In United States v. Blair, 67 M.J. 566 (C.G. Ct. Crim. App. 2009) the accused acting under an officer’s orders, drove a government vehicle to an airport for counseling. On two occasions a week apart, he brought Ku Klux Klan recruiting flyers with him and affixed one to the mirror in the men’s restroom in the airport. Though he was wearing civilian clothes both times, the members of the group counseling knew he was in the Coast Guard. Even though no one saw him post the flyers, he could have been seen by anyone who was in the restroom when he was posting them. Authorities later found that he pasted the flyers and further determined that he was in the Coast Guard. He was charged with, in relevant part, “wrongfully recruit[ing] for, solicit[ing] membership in, and promot[ing] the activities of the Ku Klux Klan,” “while publicly displaying an affiliation with the Armed Services,” which conduct was of a nature to bring discredit to the Armed Forces. He pled guilty and the military judge accepted his plea. The court had to decide if the accused’s plea was provident when the military judge did not elicit sufficient facts to show that he recruited for the Ku Klux Klan “while publicly displaying an affiliation with the Armed Services” and did not resolve inconsistencies brought out in sentencing that tended to demonstrate that he was not “publicly displaying an affiliation with the Armed Services” while he posted the flyers? The court upheld the conviction for this offense. First, there was a factual basis to sustain his plea. He admitted that he publicly displayed an affiliation with the Armed Services by driving a government vehicle and acknowledged that the counselors and attendees knew he was in the service. He posted the flyers at the airport because a large number of people would notice them. He also admitted that his conduct happened in public, was likely to bring the service into disrepute, and was wrongful. The court held that “publicly displaying an affiliation with the Armed Services” includes conduct that occurs in an area available to the public, whether or not another person is in fact present. In this case, there was a sufficient factual basis for his plea as there was the possibility that a member of the public who knew him to be in the Coast Guard could have readily noticed him affixing the flyers. Next, the court applied the standard provided by United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008) that governs speech offenses charged under Art. 134. A court must first determine if the speech at issue is protected by the First Amendment. The CGCCA assumed that this speech is protected speech. Next, the Government must prove the elements of the offense at issue. Since this was a guilty plea, the elements were demonstrated based on his admissions that his conduct was public in nature and had a service discrediting effect. The court also noted that his conduct took place “on the ground,” rather than on-line. The CGCCA held that there was a strong possibility that a member of the public would notice the conduct and take it seriously. Lastly, the Wilcox test requires the court to “strike a balance between the essential needs of the armed service and the right to speak out as a free American.” This requires the court to “weight the gravity of the effect of the speech, discounted by the improbability of its effectiveness on the audience the speaker sought to reach.” Here, the conviction was warranted despite First Amendment concerns. Considering matters presented at sentencing, including the airport director’s testimony that it “made [him] sick” when he found out that the source of the flyers was an active duty Coast Guardsman, the CGCCA ruled that “the potential effects, both stated and inherent, of [the accused’s] conduct on the Coast Guard’s reputation outweigh [his] interest in his right to speak out while on government business at the airport.”
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