Minors, Obscenity and the Barracks Room

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 1^st 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 “§ 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 4^th 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.