE k503
258Ak503
"Void for vagueness" means that criminal
responsibility should not attach where one could not reasonably understand that
his contemplated conduct is proscribed.
(Per Crawford, J., with one Judge concurring and one Judge and Chief
Judge concurring in result.) U.S.C.A. Const.Amends. 1, 5, 6.
See publication Words and Phrases for other
judicial constructions and definitions.
[4]
CONSTITUTIONAL LAW k278.6(2)
92k278.6(2)
If accused had been charged with conduct
prejudicial to good order and discipline for organizing battalion‑wide
meetings to discuss living conditions, long hours, and inadequate time off, and
then arranging for transportation home, such allegation would not have been
vague or violation of due process clause of Fifth Amendment, and defendant's
conduct would have been punishable as such.
(Per Crawford, J., with one Judge concurring and one Judge and Chief
Judge concurring in result.) U.S.C.A. Const.Amend. 5; UCMJ, Art. 134, 10 U.S.C.A. § 934.
[4]
MILITARY JUSTICE k760
258Ak760
If accused had been charged with conduct
prejudicial to good order and discipline for organizing battalion‑wide
meetings to discuss living conditions, long hours, and inadequate time off, and
then arranging for transportation home, such allegation would not have been
vague or violation of due process clause of Fifth Amendment, and defendant's
conduct would have been punishable as such.
(Per Crawford, J., with one Judge concurring and one Judge and Chief
Judge concurring in result.) U.S.C.A. Const.Amend. 5; UCMJ, Art. 134, 10 U.S.C.A. § 934.
[5]
MILITARY JUSTICE k760
258Ak760
Alternative ground for upholding accused's
conviction for violation of statute prohibiting organization of military
unions, which was challenged on First Amendment grounds, would have been to
affirm conviction for closely related offense of conduct prejudicial to good
order and discipline. (Per Crawford,
J., with one Judge concurring and one Judge and Chief Judge concurring in
result.) U.S.C.A. Const.Amend. 1; UCMJ,
Art. 134, 10 U.S.C.A. § 934; 10 U.S.C.A. § 976.
[5]
MILITARY JUSTICE k790
258Ak790
Alternative ground for upholding accused's
conviction for violation of statute prohibiting organization of military
unions, which was challenged on First Amendment grounds, would have been to
affirm conviction for closely related offense of conduct prejudicial to good
order and discipline. (Per Crawford,
J., with one Judge concurring and one Judge and Chief Judge concurring in
result.) U.S.C.A. Const.Amend. 1; UCMJ,
Art. 134, 10 U.S.C.A. § 934; 10 U.S.C.A. § 976.
[6]
MILITARY JUSTICE k533
258Ak533
In civilian community, there are categories of
speech not protected by First Amendment:
obscenity, fighting words, and dangerous speech. (Per Crawford, J., with one Judge concurring
and one Judge and Chief Judge concurring in result.) U.S.C.A. Const.Amend. 1.
[7]
MILITARY JUSTICE k533
258Ak533
"Fighting words" unprotected by First
Amendment are those which by their very utterance inflict injury or intend to
incite immediate breach of peace; in order to be "fighting words,"
words must contain direct personal insult. (Per Crawford, J., with one Judge
concurring and one Judge and Chief Judge concurring in result.) U.S.C.A.
Const.Amend. 1.
See publication Words and Phrases for other
judicial constructions and definitions.
[8]
MILITARY JUSTICE k533
258Ak533
Test for dangerous speech in civilian community is
whether speech presents "clear and
present danger"; question is
whether words are used in such circumstances and are of such nature as to
create clear and present danger that they will bring about substantive evils
that Congress has right to prevent; it
is question of proximity and degree. (Per Crawford, J., with one Judge
concurring and one Judge and Chief Judge concurring in result.) U.S.C.A. Const.Amend. 1.
See publication Words and Phrases for other
judicial constructions and definitions.
[9]
MILITARY JUSTICE k533
258Ak533
In military, test for whether First Amendment
protects speech is whether speech interferes with or prevents orderly
accomplishment of mission or presents clear danger to loyalty, discipline,
mission, or morale of troops, which is lower standard than clear and present
danger test for speech in civilian community, and does not require intent to
incite or imminent danger. (Per
Crawford, J., with one Judge concurring and one Judge and Chief Judge
concurring in result.) U.S.C.A. Const.Amend. 1.
[10]
MILITARY JUSTICE k533
258Ak533
Both military service members and civilians have
right to criticize government and to express ideas to influence body
politic. (Per Crawford, J., with one
Judge concurring and one Judge and Chief Judge concurring in result.) U.S.C.A.
Const.Amend. 1.
[11]
MILITARY JUSTICE k533
258Ak533
Right of free speech is not absolute. (Per Crawford, J., with one Judge concurring
and one Judge and Chief Judge concurring in result.) U.S.C.A. Const.Amend. 1.
[12]
MILITARY JUSTICE k533
258Ak533
There is difference between free speech rights of
civilian and rights of service member;
fundamental necessity for obedience, and consequent necessity for
imposition of discipline, may render permissible within military that which
would be constitutionally impermissible outside it. (Per Crawford, J., with one Judge concurring and one Judge and
Chief Judge concurring in result.) U.S.C.A. Const.Amend. 1.
[13]
MILITARY JUSTICE k533
258Ak533
To ensure adequate discussion of competing
interests between security and democracy, service members as well as public in
general have right to voice their views so long as it does not impact on
discipline, morale, esprit de corps, and civilian supremacy. (Per Crawford, J., with one Judge concurring
and one Judge and Chief Judge concurring in result.) U.S.C.A. Const.Amend. 1.
[14]
MILITARY JUSTICE k533
258Ak533
First Amendment rights of civilians and members of
Armed Forces are not necessarily coextensive, but, in speech cases, national
reluctance to inhibit free expression dictates that connection between
statements or publications involved and their effect on military discipline be
closely examined. (Per Crawford, J.,
with one Judge concurring and one Judge and Chief Judge concurring in result.)
