After a military judge “sitting as a general court-martial
convicted [him] of two specifications of knowingly possessing . . . 224 obscene
visual depictions of minors engaging in sexually explicit conduct in violation
of 18 U.S. Code § 1466A(b)(1), incorporated by clause 3, Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S. Code § 934”, Ryan Bowersox
appealed. U.S. v. Bowersox, 72 M.J. 71 (U.S. Court of Appeals for the Armed Forces 2013). The
sentence imposed on him “provided for a bad-conduct discharge, confinement for
four months, forfeiture of all pay and allowances, and reduction to E–1.” U.S. v.
Bowersox, supra.
In his appeal, Bowersox claimed his conviction was “unconstitutional
. . . because the minors depicted in the material at issue were not actual
minors”, citing Ashcroft v. FreeSpeech Coalition, 535 U.S. 234 (2002) as supporting his claim. U.S. v.
Bowersox, supra. As Wikipedia
explains, the Ashcroft Court held
that distributing and posessing child pornography (i) can be
outlawed when the production of the material required using “real” children but
(ii) cannot be outlawed when the material was created by using
computer-generated images, rather than “real” children.
The Ashcroft Court
found that criminalizing “virtual” child pornography violates the 1st
Amendment (i) because child pornography qualifies as “speech” that is protected
by that provision and (ii) because none of the “harms” that justify outlawing
“real” child pornography are present when no “real” child was involved in its
creation. Ashcroft v. Free Speech Coalition, supra. In New York v. Ferber, 458 U.S. 747 (1982), the Court identified those “harms” –
the physical and emotional “harm” to the children involved in creating “real”
child pornography and the residual emotional “harm” they suffer as the material
circulates afterward -- and held they justify outlawing “real” child
pornography.
This, according to the opinion, is how the case arose:
[Bowersox] lived with Specialist (SPC)
Andy Bryant in a shared military barracks room located on Fort Bragg, North
Carolina. One day in early February 2009, after entering the shared barracks
room, Bryant observed [him] abruptly stand up, and step in front of his computer, obscuring Bryant's view of
the computer screen.
Bryant testified that he found [Bowersox’s] behavior `odd.’
Shortly
thereafter, [Bowersox] asked Bryant for the phone number of their superior,
Sergeant Clark. When Bryant asked [Bowersox] why he wanted the phone number, [he]
said he wanted to report a web site and asked Bryant to come over and see the
web site for himself. [Bowersox] then showed Bryant his computer screen, on
which there were images of minors engaged in sexual activities. [He] asked Bryant
if he should report the web site. Bryant told [him] to report the web site and
left the room.
Approximately one week later, Bryant
asked Clark if [Bowersox] had reported the web site; [Bowersox] had not. After
confronting [Bowersox], who feigned ignorance of the web site, Bryant reported
the incident to his first sergeant, who immediately sent him to Criminal
Investigation Command (CID) to make an official report.
U.S. v. Bowersox,
supra.
The opinion also explains that “[t]he computers” were sent to
“SA Kirk Ellis,” the
Computer Crimes Coordinator for
the 10th MP Battalion, who conducted a search of the computers' hard drives. The search of the
laptop computer’s hard drive uncovered approximately twenty-seven images
depicting minors engaged in sexual activities. The search of the desktop computer's hard
drive uncovered approximately 318 images depicting minors engaged in sexual
activities.
None of the images found on [Bowersox’s]
computers depicted real
children. In a sworn statement made to CID, [he] admitted he was `addict[ed] to
Anime’ and, on multiple occasions, had viewed and downloaded
anime images that depicted minors engaging in sexual activities.
U.S. v. Bowersox,
supra. In a note, the Court of
Appeals explains that while Bowersox
described the images as `anime’ . . .
they are more accurately described as realistic computer animation. Anime is `a
style of animation originating in Japan that is characterized by stark colorful
graphics depicting vibrant characters in action-filled plots often with fantastic
or futuristic themes.’ Merriam–Webster's Collegiate Dictionary 49
(11th ed.2008).
In contrast, the images at issue depict
real-looking children and adults engaged in sexual conduct. The images are
created with such realism that they show expressions of pain and pleasure on
the child participants' faces, the children's shadows on the ground, and even
depict the leg hairs of the men engaging in sex with the children. While the
record does not establish that these images portray real, living children, it
does demonstrate that [they] are far removed from the fanciful cartoon caricature
commonly understood to be `anime.’
U.S. v. Bowersox,
supra.
As noted above, Bowersox argued that applying Ҥ
1466A(b)(1) to his case” was unconstitutional because the statute requires
that a real minor be depicted and no real minors were depicted in the images
found on [his] computers.” U.S. v. Bowersox, supra. The problem, for Bowersox, is that §
1466A(b)(1) is not a possession of
child pornography statute like the one at issue in Ashcroft. Instead, § 1466A(b)(1) makes it a crime for anyone who,
`in a
circumstance described in subsection (d), knowingly possesses a visual
depiction of any kind, including a drawing, cartoon, sculpture, or painting,
that . . . depicts a minor engaging in sexually explicit
conduct; and. . . is obscene’. The circumstances set out in 1466A(d) include
the requirement that a `communication involved in or made in furtherance of the
offense contemplates the transmission or transportation of a visual depiction .
. . by any means, including by computer’.
That was obviously met in this case.
U.S. v. Bowersox,
supra.
