Concern in the armed forces for many years. But it has come tofo the forefrt again especially with the misuse of social media to post nude photographs and unseemly conduct. On mrp 14th they issued a policy giddance in which ill quote a small portion of it. Marines represent the marine corp at all times and their speech and conduct must consistently embody or core values and commitment to each other. They must never engage on social meturicing platforms or other kmieks that harm good ordered and discipline or bring discredit to themselves, their unit or the marine corp. The times magazine talked about it. It creates no new laws, under scoring the legal quagmire posed by the internet and constraints by military leaders posed by privacy laws and rights of free speech. I think we all know free speech has limits. Certainly neither civilians nor military members can post threats, various kinds on the internet, cant break copyrights engage in what are those restrictions . I think we have three great experts who can talk not only about the law in this area but also about the real problem that the military is facing with respect to the social media issues. Our first speaker will be the honorable james or jany baker. She retired from the armed forces kpoul after having serves for 15 years. The last four of those were chief judge. Previously he served in various capacities in the white house before becoming a judge. And most recently he has law reform from yale. And i hope youll take a look at United States wilcox at which a soldier was prosecuted for posting other things on his aol profile where a speech talking about social intolerance. Professor Van Landingham is a professor at the law school. 20 years of that time was spent as a judge advocate. She followed her services with the Department Head of law and assistant professor of law at the u. S. Air force academy. She also served as a visiting professor at stetson universe and has written quite extensively on this subject. And i highly recommend you take a look at her publications shes been highly criticized of the police force handling on the marine corp scandal, and has commented the commander step down. They can do that either by relieving the commandant of his command and by assuring those that abuse the women in court are held accountable. Finally well hear from general jane shwank. He served a total of 39 years. Finally concluding his service as the assistant judge advocate for the dod council. And upon retiring he served in the darm of defense. Hes a graduate of the universe where he earned his degree in 1977. I also highly recommend, ache taking a look at some of his suggestions for improvement. I thought wed start out with general questions and then turn as quickly as possible to questions from the floor and also from me and each other about these top kz. And so judge baker, youve written on this subject. And i guess the question is, at least the initial question, how did the rights of Service Members differ from the rights of nonService Members with respect to difference or is it not difference . Is it just applications of usual standards and all the other aspects of the First Amendment . All right, thank you. Thank you to George Washington universe, all the deans and the deans here for hosting this event. Thank you, john, for having us here. Im obviously stalling while i think about my talking points. There was a time when folks thought that the rights that pertain to members of the military were in some way different than the rights in the constitution. And there was a case in our court that came up with the novel thought that the constitution applied to both members of the service as well as civilians. And of course thats the obvious answer. The question is how, what is different . And its easiest to see why you might want to have different why the constitution might apply in different ways in two ways. One, the text of the constitution in certain instances specifically provides for that, right . It gives particular authority to the congress to provide for rules and regulations for the armed forces. And there are certain provisions in the constitution that expressly exempt the military from their application. At the same time, you can see why if youre looking at the fourth amendment, for example, protecting everyone from unreasonable searches, what is reasonable and unreasonable in military context might be different than what is reasonable and unreasonable in civilian context. The difference in your home compared to a tent or foxhole in afghanistan. You you can sigh why you would have a different interpretation. Same constitution, same amendment, different application. One reason they established the united court of appeals with the armed forces in 1951 was to have a civilian court comprised of civilians that could help reach judgments in how and what matter the constitution should apply in military context. So thats high level background. Now with respect to the First Amendment. The First Amendment applies to the military as well as to civilians. And as we know the amendment regulates protects content and allows some further restriction on time, place, and manner restrictions. But also protects certain time, place, and manner premises as well. However, speech that is permissible in civilian life is not always permissible in military context. And we know this both from sort of a common sense reasoning which is its very hard to run a military if youre allowed to march outside the white house with a sign saying the commander in chief is a fascist or Something Like that. That tends to undermine ones sense that the chain of command is operating successfully. And in parker v. Levi, the key case. And in military context, when theres a Supreme Court case on the military, it automatically is elevated to it status