U.S.C.A. Const.Amend. 1.
[15]
MILITARY JUSTICE k533
258Ak533
Weighing of First Amendment considerations within
military is such that right of free speech in armed services is not unlimited
and must be brought into balance with paramount consideration of providing
effective fighting force for defense of country. (Per Crawford, J., with one Judge concurring and one Judge and
Chief Judge concurring in result.) U.S.C.A. Const.Amend. 1.
[16]
MILITARY JUSTICE k533
258Ak533
Military may restrict soldier's right to free
speech in peace time because speech may undermine effectiveness of response to
command. (Per Crawford, J., with one
Judge concurring and one Judge and Chief Judge concurring in result.) U.S.C.A.
Const.Amend. 1.
[17]
MILITARY JUSTICE k533
258Ak533
Courts will not overturn conviction on First
Amendment grounds unless it is clearly apparent that, in face of First
Amendment claim, military lacks legitimate interest in proscribing accused's
conduct. (Per Crawford, J., with one
Judge concurring and one Judge and Chief Judge concurring in result.) U.S.C.A.
Const.Amend. 1.
[18]
MILITARY JUSTICE k533
258Ak533
Although military must be subordinate to its
civilian superiors, that does not mean that service members may not express
their views, though they do not have absolute right to express their
views. (Per Crawford, J., with one
Judge concurring and one Judge and Chief Judge concurring in result.) U.S.C.A.
Const.Amend. 1.
[19]
MILITARY JUSTICE k533
258Ak533
Right of public discussion must be tempered in
military setting based on mission of military, need for obedience of orders,
and civilian supremacy. (Per Crawford, J., with one Judge concurring and one
Judge and Chief Judge concurring in result.) U.S.C.A. Const.Amend. 1.
[20]
MILITARY JUSTICE k694
258Ak694
Whether prosecution of service members for
disrespect toward officers and noncommissioned officers violates free speech
requires balancing of mission of military, when, where and how alleged incident
took place, and whether there are practical outlets to reinforce democratic
values; corollary is that service
members do not have absolute right to freedom of speech and freedom of
association in military. (Per Crawford,
J., with one Judge concurring and one Judge and Chief Judge concurring in
result.) U.S.C.A. Const.Amend. 1; UCMJ,
Arts. 89, 91, 10 U.S.C.A. §§ 889, 891.
[21]
MILITARY JUSTICE k790
258Ak790
Federal antiunion statute, under which accused was
convicted of organizing and attempting to organize strike, and soliciting
soldiers to strike, was not fatally overbroad in violation of First Amendment,
either facially or as applied;
accused's speech, urging service members in his unit to abandon their duty
and return home, even if treated as political speech, was not protected,
particularly as accused had many outlets for his complaints. (Per Crawford, J., with one Judge concurring
and one Judge and Chief Judge concurring in result.) U.S.C.A. Const.Amend.
1; 10 U.S.C.A. § 976(c)(3).
[22] MILITARY
JUSTICE k526
258Ak526
There was no unlawful command influence limiting
discretion of Brigadier General in general court‑martial for conspiracy
to organize strike, unlawfully organizing and attempting to organize strike,
and soliciting others to participate in strike; Brigadier General was not commander who had been directly
involved or personally embarrassed by incidents in question, he was advised by
assigned trial counsel, and he denied that any persons had attempted to
influence his disposition decision improperly.
[23]
MILITARY JUSTICE k1414.1
258Ak1414.1
Failure to raise at trial issue of command
influence as to accusatorial process waived issue.
*391 For
Appellant: Captain Matthew A. Myers
(argued); Lieutenant Colonel Michael L.
Walters (on brief).
For
Appellee: Captain John W. O'Brien
(argued); Colonel John M. Smith and
Lieutenant Colonel Eva M. Novak (on brief).
Opinion
CRAWFORD,
Judge:
Contrary
to his pleas, appellant, a member of the Third Battalion, 156th Infantry
Regiment (Mecha nized), *392 was
convicted of conspiracy to organize a strike, "organiz[ing] and
attempt[ing] to organize" a strike, and soliciting soldiers to strike in
violation of Articles 81 and 134, Uniform Code of Military Justice, 10 USC §§
881 and 934, respectively. The
convening authority approved the sentence of a dishonorable discharge,
confinement for 1 year, total forfeitures, and reduction to the lowest enlisted
grade. The Court of Criminal Appeals
affirmed the findings and sentence. 41
MJ 504 (1994). We granted review of the following issues:
I
WHETHER THE FEDERAL ANTI‑UNION STATUTE,
TITLE 10, UNITED STATES CODE, SECTION 976, IS FATALLY OVERBROAD IN VIOLATION OF
THE FIRST AMENDMENT BOTH FACIALLY AND AS APPLIED TO APPELLANT.
II
WHETHER THE FINDINGS AND SENTENCE MUST BE SET
ASIDE AND THE CHARGES DISMISSED BECAUSE THE ATMOSPHERE OF UNLAWFUL COMMAND
INFLUENCE IN THIS CASE EFFECTIVELY PREVENTED BG SOLOMON FROM EXERCISING
UNFETTERED AND INDEPENDENT DISCRETION IN DISPOSING OF APPELLANT'S CASE.
We decide
both issues against appellant.
FACTS‑‑ISSUE I
In
November 1990, appellant was a member of the Louisiana National Guard which was
mobilized for Desert Shield/Desert Storm and deployed to Fort Hood, Texas.
In January
1991, the Iraqi leader Sadam Hussein was notorious for threatening that his
forces would use nuclear, chemical, and biological warheads, and was predicting
that much blood would be shed by theAllies.