So, as the Court of Appeals explained, “contrary to”
Bowersox’s claim, § 1466A(b)(1)
does not require proof that the
depictions represent `real’ minors. . . .§ 1466A(c) expressly states, `[i]t is
not a required element of any offense under this section that the minor
depicted actually exist.’ Despite the clarity of this language, [Bowersox]
contends it does not mean what it says, but means Congress intended subsection
(c) to `reliev[e] the Government from the burden of exhaustively searching the
country to identify conclusively the children involved in the production of the
child pornography.’ Brief for Appellant
at 9, U.S. v. Bowersox (quoting U.S. v. Whorley, 550
F.3d 326 (U.S. Court of Appeals for the Fourth Circuit 2008) (Gregory, J.,
concurring in part and dissenting in part)).
U.S. v. Bowersox,
supra.
The court therefore found that Bowersox’s argument failed
for “at least” two reasons:
First, Congress provided equally clear and
alternative language for doing exactly what Appellant describes when it defined
an `identifiable minor’ in another section of that chapter -- `[this
definition] shall not be construed to require proof of the actual
identity of the identifiable minor.’ 18 U.S. Code § 2256(9)(B) (emphasis
added). That is not the language Congress used in the statute before us. .
. .
Second, even if the words that a minor
need not `actually exist,’ . . . are open to alternative interpretations, that
they mean the depictions need not be of a real minor is further illustrated by
the list of visual depictions prohibited under the statute, which specifically
lists both drawings and cartoons. See 18 U.S. Code § 1466A(b).
Moreover, visual depictions are defined to include a `computer image or picture, or
computer generated image or picture, whether made or produced by electronic,
mechanical, or other means.’ 18 U.S. Code § 1466A(f)(1). Neither drawings
nor cartoons nor computer-generated images necessarily or logically require a
real minor.
In our view, the express reference to `computer image
or picture, or computer generated image or picture,’ and to drawings and
cartoons, makes clear that the statute . . . made criminal the possession of
precisely the type of depictions on which [Bowersox’s] conviction was based -- obscene, computer-generated
images of minors engaged in sexually explicit conduct.
U.S. v. Bowersox,
supra. So the Court of Appeals
rejected Bowersox’s argument as to the applicability of § 1466A.
It then took up his argument that § 1466A(b)(1) “is
unconstitutional as applied to him because he has the right to possess
obscenity in the privacy of his shared barracks room.” U.S. v. Bowersox, supra. He
relied on the Supreme Court’s holding in Stanley v. Georgia, 394 U.S. 557 (1969), in which the Court held that a statute that prohibited the
possession of
obscene material within the home was unconstitutional. In doing so, the Court
stated that, `a State has no business telling a man, sitting alone in his own
house, what books he may read or what films he may watch.’
U.S. v. Bowersox,
supra (quoting Stanley v. Georgia,
supra).
But the Court of Appeals also noted that the Supreme
Court has “`consistently rejected constitutional protection for obscene
material outside the home,’” which meant the issue in this case was “whether
a shared barracks room is a `home.’” U.S. v.
Bowersox, supra. It explained that “servicemembers
have a reasonable expectation of privacy in a shared barracks room that
protects them from unreasonable government intrusions, we do not agree that
one's privacy interest in a shared barracks room is coextensive with one's
privacy interest in their home”. U.S. v.
Bowersox, supra.
The court poined out that it had found, in U.S. v. McCarthy, 38 M.J. 398 (U.S. Court of Military Appeals
1993), that
`[t]here are substantial differences
between [a barracks room and a private home]. [McCarthy] was assigned his room;
he did not choose it. [He] was assigned his roommate; he did not choose him. [He]
could not cook in his room, have overnight guests, or have unaccompanied
underage guests. [He] knew that he was subject to inspection to a degree not contemplated
in private homes.’
U.S. v. Bowersox,
supra (quoting U.S. v. McCarthy,
supra).
It then explained that in this case, the fact that Bowersox
purposefully exposed Bryant to the
obscene computer
depictions in their shared barracks room highlights the divergent
natures of a shared barracks room and a private home. See U.S. Stanley,
supra (`If the 1st Amendment means anything, it means a State has no
business telling a man, sitting alone in his own house, what books he may read
or what films he may watch’). The very nature of a shared barracks room
increases the risk that obscene materials will be viewed by those who do not
wish to view them. . . . `The natural tendency of material in the
home being kept private,’ is substantially diminished in a shared barracks
room. U.S. v. Orito, 413 U.S. 139 (1973).
U.S. v. Bowersox,
supra.
The Court of Appeals also explained that while a
servicemember has a reasonable expectation of
privacy in the files kept on a personal, password-protected computer for
purposes of the 4th Amendment, that privacy interest is not
congruent with the discrete and special privacy interest in one's home
recognized by Stanley and was, in this case, overcome by a
lawful warrant authorizing a search for contraband based on probable cause. . .
. Stanley has been limited to its facts, and we decline to extend
its holding to a shared barracks room. . . .
U.S. v. Bowersox,
supra. As to the last comment, this law
review article explains that
some [judicial] decisions are
aberrations that simply do not accord with legislation or other decisions. In
other words, they are wrongly decided, so a court in a later decision will limit the prior decision to its facts to lessen the prior
decision's value as precedent.
Jeff Todd, Undead
Precedent: The Curse of a Holding “Limited to Its Facts,” 40 Texas Tech Law
Review 67, 74 (2007). And that, apparently, is what the Supreme Court has done
with Stanley.
The Court therefore affirmed Bowersox’s conviction and
sentence. U.S. v. Bowersox, supra.
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