of a seminal case because the Supreme Court takes so few cases. But it also happens that parker v. Levi is a critical case. It can apply in a different manner in military context than civilian manner. During the vietnam context, there was one refusing to train certain soldiers to be deployed at vietnam for which he was charged with disbedience of an order but also for speaking to the soldiers he was training and urging them not to support the United States, to support the military, not to deploy. And this was obviously a verbal expression of his views, ask it was a political expression of his views. And one thing we know from the book of First Amendment law is that the First Amendment is particularly protective of political speech. So here we have political speech in the context of a marine setting. And he was charged with conduct of becoming an officer, and under article 134, he was charged with service discrediting conduct. And this is the important point of this case. In the military under article 34 if you engage in conduct that has a tendency to cause service discredit or that undermines good order and discipline, you can be charged with an offense. Now, to a civilian youre saying thats it, those are the elements of the offense . How do you know whats discrediting . How do you know what undermines good order and discipline . So parker challenged his conviction under the uniform code of military justice both within the military system, and then he appealed to the third, the Federal District court and then the Third Circuit. The Third Circuit found that the article 134 was vague and overbroad because it did not give fair notice to what was credible or not. And then the Supreme Court reversed and basically concluded that because there are different societies, civilian and military, there could be a different standard for First Amendment application. And what saved article 134 from an over breath and vagueness on its face challenge was the fact that our court and the subordinate military courts provided context and meaning to 134 through case law. And of course the manual itself and the code provides additional meaning and context to the article and specifying certain types of activity that would be service discrediting. Are you following . Am i making sense to you . Because this is one where you could go down the rab uthole of 134 for a couple of weeks and not come out or you could come out. Im not saying i agree or disagree with parking v. Levi. And theres some language in parker v. Levi where if you read it, you might say, boy, thats pretty dated or that doesnt sound like the Civil Military leadership today, that doesnt sound like the military i was in. But the key principle you should take away from parker v. Levi is one, the First Amendment applies. Two, it may apply in a different manner. And three, in order to avoid over breath and vagueness concerns as in civilian life, a person needs to be on fair notice on what is protected speech is what is criminal speech. And one of the tensions that the law is facing today and in the context of the internet, for example, is in military context, what does that mean when im and im not at home for this very reason but what was it mean when im at home on facebook talking and im not a member of the military . What is protected, not protected, protected speech and so on . Can i say one thing . Yeah. I do not want to pass this opportunity up. This is a panel about the First Amendment and about what might be prosecuted and what might not be prosecuted. But let us not forget that i would prefer we not have this discussion at all, not just because im up here, but because i think the name of the game is prevention. And you dont get to the prosecution question if you dont have the Sexual Harassment, the Sexual Assault, or the viewing of the child pornography to begin with. And if i had an opportunity to speak to a member of the joint chiefs or to a speak to colonel or any member of the military, and i do not pass up the opportunity to do so, i would not talk about what is prosecutable and not prosecutable. I would talk about what they can do to prevent these things. In my first 15 years on the court i rarely saw a case and i saw many cases. Most of our cases, we choose what we hear and we heard mostly complex cases. Most of them involved complex charges of child pornography. Not always but invariably when there was Sexual Assault involved there was alcohol involved also. Where is the buddy . And then i would ask myself where was the leadership in the unit that didnt let people go out on liberty or go out at home at night without giving them a talk first on Sexual Assault, child pornography and proper use of the internet. Leadership is the primary way you deal with this, and the tone you set in the command will often deal with the tone people set on the internet. You can say dont do it but then if you act in a sexist manner or you act like any number of ways as the commander, thats what people are going to follow. Just like coach can tell someone not to cell at the reves, you tell your players not to yell at the reves and then you start yelling at the reves, guess what the players are going to do . They got the message. Leadership by example. So its great to talk about the prosecuteication of these things but if youre not leading by example, then youre not performing your duty. Thank you. I think youre up. Thank you. I would like to go to judge bakers comments to professor mags and George Washington and to ilustrous George Washington military society. Thank you so much for hosting this important event. Anduled like to piggy bank on judge bakers comments about leadership and that fundamentally the Current Crisis breaks down a breakdown in the fundamental leadership. Ive called not for commandant to step down but for him to be