See, e.g., Rich Atkinson and Barton Gehlman, Iraq Trying to Shelter Jets
in Iran, U.S. Says, Wash. Post, Jan. 29, 1991, at A4; Hussein warns Iraq may employ 'equitable' arms, Baltimore Sun,
Jan. 29, 1991, at A1; Peter Honey,
Shift to ground war likely to prompt Iraqi use of chemical arms, Baltimore Sun,
Jan. 29, 1991, at A1.
On
February 3, 1991, after the air war had started, appellant met in the barracks
with several other soldiers. They
discussed their concerns and organized a battalion‑wide meeting on
February 5 to consider their complaints concerning living conditions, long
hours, inadequate time off, pay problems, and perceived poor leadership.
Appellant
did not attend the battalion‑wide meeting because of guard duty. He subsequently joined the group of soldiers
from the meeting and arranged for charter bus transportation from Fort Hood to
back home. They also agreed that they
would alert the media and publicize their complaints. There had been two previous meetings by these soldiers. Their plans to go home were interrupted when
Brigade Commander Colonel Catalano decided to meet with the soldiers. He stood on top of a Bradley Fighting
Vehicle and addressed the soldiers about their concerns. He urged them not to go home and stressed
that by staying and training, they would have their best chance to survive in
combat. When the bus company was told
about what was happening, they canceled the charter bus that was to have taken
the soldiers home.
After he
addressed the soldiers, Colonel Catalano was informed that a number of them
were still unhappy. After the
discussion with Colonel Catalano, appellant arranged for another meeting with
approximately 40 soldiers. At that
time, he made arrangements for another soldier to drive a truck to take the
soldiers to the bus the next morning, not knowing that the bus trip had been
canceled. He then left the meeting to
inquire why soldiers from other companies had not attended.
As a
result of his actions, appellant was charged with a violation of 10 USC § 976,
which provides:
(c) It shall be unlawful for any person‑‑
* * *
(3) to organize or attempt to organize, or
participate in, any strike, picketing,
*393 march, demonstration, or other similar form of concerted action
involving members of the armed forces that is directed against the Government
of the United States and that is intended to induce any civilian officer or
employee, or any member of the armed forces, to‑‑
* * *
(C) make any change with respect to the terms or
conditions of service in the armed forces of individual members of the armed
forces; ...
* * *
(g) Nothing in the section will limit the right of
any member of the armed forces‑‑
(1) to join or maintain membership in any
organization or association not constituting a "military labor
organization" ...;
(2) to present complaints or grievances concerning
the terms or conditions of the service of such member in the armed forces in
accordance with established military procedures;
(3) to seek or receive information or counseling
from any source;
(4) to be represented by counsel in any legal or
quasi‑legal proceeding, in accordance with applicable laws and
regulations;
(5) to petition Congress for redress of
grievances; or
(6) to take such other administrative action to
seek such administrative or judicial relief, as is authorized by applicable
laws and regulations.
The
defense challenges the statute as being vague and overly broad and, as applied,
interfering with appellant's First Amendment freedom of association and speech.
The Court
of Criminal Appeals found that the statute, as applied in this case, is a
"reasonable effort to limit impermissible bargaining activities between
soldiers and their commanders." 41
MJ at 509. The court noted that
appellant was not charged with anything related to the content of the
meetings. Id. The court also found it "obvious" from the face of the
statute that its goal was to prohibit traditional labor relations actions
within the military. Id. at 509‑10. The court further found that, although there
may be some imprecision in the sweep of the statute, "there is no
possibility that the appellant was surprised to learn" that it was against
the law to conspire to organize a walk out or attempt to see the walk out
through to completion. Id. at 510.
The court
then held that, even if the statute could be applied to constitutionally protected
activity, courts have traditionally construed statutes to avoid an overbroad
reach. 41 MJ at 510.
DISCUSSION‑‑ISSUE I
Congress
has been vested with the responsibility under Article I, section 8, clause 14,
of the Constitution for establishing rules for the regulation of the land and
naval forces. The Supreme Court has
recognized that Congress, in performing its role in making these regulations,
is entitled to deference in its exercise of the "plenary control over
rights, duties, and responsibilities in the framework of the Military
Establishment, including regulations, procedures, and remedies related to
military discipline." Chappell v. Wallace, 462 U.S. 296, 301, 103 S.Ct.
2362, 2366, 76 L.Ed.2d 586 (1983). This
Court has been sensitive to performing its obligation and ensuring First and
Sixth Amendment rights of servicemembers.
But we are mindful that
[j]udges are not given the task of running the
Army.... The military constitutes a
specialized community governed by a separate discipline from that of the
civilian. Orderly government requires
that the judiciary be as scrupulous not to interfere with legitimate Army
matters as the Army must be scrupulous not to intervene in judicial matters.
Orloff v.
Willoughby, 345 U.S. 83, 93‑94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953).
In
Chappell v. Wallace, supra at 302, 103 S.Ct. at 2366, citing Gilligan v.
Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973), the Supreme
Court commented: "[I]t is
difficult to conceive of an area of governmental activity in which the courts
have less competence. The complex,
subtle, and professional decisions as to the ... control *394 of a military force are essentially professional military
judgments."
Sixth Amendment‑‑Notice
[1][2] The
Sixth Amendment to the Constitution provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right ... to be informed of the
nature and cause of the accusation[.]"
Fairness requires appropriate notice that the act would be
criminal. The Due Process Clause of the
Fifth Amendment also demands that a statute not be so vague or overbroad that
one cannot determine its meaning. See,
e.g., Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct.
618, 83 L.Ed. 888 (1939); Parker v.
Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); United States v. Boyett, 42 M.J. 150 (1995);
United States v. Dear, 40 MJ 196 (CMA 1994).
This is especially true when viewed in light of First Amendment protections.
