Older 1466A a(2) Case (Military case)

What do you think about this case? https://www.google.com/url?sa=t&source=web&rct=j&url=https://afcca.law.af.mil/content/afcca_opinions/cp/labella-37679.u.pdf&ved=2ahUKEwjf6MOTt4z9AhVjmmoFHUpNClUQFnoECCkQAQ&usg=AOvVaw3-gkLvby1BLdsI054CDMeJ

Particularly the note on the contentiousness of 1466A a(2) on page 6.

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Those provisions cannot be applied to works of fiction, but can be applied to materials involving real children.

It seems that his defense did not press the government to actually prove that the materials were virtual, which would have, under the precedent in Handley and Dean, would disallow them to do since they would have to be ruled obscene, not ‘per se obscene’.

Moreover, this is a Military Appellate Court, and UCMJ in general is held to a different set of standards than other courts; they have different precedents and caselaw that are only applicable to those settings and environments. I know that seems like a cop-out answer, but the only way someone could be prosecuted under that provision for something not involving a real child is if they accept a plea bargain for it.

In Beaty, our superior court held that “possession of child pornography, whether
actual or virtual, may constitutionally be prosecuted under clauses 1 and 2, Article 134,

The First Amendment does not apply to Military service members the way it does for civilians, as unfortunate as that is.
They can be arrested for speech that was found to be protected by the First Amendment, like flag desecration, for example.

In Texas v. Johnson (1989), the SCOTUS foud that laws banning the practice of flag desecration were unconstitutional because they abridged what is essentially valid political speech. Conservatives on the court dissented, presenting what were basically non-arguments against what is essentially a logical and concise ruling.

But this doesn’t apply to those under the UCMJ. Military memebers who desecrate the flag can be prosecuted under decades-old laws designed to punish flag burning, even though such laws would have no value if pointed at a civilian.


Other than being stupid? :roll_eyes: Not much, unfortunately. :thinking: Well, maybe I could add that,
if it happened to me, I wouldn’t even bother to try to defend myself. I would simply say something like: “You guys already decided that I did something wrong, and I can’t do anything to protect myself against your tyranny. So let’s save both our time and go straight to the sentence”.


Are you saying that the Dean judge would have declared the questionable section as unconstitutional had it involved fiction only? I will be the Devil’s advocate and say this: what if they ruled the same thing with fiction as they did in the actual Dean case? In the end, the judge did say Dean failed to carry his burden of proving the sections prohibit a substantial amount of speech. How do you counter this?

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Yes. The ONLY way they could successfully be used for something fictional is if the defendant takes a plea deal, to my knowledge, but that can be said of any misapplication of criminal law.

It’s pointless to postulate legal findings or facts that have no real precedent. The materials Dean was charged with under that statute were materials which could have also been charged under normal CP laws because they involved a real child.
I’m sure it wouldn’t be difficult to sue the government under this statute, but because Williams requires the overbroadth of a law’s application to be ‘substantial’ to be invalid on its face, and because it already has a large swath of applications towards CSEM, it would be difficult to do.

Handley’s was an as-applied challenge, one contingent on the fact that it plainly went against Ashcroft, a finding that has precedential value.


Handley’s challenge was as-applied? I thought it was facial. Based on what Gritzner the judge concluded in the case, it sounds like it was a facial challenge. But I could be wrong. You are right that the per se obscenity sections are applicable to CSEM anyways. I still can’t help but fear that one day the government will use them instead of the Miller ones to prosecute entities and people.

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No. It was an as-applied challenge whose progeny stands as precedential for similar facts or circumstances. Any application otherwise would run afoul of Ashcroft, Williams, and Stevens (a case targeting animal abuse/dogfighting videos).

Facial challenges are very difficult to land of the law is written a certain way.

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I think you are differentiating between a statute burdening a substantial amount of protected speech and thus being unconstitutional, versus a statute not being applicable for reasons other than overbreadth. In this case, the per se section is not applicable to fiction not because it’s overbroad and facially unconstitutional, but because the Miller test must be applied to prove an image of fictional characters is obscene, correct? Thus, if someone is charged with the per se section for virtual images, that person would probably not be able to succeed with a facial challenge, but would with an as applied challenge. There is a precedent that says one cannot mount an as applied challenge if the statute applies to you. However, in these types of cases, even if an image could be patently offensive (as they seem to argue in Dean, that virtual images of younger children are patently offensive), the statute is still not applicable because Miller must be met with virtual images. Like Handley’s lawyer said, you are entitled to the full protection of Miller and not of some abridged version of this test. It’s essentially a substantive due process issue, correct?

If all this is true, then it seems that this section is pretty useless, while maybe not overbroad on its face (I think it is for reasons I will state later), as prosecutors will not want to charge people with a section that will be challenged and dropped because it fails to include the full Miller test.

I think the section is overbroad because images of virtual younger children may neither be patently offensive nor appeal to the prurient interest. Like we have discussed, communities in general seem to accept fictional depictions. Furthermore, a story that lacks serious value and is patently offensive may still not appeal to the prurient interest as a whole (the “as a whole” part is still required for prurient appeal), as it could be created with the intention of telling a story (one could argue this would still have serious value though).