fired. Not because of his personal current handling of the Current Crisis but because the buck stops somewhere. And the largest and often controversial deference of the military justice symptoms and the civilian Justice System, state and federal, in the military its a commander run system, not a lawyer run system. Commanders make the ultimate decision on how to dispose of allegations of misconduct under troops under their command. And therefore commanders are responsible to ensure this disposition decision, the decision ultimately whether or not to prosecute, whether or not to handle this conduct using various means at a lower level, this disposition does not occur in a vacuum. It is various as judge baker pointed out, its very contextual. And the context is the commanders have to ensure the troops are wear of their duties, appropriate training, appropriate emphasis, appropriate when individuals conduct breaks down. Because at the end of the day the fundamental purpose for having this separate system of criminal just s is to ensure good order and discipline. Good order and discipline, however, is not an ends in and of itself. It is a means that has long been recognized long before the United States marines came into being. And i feel the leadership the improper and really deplorable sharing where not consentual sharing of marine Service Members by their female Service Members online a representative from california, jacky spear actually wrote the leader of the marine corp and said this is going on, we need to stop this. This is one more example of that toxic of that toxic culture. You have the commandant of the marine corp at that time responding yeah, questers limit our ability to deal with them and we dont have the appropriate resources. Bringing attention again to this problem, it was specifically active duty marines as well as others posting photos that were originally privately shared of Service Marine corp Service Members, naked photos online and making terrible comments about these women. And yet a proper leadership reaction was just not forthcoming. Today because theres public attention to it, suddenly we be a task force thats been appointed to look at this. Theres been a message from the command want of the marine corp strongly condemning this type of behavior. The marine corp is talking about incorporating vignettes. This is what you dont do, and hey commanders. And the leadership is not just kmapders. The leadership as judge baker pointed out, is also that sergeant. The leadership comes down to lowest level. But, hey, leaders of the marine corpia need to ensure your troops understand this is wrong and you need to have accountability. Where was that in 2013 . It was lacking. In 2008 secretary robert gates, the secretary of defense relieved of command the chief of staff of the air force. Thats the air force equivalent of the commandant of the marine corp. And he fired the secretary of the air force. Why . Because of lax nuclear standards. No one was hurt. There was no nuclear explosion, but were there lack standards . Absolutely. Did those lax standards appear clearly on the watch of those two individuals, no, but accountability means the buck stops somewhere. And by firing those two individuals secretary gates sent a very powerful message to every commander in the United States air force that has anything to do with nuclear assurety that the air force, the department of defense, this nation would not tolerate failure of command, failure of leadership, failure of mission effectiveness. But we have a similar problem today. So in the words of the current secretary of the navy, sharing private naked photos of private Service Members without their consent is quote,ic predatory behavior, quotes, that involves agregious breakdown of the military. And per the current commandant of the marine corp on his watch has metastasized those who serve must be held to the highest standard. We cant win wars if the marines dont trust one another. Good order and discipline as a military of effectiveness. As judge baker eloquently outlined for us, the Supreme Court while the u. S. Supreme court has recently declined to create new bright lined categories of protected speech has long recognized that certain types of speech have enjoyed less rigorous protection as a historic matter. Though they may not be explicitly recognized as such sharing naked photos without their consent is just that communication, just that speech that warrants less protection. And as theyve frequently manufacturesed using the Supreme Courts famous language from park, v. Levi the law has recognized it is a separate society separate from civilian society. That is because the primary business on the military is to fight and be ready to win the militarys wars. Quote the different character of the military community and the military mission requires a different application of these. Speech may months undermine good order and discipline within the military. And if it does it is constitutionally without protection. So sharing such naked photos of Service Members online, making comments such as this woman should be raped, we should all tape her, look this is her tape face regarding identifiable Service Members is a clear example of conduct that causes such a break down and simply lax protection. I would argue not only in the civilian world where 35 states have criminalized such behavior but in the military even more so. And it should be punished accordably. And leaders who fail to take action should be held accountable as well. And id love to echo judge bakers very accurate characterization of article 134, the uniform code of military justice. Its that catch all position that allows the military to criminalize behavior that wouldnt perhaps be criminal in a civilian setting but it would be on the military because