Similar
charges of vagueness and overbreadth were made in Parker v. Levy, supra
(implicit in Levy that Article 133, UCMJ, 10 USC § 933, was not
constitutionally infirm because of no intent requirement). There, Captain Howard Levy, a physician
training Special Forces aide personnel, had made a number of anti‑war
statements to patients and enlisted personnel while on duty. Additionally, he had urged servicemembers to
refuse to fight in Vietnam. He was
charged, inter alia, with conduct unbecoming an officer and conduct prejudicial
to good order and discipline. The Court
of Appeals held that Articles 133 and 134 as applied were
unconstitutional. Levy v. Parker, 478 F.2d
772, 789‑90 (3d Cir.1973). The
opinion below suggested that the Articles were overly broad. Id. at 794‑95.
[3] The
Supreme Court recognized that, in examining a statute under "the vagueness doctrine," there is
a requirement of "more precision" when the case involves
"regulation of expression."
417 U.S. at 756, 94 S.Ct. at 2561.
"Void for vagueness simply means that criminal responsibility
should not attach where one could not reasonably understand that his
contemplated conduct is proscribed."
Id. at 757, 94 S.Ct. at 2562, citing United States v. Harriss, 347 U.S.
612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).
Another
case involving First Amendment rights and overbreadth is Avrech v. Secretary of
the Navy, 477 F.2d 1237, 1240 (D.C.Cir.1973), rev'd, 418 U.S. 676, 94 S.Ct.
3039, 41 L.Ed.2d 1033 (1974). While in
Vietnam, Avrech typed up a stencil critical of America's involvement in the
war. He requested permission to
duplicate his stencil, but his immediate supervisor denied him permission and
turned the stencil over to authorities.
He was convicted by court‑martial of attempting to publish his
statement, which was "disloyal to the United States," with the
intention of promoting "disloyalty and disaffection among the
troops." 477 F.2d at 1239. A Federal District Court rejected his
contentions that his conviction was unconstitutional and that Article 134 was
overbroad in violation of the First Amendment and vague in violation of the
Fifth Amendment.
The Court
of Appeals reversed the District Court decision. Retired Supreme Court Justice Tom Clark found it unnecessary to
address the overbreadth claim but said that the statute, as applied, was
vague. Justice Clark said that the
statute was void for vagueness if its wording was so indefinite that a
reasonable person would have to guess as to its meaning. Then, applying civilian specificity
standards, he found Article 134 void for vagueness. He rejected the government argument that the military cases
furnished a saving but narrow construction of Article 134's scope. 477 F.2d at 1241‑44.
The
Government then sought review in the United States Supreme Court. Over the dissents of three Justices, the
Court issued a per curiam decision reversing the Court of Appeals, citing
Parker v. Levy, supra. See Avrech, 418
U.S. at 678, 94 S.Ct. at 3040.
[4][5]
Like Levy and Avrech, there should be little doubt that appellant's organizing
battalion‑wide meetings to discuss living conditions, long hours, and
inadequate time off, then arranging for transportation home would be
improper. Cf. United States v. Howe, 17
USCMA 165, 37 CMR 429 (1967) (upheld 2LT Howe's conviction for conduct *395 unbecoming an officer by
participating in civilian clothes in a public demonstration off post carrying a
sign urging "end Johnson's Facist agression [sic] in Vietnam");
Culver v. Secretary of the Air Force, 559 F.2d 622, 630 (D.C.Cir.1977) (held
service regulation did not violate First Amendment in prohibiting Air Force
member from participating in a demonstration in London). In fact, had appellant not been charged
under Article 134 with violating 10 USC § 976, but just charged with conduct
that was prejudicial to good order and discipline, there would be no question
that such an allegation would not be vague or a violation of the Due Process
Clause of the Fifth Amendment. Thus, we
agree with Chief Judge Cox's separate opinion.
An alternative ground for upholding appellant's conviction would be to
affirm the conviction for an offense "closely related" to the offense
charged. See, e.g. United States v.
Hoskins, 29 MJ 402, 405 (CMA 1990);
United States v. Epps, 25 MJ 319, 323 (CMA 1987).
While
there might be a few situations in which the statute might be invalidly
applied, there are a number of circumstances where it could "be validly
applied" without suffering from "overbreadth" which is so
"substantial" that it interferes with First Amendment rights. Levy, 417 U.S. at 760, 94 S.Ct. at 2563.
First Amendment‑‑Freedom of Speech and
Association
[6] In the
civilian community, there are certain categories of speech not protected by the
First Amendment: obscenity, Roth v.
United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); fighting words, Cohen v. California, 403
U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971);
and dangerous speech, Chaplinsky v. New Hampshire, 315 U.S. 568, 62
S.Ct. 766, 86 L.Ed. 1031 (1942).
[7]
"Fighting words" are "those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace." Chaplinsky, supra at 572, 62 S.Ct. at
769. In order to be fighting words, the
words must constitute a direct personal insult. Cohen v. California, supra.
Are there fighting words left?
In Buffkins v. City of Omaha, Douglas County, Nebraska, 922 F.2d 465,
472 (8th Cir.1990), the Court held that calling a police officer an
"asshole" was not considered fighting words.
[8] The
test for dangerous speech in the civilian community is whether speech presents
a clear and present danger. "The
question in every case is whether the words used 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." Schenck v. United States,
249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919).
In Brandenburg
v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969), the
Court defined "clear and present danger" as extending to incidents
"directed to inciting or producing imminent lawless action ... likely to
incite or produce such action."
[9] The
test in the military is whether the speech interferes with or prevents the
orderly accomplishment of the mission or presents a clear danger to loyalty,
discipline, mission, or morale of the troops.
See, e.g., United States v. Hartwig, 39 MJ 125, 128 (CMA 1994); United States v. Priest, 21 USCMA 564, 570,
45 CMR 338, 344 (1972). This is a lower
standard not requiring "an intent to incite" or an "imminent"
danger.
[10] There
are competing values and interests in a free society. A fundamental right in such a society is freedom of speech and
association protected by the First Amendment.
The right to express ideas is essential to a democratic government. McIntyre v. Ohio Elections Commission, 514
U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (the Court held that Ohio's
requirement of self‑identification of campaign literature is an
unconstitutional limitation of free speech).
