Private internet speech is unlawful if an officer in the AF

11 October 2018.  Orders Granting Petition for Review

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

WHETHER APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.

Briefs will be filed under Rule 25.

Here is a link to the AFCCA opinion., from which this appeal flows.  However, there is an earlier opinion here which is relevant to the granted issue.

Investigation by the Department of Homeland Security and the Air Force Office of Special Investigations (AFOSI) revealed Appellant engaged in online conversations, image sharing, and electronic mail (email) correspondence with a Canadian law enforcement officer in a chat room on a pornographic website. Further investigation revealed Appellant had engaged in similar online conversations with a number of others. The content of the conversations involved extremely graphic descriptions of sexual abuse and degradation of children. On many occasions, Appellant asked for photographs of the alleged abuse. Appellant admitted to engaging in various online chats.

He was charged with violating Article 133, along with CP allegations.  AFCCA noted that:

There is no requirement that the conduct underlying an alleged violation of Article 133, UCMJ, be criminal on its own. United States v. Norvell, 26 M.J. 477, 481 (C.M.A. 1988). The underlying act may be constitutionally protected in civilian society but not necessarily so for military members, and therefore be criminal under Article 133, UCMJ. United States v. Forney, 67 M.J. 271, 275 (C.A.A.F. 2009). Purely private speech can serve as the basis for a charge under Article 133. United States v. Hartwig, 39 M.J. 125, 128 (C.M.A. 1994). Additionally, private conduct may constitute an offense under Article 133, UCMJ. United States v. Moore, 38 M.J. 490, 493 (C.M.A. 1994).