of its effect, the prejudicial effect. Do i believe some of that behavior can be accurately identified and punished under article 134, yes. But its much more difficult. And as judge baker said, its arab uthole. Were going to go to alice in wonderland and fall through that rab uthole. Why not make it easier for commanders to hold folks responsible and train on this issue to make it a stand alone issue that criminalizes nonessential pornography that is revenge porn. Interestingly last year jacky spear from california, the same representative, same congressman that brought to the marine corp in 2013 this revenge porn was occurring, she introduced a federal bill that criminalize it. And the senator of arizona introduced a bill i have not been able to find the language of that bill, that would criminalize nonconsensetual photos. To give them fair notice their conduct is criminal and make it easier the commanders to train and to bring individuals to account when they cross that red line. So id love to answer questions later on. Id love to thank everyone on the panel and turn to general shwank. Good evening, everyone. Let me start by saying this will be a lot more productive the more dialogue we have. As been obvious so far and ill no doubt go the same path, we can talk forever up here. And its more important we talk about things you guys want to talk about. So i encourage you when theres breaks in the action, if you have a question just raise a question and well get a dialogue going. One of these things i joy for these sessions is i learn a lot from my colleagues. In fact i sort of looked at the three of us and thought two of them are here with the academic rigor youd expect from a an Academic Institution and im here for the comeadic relief that you wouldnt get from an academic. Theres only one person i will not take questions from and thats in the third table back. He was one of the guys who couldnt get a job like judge baker and ended up as a chief suggest of the of armed forces. It is nice to see. Let me just say ipgeneral about the way to approach this kind of situation in a learning mode, in an open to understanding and thinking about things in ways different thannia do it now. Clarence darrell was a famous lawyer 100 years ago or thereabouts. And he had a saying i stumbled in my misspent youth and it dawned on me it was a great way to approach life. So ive used it as sort of a guide. And i offer it for your consideration to see what you think. But the saying was every day is blessed when you learn something new. And every day is doubly blessed when the new thing you learned changes an opinion you had the day before. So i look forward to coming out of this session as a doubly blessed day, and thats why i wont take questions from him. Okay, on this issue of free speech, just imagine were a bunch of civilians working from some private company and we mated the boss and all said disparaging things about him every lunch break, day after day, have we committed a criminal offense . No, we have not committed a criminal offense. I mean thats protected speech. Is that a firing offense, if the boss finds out it could be a fire s offense but not a criminal offense. What happens in the military when that happens . Bell, congress ruled along took provisions of substantive criminal law from before there was a ucmg and adopted it into it. So we have a disrespect statute both for officers and for different ones enlist said. So if youre sitting around and you decide to say disparaging things about me as your mutoon commander, then guess what, youve just committed a criminal offense and something could happen to you. In the write up when he gets down to talking about whats called for courtmartial, when hes talking about disrespect, it has four words for example, as your platoon commander, it would work out for me. Truths is no defense. So the fact youre making truthful statements about your platoon commander doesnt matter. Its the disparaging comments. And why is that the and its what judge baker and the professor talked about. The proficiency of the military depends on large order on good order and discipline. So without that youre not going to have efficient military. So the big question is what is good order and discipline. And thats command, and that disrespect has been criminalized. If youre on active duty, youre on active duty 24 hours a day, 7 days a week from the term of your enlistment or the term youre on active duty. If youre on reserves youre only on active duty when youre ordered to active duty. Guess what, the rest of the time when youre at home ask work on your civilian job if you screw up, theres none criminally, but you could still be held accountable. We had an officer was not on active duty, on reserves, was really upset about people in the lefthand lane going slower, and so said something to them and they didnt appreciate it. And the next thing you know they got in a fight. Okay, theres no criminal jurisdiction by the marine corp, but there was that administrative hook into the person. And he ended up going before a board to determine whether or not he should remain in the marine corp. Okay, so the nexus between you as a person and the marine corp, the army, the navy, the air force, coast guard, whatever service youre in, is perpetual as long as youre in. It doesnt matter if youre on active duty or not. Let me say a few things about the Supreme Court and the military. I think judge baker did a good job covering that. One of the quotes from one of those cases that the Supreme Court had in the military, its not the squlaub of the courts to run the army and the navy and the military. That was a director message to the courts to give great deference to decisions made by the military on military matters. And i can tell you from my experience that when youre talking