Both military servicemembers and civilians have the right to criticize
the Government and to express ideas to influence the body politic.
[11][12]
But the right of free speech is not absolute.
Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441, 77 S.Ct. 1325, 1328, *396 1 L.Ed.2d 1469 (1957); see 405 U.S. LII. There is a difference between the rights of a civilian and the
rights of a servicemember. Cf. United
States v. McCreight, 43 MJ 483, 486 (1996).
The same concept was articulated earlier by the Supreme Court in Levy,
417 U.S. at 758, 94S.Ct. at 2563:
"The fundamental necessity for obedience, and the consequent necessity
for imposition of discipline, may render permissible within the military that
which would be constitutionally impermissible outside it."
[13] In a
democratic society there is competition between security and democracy. These may be balanced, but there are both
international and domestic implications to be considered in determining such a
balance. To ensure an adequate
discussion of the competing interests, servicemembers as well as the public in
general have a right to voice their views so long as it does not impact on
discipline, morale, esprit de corps, and civilian supremacy. The countervailing government interest in
maintaining discipline, morale, esprit de corps, and civilian supremacy has
been addressed in the past.
[14]
Discipline. As this Court stated in
Priest, 21 USCMA at 569‑70, 45 CMR at 343‑44:
First Amendment rights of civilians and members of
the armed forces are not necessarily coextensive, but, in speech cases, our
national reluctance to inhibit free expression dictates that the connection
between the statements or publications involved and their effect on military
discipline be closely examined.
[15][16]
The weighing of First Amendment considerations within the military is such that
"the right of free speech in the armed services is not unlimited and must
be brought into balance with the paramount consideration of providing an
effective fighting force for the defense of our Country." Priest, 21 USCMA at 570, 45 CMR at 344. In Levy, 417 U.S. at 744, 94 S.Ct. at 2556,
the Court repeated this observation from In re Grimley, 137 U.S. 147, 153, 11
S.Ct. 54, 55, 34 L.Ed. 636 (1890):
"An army is not a deliberative body. It is the executive arm.
Its law is that of obedience. No
question can be left open as to the right to command in the officer, or the
duty of obedience in the soldier."
The military may restrict the soldier's right to free speech in peace
time because speech may "undermine the effectiveness of response to command." 417 U.S. at 759, 94 S.Ct. at 2563.
In Goldman
v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986)
the Supreme Court stated: "[T]o
accomplish its mission the military must foster instinctive obedience, unity,
commitment, and esprit de corps."
Because of
the hostile environment faced by servicemembers, there must be an instinctive
obedience to orders from superiors.
This instinct must be internalized to accomplish the military mission of
protecting the nation to deter war, and if necessary, to successfully fight
wars.
[17] The
interest in maintaining good order and discipline has few counterparts in the
civilian community. Thus, Courts will
"not overturn a conviction unless it is clearly apparent that, in the face
of a First Amendment claim, the military lacks a legitimate interest in
proscribing the defendant's conduct."
Avrech v. Secretary of the Navy, 520 F.2d 100, 103 (D.C.Cir.1975).
Military
Mission. In addition to responsiveness
to orders and the need for discipline, we will also examine the military
mission. As to the mission of the
military, Senator Nunn stated:
The primary mission of the armed forces is to
defend our national interests by preparing for and, when necessary, waging war,
using coercive and lethal force.
Responsibility for the awesome machinery of war requires a degree of
training, discipline, and unit cohesion that has no parallel in civilian
society.
The armed forces must develop traits of character,
patterns of behavior, and standards of performance during peacetime in order to
ensure the effective application and control of force in combat. Members of the armedforces are subject to
disciplinary rules and military orders, twenty‑four hours a day,
regardless of whether *397 they are
actually performing a military duty.
Military service is a unique calling. It is more than a job. Our nation asks the men and women of the
armed forces to make extraordinary sacrifices to provide for the common
defense. While civilians remain secure
in their homes, with broad freedom to live where and with whom they choose,
members of the armed forces may be assigned, involuntarily, to any place in the
world, often on short notice, often to places of grave danger, often in the
most spartan and primitive conditions.
Nunn, The
Fundamental Principles of the Supreme Court's Jurisprudence in Military Cases,
29 Wake Forest L.Rev. 557, 558 (1994), reprinted in The Army Lawyer 27, 28 (DA
PAM 27‑50‑266) (Jan. 95).
Civilian
supremacy. The purpose of our military
is to defend our national security as well as to project power as a part of our
national strategy in international politics.
This rationale must recognize the supremacy of civilian authority over
military authority. Foreign policy and
the projection of force is the function of the Executive and Legislative Branches. The heart of a free society depends upon
national security and the ability to project power worldwide. Servicemembers are sworn to protect our
national security.
The
security of the United States is dependent upon international order. The role the United States plays in
international politics will determine the security of the nation, particularly
with the shift in distribution of power after the Cold War. There is always a political question as to
exactly what extent the United States should use its military force. Because of the political debate over the
United States' role in international politics, the supremacy of civilian
authority is essential. Continuity of
power and the distribution of use of power may determine not only the security
interests of the United States but also of many other nations. The imposition of force will depend on
motivation, attitudes, and the internal composition of the domestic structure
of the United States. In one sense, a
nation's security is not only dependent upon its reputation for power, but its
willingness to project power to preserve peace. Peace and power are not mutually exclusive but may be considered
as part of a continuum.
[18][19]
The military must be subordinate to its civilian superiors. This does not mean that servicemembers may
not express their views. However, they
do not have an absolute right to express their views. "[F]reedom of expression upon public questions is secured by
the First Amendment." The right to
freedom of speech "was fashioned to assure unfettered interchange of ideas
for the bringing about of political and social changes desired by the
people." New York Times Co. v.
Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). In fact "public discussion is a political
duty." Id. at 270, 84 S.Ct. at
720, quoting Whitney v. California, 274 U.S. 357, 375‑76, 47 S.Ct. 641,
648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). To carry out this duty and exercise this right, there must be
freedom to think as you will, to speak as you think. However, this right must be tempered in a military setting based
on the mission of the military, the need for obedience of orders, and civilian
supremacy.
[20]
Article 88, UCMJ, 10 USC § 888, makes it an offense for "[a]ny commissioned
officer [to] use[ ] contemptuous words against the President" and other
senior officials. One of the rare
instances of prosecution under this clause involved an individual who used
contemptuous expressions about President Lincoln. Vagts, Free Speech in the Armed Forces, 57 Colum.L.Rev. 187, 193
(1957). Likewise, servicemembers may be
charged with disrespect towards officers and noncommissioned officers under
Articles 89 and 91, UCMJ, 10 USC § 889 and 891, respectively. Whether there is a violation of free speech
requires the balancing of the mission of the military, when, where and how the
alleged incident took place, and whether there are practical outlets to
reinforce democratic values. A
corollary to this is that servicemembers do not have an absolute right to
freedom of speech and freedom of association in the military.
*398 The
importance of the United States' role in the Gulf War cannot be over‑emphasized. Had there been a failure of the projection
of power, the impact on national security interests could have been dire.
[21] While
appellant was meeting with soldiers to protest their working and living
conditions, other servicemembers were sleeping in the Saudi desert in their
tents, in their tanks, in their trucks, and, in some cases, on the sand with
only the stars above. Appellant had
many outlets for his complaints, The Inspector General, members of the command,
the Secretary of the Army (Art. 138, UCMJ, 10 USC § 938), and members of
Congress (10 USC § 1034). The statute
did not directly regulate free speech which "occupies the core of the
protection afforded by the First Amendment." McIntyre v. Ohio Elections Commission, 514 U.S. at ‑‑‑‑,
115 S.Ct. at 1518. Even if we treated
this speech as political speech, it was not protected under these
circumstances. The talk by appellant did not coincide with the public's need
for an effective and informed electorate.
Likewise, the interests involved here did not deal with the difficult
reconciliation required for the accommodation between political discourse and
the right to vote. Burson v. Freeman,
504 U.S. 191, 198, 112 S.Ct. 1846, 1851, 119 L.Ed.2d 5 (1992). The statute in question did not completely
curtail free speech. In fact, where a
soldier has grievances, there are various means to air these grievances and
complaints specifically set forth in the statute. Art. 138.
Article
138 of the Code provides that a complaint may be made through the chain of
command to the service secretary. In
addition, all the services have Inspector Generals who could entertain these
types of complaints. While Congress
sought to limit an outcome in particular cases, there was no strategic
manipulation of the ability to inform other servicemembers or the public
concerning a certain perspective. The comments
of the concurring Justices in Parker v. Levy, supra, are just as appropriate to
this case: "[T]imes have not
changed in the area of moral precepts....
The general articles are essential not only to punish patently criminal
conduct, but also to foster an orderly and dutiful fighting force.... [U]ndisciplined rank and file can decimate a
fighting force." 417 U.S. at 763,
94 S.Ct. at 2565 (Blackmun, J., concurring).
This was not only an undisciplined fighting force that appellant was
seeking to lead, but also one that was actually going to quit.
The
statute here seeks to make it unlawful to organize, strike, or commit "any
other similar form of concerted action ... directed against the
Government." 10 USC §
976(c)(3). These were not just gripe sessions;
rather, they were meetings to assist soldiers in abandoning their units during
the largest mobilization since World War II.
In
contrast to Levy, appellant urged the servicemembers in his unit to abandon
their duty and return home.
FACTS‑‑ISSUE II
A meeting
on February 7, 1991, was followed by a mass AWOL of servicemembers from the
First Battalion, 156th Infantry Regiment (Mechanized) that leftFort Hood,
Texas, as a group and returned to their hometown of Shreveport, Louisiana. Upon returning home, some of the soldiers
from that unit complained to the local media.
The return home of Shreveport servicemembers followed an earlier
incident at Fort Hood in which approximately 15 to 20 Louisiana National Guard
troops stopped working for the entire afternoon and refused to obey the
Battalion Commander's orders. These
three events led the Brigade Commander, Brigadier General (BG) Gary J. Whipple,
to appear on local television and condemn the actions of members of his command
who had "brought shame on the Brigade ... [and who] didn't represent the
people nor the soldiers that were staying and doing their patriotic duty."
As a
result of BG Whipple's television appearance, the Staff Judge Advocate, Colonel
James D. Mogridge, advised the Fort Polk Commander, Major General (MG) Crouch,
that BG Whipple had lost his impartiality.
Colonel Mogridge recommended that the Louisiana National Guard cases be
transferred "to a Brigade Commander who is not *399 familiar with the facts." Eventually, Colonel Billy K. Solomon, now Major General Solomon,
Commander of Division Support Command, inherited the cases. During the investigation, Colonel Solomon
was advised by Colonel Mogridge and two trial counsels appointed for these
cases, specifically Captain (CPT) Andra Sparks and CPT Thomas Berg. Colonel
Solomon dismissed the initial mutiny charges on the advice from his two trial
counsels.
[22] No
motion was made at trial to dismiss the charges or for other appropriate relief
based on command influence.
The court
below found:
After carefully considering the record of trial,
the briefs, and affidavits submitted from the participants, we hold that there
was no unlawful command influence in this case that limited the discretion of
Brigadier General (BG) Solomon. We note
that BG Solomon was not a commander who had been directly involved or
personally embarrassed by the incidents.
He was advised in the matter by the assigned trial counsel, Captain S,
an officer in the office of the staff judge advocate. Significantly, BG Solomon denied that any persons had attempted
to influence his disposition decision improperly. Although the facts of the case may have supported a mutiny
charge, he was convinced that the charge alleging a violation of Section 976
would more accurately reflect exactly what happened in the incident.