to the department of justice about defending cases, theres always a big discussion about this is not such a good fact pattern here, how much of a deference are we going to get on this matter from the courts . Because we know were going to get some. The question is how much. And at times its been quite expensive and the courts have been criticized for beg too deferential. The other thing ill say about the Supreme Court, there was a Supreme Court case once had a military case and they were talking about how, well, youd think they were normal civil dwrns wed do a. But because theyre military were going to do not a and they were trying to come up with another analogy, another category of society of people that would not have a not a answer. And they stumbled upon it, criminals. Youre very unique and privileges, youre right up there with the criminals as far as the Supreme Court goes. But its just another indicator of the Specialized Society that is the military and the unique needs of the military. As far as Current Issue with free speech thats on the table today, i think all the panel has obviously agreed that free speech, the First Amendment does apply to the military but not to the same scope as it does to civilians. Weve talked about it with professor and whats being considered on the hill and congress is what further criminal laws, if any, do we naed to address these new fact patterns that may or may not be adequately covered by existing law . So that analysis starts off with what are the facts that we have in these individual cases . And sometimes as the professor said, the stuff is nonconsentual, sometimes its a selfie taken by i think the most recent marine corp report said that of all the pictures theyve recovered, half of them were selffaez that were voluntarily taken and sent to somebody else. So you look at the different fact patterns, that fact pattern the nonconsentual fact pattern, where i take a selfie, send to you guys and say please dont forward this any further imim only giving this to you. And the fact pattern where i dont do that. Im just sending you a picture not saying what you may or may not do with it. So you apply the facts, you look at the existing law, does it cover it or not. You find the fact patterns that are not covered and you say to your yourself should they be . If you come to conclusion they should be covered, now this whole progression gets harder the longer it goes. Youre in the next to hard part and that is should it be . So youre looking at whats the language, if it should be what language should i use . So you start messing around with the language. And if you mess with the language, what are you looking for . Unintended consequences. Number one, youre looking what can cover the problem and what can happen with this language that can happen that i didnt intend to happen so the law starts covering stuff you didnt want covered. So the law starts having unexpected conskwnz. We are really good, the department of defense people by and large are really good at solving problems when they jump up and hit them in the head. Theyre really good and finding a solution to that problem. What theyre not so good at is figuring whats so good about that solution. So we sometimes end up being in a slugsz. So problems, fixed, problems with the fix, new fix number two, whoops, problems with that. In business, thats the cycle of constant improvement. Thats how you get better. You cant get to perfect. And whats the old say, perfect is the enemy of good enough. You want to take care of the problem the best you can and then move on. But you do need to spend time not just problem solution but also is this the solution we can come up with in the time we have . And so once you do that, then you have a law that you think solves a problem, a law you think doesnt have too many unintended consequence, and law you think is worth going forward. At that point we need to remember the fact that freedom of speech is the First Amendment. Its a fact important to the Founding Fathers and just as important to Service Members as it is to a civilian. So anytime i have these questions of freedom of speech, freedf of religion, freedom of association issues, we had a lot of them in the department when i was there, is how much do we really want to restrict that freedom . How important is the military need . Now, for me the situation with their derogatory and demeaning text with words and the forwarding of nude photos and the other, thats pretty important to me. And to me if you can come up with a solution to that that is neroli scoped to take care of that problem and not otherwised cover, i think thats worth considering. I think we should wrap up and take some questions. I told you we would drone on and on. I said 8 minutes, and they said two. Why dont we take questions from the floor. And i think one question you might pose hypotheticals. Just thing of anything you might find on the interthet that a military might pose, a civilian member might pose. Anyway, i open up to questions on the floor about the First Amendment and harassment on the internet, what laws we need to have. Yes. Im an active duty marine officer and a studentats universe of Washington College of law. Im here today in my personal capacity alone. So united state v. Wilcox stands for the proposition that in order to be prescribable in a military context, speech must have rereasonably director in military environment. Thats the workplace connection in this particularly environment. And the wilcox giveans example that does not meet this standard. There a Service Member posted racist speech online. Perhaps, though, the most important sentence in that case which was decided in 2008, was that the case had wound through the military Justice System for eight years. So moors law stands for the proposition that transistters multiply and double every two years. So my back calculation tells us todays computers are more powerful than the ones wilcox used. My question is if wilcoxs facts are not enough, what sort of facts should we look for to make sure its enough to be prescribable. And is the Evolution Technology alone enough . The interesting proposition for judge baker since judge baker was there when they said it. So you have a Second Opportunity to swing at this one. I had a sneaking position wilcox would come up. First, lets put together your tool kit. Your tool kit for addressing these issues starts always with the constitution itself and the text of the constitution and the bill of rights. Second, in the military context, you need to have parker v. Levi which is 1974. I described the case briefly before. Its 417 us 4733. And then the kit will conclude with us v. Wilcox. And then you would want to have the text of the article 134 and so on. There are three types of cases, First Amendment cases that came before our court which tried to get at how does the First Amendment apply in military context . And the first type of case was a i dont want to say one off, but unusual circumstances. My first case on the court involved a threat to the life of the president of the United States by a military inmate, someone who was in detention and therefore was not able to in fact carry out the effect if he intended it at all at that particular moment. And theres a whole doctrine in the First Amendment olaw on threats and whether a threat is a true threat or not. Ask it happened to the president of the United States for obvious reasons and perhaps theyre outlined in the opinions are dealt with in a manner different than other threats. But the basic issue there is when does a First Amendment right to make threats translate into a true threat that is criminal by nature . The vast majority of the First Amendment issues im sorry to say came up at our court, notserry to up hold the constitution but sorry for the context. Which was enlight of the ashcof case and the superior courts interpretation of the child pornography protection act, which is the possession of pictures of children that is either pornography, erotica, or pictures of children, when is that First Amendment protected as it might be in the civilian context pursuant to ashcroft. And when did it determine it was constitutionally protected for civilians to view or possess . And there are many cases on our court from our Court Addressing that issue. And creating a habit, i tended to be in the dissent. And wilcox is the third type of case, which is new to courts. Its not new to the world intersection of the First Amendment with the internet. And the seeming freedom one has on it internet to do things they might not do in person and or when theyre identifiable by name and their personage. And wilcox involved an Army Paratrooper who was posting a series of facts one reason the case took a long time not in our court but in general bullet he was charged with a number of offenses. And when the day was done there was only one offense that came before our court. And that was the officer of service discrediting conduct under article 134 for posting various messages in chat rooms supporting White Supremacy and various lines of white supremaciari supremacy arian nationtype agenda. So the question posed was was the service discrediting. Most of the service cases that have in our court really explored the dealt tu, the nexus is good order and discipline cases. So it was at least easy to articulate in parker v. Livee why deciding people not to deploy in vietnam would involve good order and bis pln. Its sometimes harder to see how posting something on internet would be service discredit mgch and its not just service discredit its would have a tendency to be service discrediting. You dont actually have to prove it was service discrediting. In fact, part of the thing is when you post something on the internet, if it is discredding, it probably isnt military. In fact wilcox was charged with service discrediting thearian nation propaganda. And most people would assume thats not discrediting. Whats discrediting is he was associated with the army. When he posted he said im an Army Paratrooper. Im at fort brag. The risk was members of the public would see that is go this is the argument. Theyd go my goodness the army is full of white supremests or i dont want my son or daughter to go into the army there are people like that in it. The issue on our court then was was this protected speech. And the majority by the way, youre being very plight. The the case was 41. And im not very good at math, but i know when im an army of one. And one thing i do believe is judges speak with their opinions and not with armies of speeches. What i dont think is fair game is if you want to know what my views were in wilcox, you should not read wilcox. What i dont get to do is then characterize my position as this glowing wonderful thing and mischaracterizing the majorities position. It has problems of its own without my mischaracterization. But here is the issue. The majoritys view was and its fair to say there are two questions. Which was there evidence legally proficient to prove to prove discredit. Second, if there was evidence legally efficient to demonstrate that offense was it otherwise protected by the First Amendment . And the split between the ajort and the disrupt was first the aadminister jot applied the good order and discipline case, which said drawing back to brandon berg and the Supreme Court dennis and shankliner cases there had to be a director and palpable nexus between the speech and the harm that people were trying to prevent, the harm to good order and discipline and so on. And the majority could not find the director and palpable link to the postings that