41 MJ at
510 (footnote omitted). We agree.
Colonel
Solomon was not influenced or pressured by anyone. No one from the Staff Judge Advocate's Office contacted him as to
an appropriate disposition, and Colonel Solomon indicated he had complete
independence and control over his jurisdiction.
DISCUSSION‑‑ISSUE II
[23] While
recognizing that command influence has been a problem for years, United States v. Weasler, 43 MJ 15, 16‑17
(1995), this Court has drawn a "distinction between the accusatorial
process and the adjudicative stage, that is, the difference between preferral,
forwarding, referral, and the adjudicative process, including interference with
witnesses, judges, members, and counsel."
Id. at 17‑18 (footnotes omitted).
Failure to raise the issue of command influence as to the accusatorial
process, as in this case at the trial, waives the issue. Id.;
see also United States v. Hamilton, 41 MJ 32 (CMA 1994).
The
decision of the United States Army Court of Criminal Appeals is affirmed.
Judge
WILKINS [FN*] concurs.
FN* Judge William W. Wilkins, Jr., of the United
States Court of Appeals for the Fourth Circuit, sitting by designation pursuant
to Article 142(f), Uniform Code of Military Justice, 10 USC § 942(f).
COX, Chief
Judge (concurring in the result):
I do not
view this case as a First Amendment case;
accordingly I concur in the result.
Article V,
American Articles of War of 1775 (enacted June 30, 1775), provided:
Any officer or soldier, who shall begin, excite,
cause, or join in any mutiny or sedition, in the regiment, troop, or company
... of the continental forces, either by land or sea, or in any part, post,
detachment, or guard, on any pretense whatsoever, shall suffer such punishment,
as by a general court‑ martial shall be ordered.
Quoted
from W. Winthrop, Military Law and Precedents 954 (2d ed. 1920 Reprint).
Likewise,
220 years later, Article 94, Uniform Code of Military Justice, 10 USC § 894,
proscribes mutiny as a crime against military good order and provides for the
death penalty or other such punishment as a court‑martial may direct.
Appellant
and his confederates clearly, deliberately, and collectively set about to
disobey the orders of their superiors and to organize a mutiny against the
command and its mission.
Luckily,
the Government chose a less sensational and onerous charge upon which to
prosecute appellant for his misconduct.
Although I find it highly unusual for the Government *400 to rely upon a statute (10 USC § 976) outside the Uniform
Code of Military Justice but still within the bounds of Title 10, United States
Code, for its prosecution of appellant, it is quite clear that appellant's
conduct was prejudicial to good order and discipline in the military and
punishable as such. Art. 134, UCMJ, 10
USC § 934; see Parker v. Levy, 417 U.S.
733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Accordingly, I join in affirming the
decision of the Court of Criminal Appeals.
GIERKE,
Judge (concurring in part and in the result):
I agree
with the majority's resolution of the command‑influence issue. It is easy to see why it was not raised at
trial: it was patently without merit.
In my view
this case is not about protection of "fighting words" under the First
Amendment or civilian supremacy over the military. Accordingly, I see no need to agree or disagree with those parts
of the majority opinion.
Similarly,
I see no need to address the importance of the Gulf War, the threat of nuclear,
chemical, and biological warfare, or the adverse living conditions endured by
those who served. There is no issue of
"important service" or "hazardous duty" before us.
I reach
the same result as the majority on Issue I, but by a different route. I agree with the majority that the statute
in question is not overly broad and that it does not violate appellant's First
Amendment rights. What the majority
fails to address, however, is appellant's argument that United States v. Pete,
39 MJ 521 (ACMR 1994), should control this case. Pete stands for the proposition that the statute prohibits only
"union related" activities. Appellant argues, therefore, that the
statute does not apply to the informal action taken by appellant and his
comrades.
Both Pete
and this case were decided by the same panel of the court below, but with
different results. Both Pete and this
case involved "the same episode at Fort Hood with similar charges"
against both soldiers. 41 MJ at
508. In Pete the court below clearly
framed the pivotal issue in both cases:
"[W]hether the appellant's activities were the type of 'concerted
action involving members of the armed forces' that the statute
proscribes." 39 MJ at 525. The
court below construed 10 USC § 976(c) "as proscribing disruptive concerted
activity in the military that is indubitably bound with union organizational,
representational, or bargaining objectives." Id. at 527. The court
below found that the Government failed to prove beyond a reasonable doubt that
Sergeant Pete's actions violated the statute.
In appellant's
case the court below found that appellant and other soldiers "banded together in an informal group
that attempted to organize and implement a seven‑day‑long‑'strike'
within the military context for the purpose of forcing a change in their training
conditions." The court concluded
that appellant's conduct violated the statute.
41 MJ at 509. The court
distinguished the Pete decision, noting that it "should not be
misconstrued to indicate that participation in a 'military labor organization'
is a prerequisite for a violation of Section 976(c)(3)(C)." 41 MJ at 508 n. 2. The finding of a violation of the statute in this case is
difficult to reconcile with the finding by the very same panel of the court
below that Sergeant Pete, a participating member of the same "informal
group," did not violate the statute.
At first
blush, the literal language of the statute would appear to undermine
appellant's argument that his conduct was not proscribed by the statute. The statute makes it‑‑
unlawful for any person ... to organize, or
attempt to organize, or participate in, any strike, picketing, march,
demonstration, or other similar form of concerted action involving members of
the armed forces that is directed against the Government of the United States and
that is intended to induce any civilian officer or employee, or any member of
the armed forces, to ... make any change with respect to the terms or
conditions of service in the armed forces of individual members of the armed
forces....
10 USC §
976(c).
The
uncertainty arises not from the literal language of the statute, but from the
legislative *401 history reflecting
congressional intent. The legislation
was enacted in response to efforts by the American Federation of Government
Employees (AFGE) to add military personnel to their ranks. House Committee on Armed Services, H.R.Rep.
No. 894, 95th Cong., 2d Sess. 6‑7 (1978), reprinted in 1978 U.S.Code
Cong. & Admin.News (hereafter USCCAN) 7575, 7578. The purpose of the
legislation was "to promote the readiness of the Armed Forces by
prohibiting the membership of military personnel in military labor
organizations, prohibiting the enrollment of military personnel in such
organizations and prohibiting the recognition of such unions by members of the
Armed Forces or by civilian officers and employees of the
Government." House Report, supra
at 5, reprinted in 1978 USCCAN at 7577.
The
statute prohibits organizational and collective bargaining activity by "any person." Appellant would appear to be included in the
phrase, "any person."
However, in the section‑by‑section analysis of the House
Report, "any person" is followed by the parenthetical "(i.e. a
labor organization or association as well as its representatives)," House
Report, supra at 9, reprinted in 1978 USCCAN at 7581, thus limiting the term
"any person" to persons associated with a labor organization or
association. Since there was no
evidence that appellant was associated with any labor organization, and no
evidence that he was trying to form any kind of organization, he would not
appear to be included in the term "any person" as that term was
intended by Congress. Since criminal
statutes must be narrowly construed, I would give appellant the benefit of the
ambiguity and hold that appellant's acts did not violate the statute because he
was not acting as a representative of any labor organization or association.
Nevertheless, I believe that appellant's conviction of unlawful
concerted action can be upheld. Even if
appellant does not qualify as "any person" within the meaning of the
statute, his conduct was prejudicial to good order and discipline, an included
offense under Article 134, Uniform Code of Military Justice, 10 USC § 934. Accordingly, I join the majority in
affirming appellant's conviction of violating Article 134, but I would affirm
on the basis of a Clause 1 violation instead of a Clause 3 violation. See para. 60c, Part IV, Manual for Courts‑Martial,
United States (1995 ed.). I decline to
join the majority's holding that appellant's conduct violated 10 USC § 976(c).
I am
satisfied that appellant was not prejudiced on sentencing by the
mischaracterization of his conduct as a violation of 10 USC § 976(c).
Accordingly, I join the majority in affirming appellant's sentence.
SULLIVAN,
Judge (dissenting):
In The
Caine Mutiny by Herman Wouk, the defense attorney, Lieutenant Greenwald, tells
the accused, Lieutenant Maryk, before trial:
I better tell you one more thing. I'd rather be prosecuting you than defending
you. I don't know yet how guilty you
are. But you're either a mutineer or
one of the dumbest goofs in the whole Navy.
There's no third possibility.
Id. at
356.
In this
case, the Government has come up with that "third possibility"‑‑a
violator of an anti‑union law.
Such a prosecution must fail, however, because there is no evidence of
any union activity or union organizing activity in this case.
The words
in the name of the statute at issue here give us our initial guidance:
Membership in military unions, organizing of military
unions, and recognition of military unions prohibited.
10 USC §
976. Thus, it is clear that this
command statute is directed against anti‑union activity. In fact, the clause under which appellant
was prosecuted‑‑10 USC § 976(c)(3)‑‑was explained in
this light in the "Section‑ by‑Section Analysis" part of
House Report No. 894, 95th Cong., 2d Sess., on the basic legislation of the
statute (Pub.L. No. 95‑610):
Subsection (c)‑‑Prohibited union
activities.
This subsection describes the activities which are
unlawful for any person (i.e. a *402
labor organization or association as well as its representatives), who is
engaged in organizing or collective bargaining activity.
* * *
Subsection (c)(3) prohibits concerted labor union
activities which are intended to induce a members of the Armed Forces ... to
(A) negotiate or bargain concerning the terms or conditions of military
service[.]
1978
U.S.Code Cong. & Admin.News at 7581‑82 (emphasis added).
The record
in this case shows no union activity whatsoever. No dues collecting, union organizing, etc. All we have is a group of griping national
guard soldiers called to active duty in a hot, dusty, Texas Army base for some hard
training. This group obviously did not
like the hard soldiering and felt they were being treated unfairly and
harshly. What they wanted to do was to
leave the post, go to their home community, expose the harsh training to what
they hoped would be a sympathetic media, and then return to duty. This was a dumb idea and an ill‑conceived
round‑trip bus excursion to trouble.
It was wrong. In a court of law,
a clear‑headed prosecution team may well have proved that this was mutiny
by refusing to obey orders or perform duties or any of the lesser‑included
offenses under Article 94, Uniform Code of Military Justice, 10 USC § 894.
Additionally, appellant could not have known that
his action of lining up bus transportation for his friends would be viewed as
the criminal action of an agent of a labor union. There was no union to be an agent for. Thus, the statute under which appellant was prosecuted is not
applicable in the circumstances of this case.
Even if the majority, by assuming facts (i.e., existence of a labor
union) not in evidence, could apply this statute to this case, application of
10 USC § 976 would be unconstitutionally void for vagueness.
If we were
to allow such prosecutions under this statute, who knows how far such a statute
could be stretched. Could three
soldiers who decide to go off base without a pass for a beer with a reporter to
discuss the evil things done by their harsh first sergeant likewise be
prosecuted? Clearly, the common sense
approach to handle the discipline of appellant would be to use the age old
mutiny statute and its list of lesser‑included offenses.
Moreover,
on leadership grounds but not on legal grounds, I question the command decision
to give Article 15, UCMJ, 10 USC § 815, punishment to white soldiers for
leaving their post and going home, but giving federal criminal convictions to
black soldiers who tried to do the same thing at the same post during the same
time period. Let us use common sense
and fairness.
For the
above legal reasons, I would reverse the decision below and remand it for a
possible rehearing under the appropriate statutory provisions. [FN**]
FN** The various opinions of the judges of this
Court indicate that there are not three votes for upholding the lower appellate
court's decision that the military anti‑union statute (10 USC § 976) was
violated in this case.