were clear clearly raciest arian but clearly protected in our society. This is unpopular political speech. But without question First Amendment protected political speech in civilian context. But the first question is there sufficient and palpable link to military harm. And they said no. And it really hinged on whether you found that link from the majoritys standpoint, whether you found that link in the persons in wilcox holding himself out as an Army Paratrooper. And i think part of the difference between the dissent and the majority was the majority said he pruported to be an Army Paratrooper. And the diant was he didnt pruport to be. He was. And had reason the case was before our court at all was a person in the public saw his postings and said that guys an army guy at fort brag and a paratrooper, i better let the army know about these postings. So that seemed to suggest to me there was a nexus right there. So i went through, and i can do a dramatic reading if you like. Well, i think we can leave it to the or we can stipulate, just stipulate by show of hands i was correct. I see everybodys in agreement. We have another judge from the court. Were not taking questions from him. No, what i would do is encourage you to read the opinion, the full opinion. Read from the back or the front. Its what you have to work with at this point. And i do think in party what reason you write the dissent, theres different kind of dissent. But one reason you make dissent is to clarify what the difference is. If i just said, okay, or if i said well, i dont agree with them, i affirm the conviction, thats not going to help you focus on whats the granler distinction is. And i said we should apply strict scrutiny a clear and presence test. You dont have clear and present danger with something thats expected to get there. So how else would you apply the First Amendment . You look to the strict scrutiny compelling street test. And i found a compelling interest in the fact that the army had an interest in obviously discouraging and preventing racist gangs from being in the army, right . That clearly was a problem, and it is a problem. Two, it would discourage recruitment. And then third was public support for the military in time of conflict. And i said those are i found them to be compelling interest. You dont need to. Thats part of the analysis. And then i said would it be nireoily tailored, how would you apply this and tailor this . And i said this would come from a case law and this was not a fact where you were punishing someone who was a racist but punishing someone who held themselves out as an Army Paratrooper racist at fort brag. I think we should allow the professor. We only have about 1 hour, 15. So we should answer quickly and get to the questions before we run out of time. Its interesting its interesting judge baker because it just highlights the difficulties with 14 now where you might not necessarily the other clear precisions of the ucmg, article 88 contemptious words against the president , et cetera, conduct of becoming an officer. And of course theres still First Amendment concerns there. But the gravman of the offenses, what is the harm of the offense, what is the harm of the conduct that were trying to criminalize and therefore deter, right, and prevent through punishment . And the harm for certain types of words like Sexual Harassment and certain types of sharing without the consent of the person whether or not they took it consentually or not, the harm is that invasion of privacy. That invasion of privacy in the military is ampified when its one Service Member against another, because of the deletterious affect on the trust. So that leads me back to is it protected speech anyway . Are those kind of things such as nonconsentual sharing of an otherwise photo protected speech, because if its not precced speech according to wilcox majority, anyway, you dont have to go down through this rab uthole. And i would argue thats where we are in the civilian world, whether or not theres a First Amendment, the First Amendment idea of free speech, the interest of publishing someone elses or distributing or sharing someone elses naked or partially naked photo with others, whether that interest and value of sharing it, out weighs the individuals privacy interest. I would argue these laws or the current laws in this category speech has been less protected because of the purely private significance, the privacy issues that are greatly significance such as the case of brett v. Mikeles. But lower courts have upheld claims of cases with nonconsentual sexual videos. So that holds another area which i wish we had time for. I want today say three quick things. Sure. And you caught on im a microphone hog, and im used to asking questions. But three quick comments. One, its clear that whatever the case is, and wilcox was a case involving what is traditionally viewed as political speech and therefore raised specialized sensitivities. Its incumbent on those debating these issues to be clear what the compelling interests are. And in most cases either people havent read the case law or they dont have the evidence. But put the evidence on that shows the compelling interests and be clear what it is, whatever side of this youre on. Two two, ive lost my train of thought oh, two, judges in courts have a special responsibility, a heightened responsibility to up hold and defend the constitution. Judges do more of the up holding than the defending part in the military one hopes. But 1 thing i like about in the since i had my fun as a dissenter is that it was all about what courts do and do best which is uphold the constitution and courts will protect the First Amendment. Because who else will if not courts . Right . Youre basically protecting the right of people to be racists or hold unpopular views. So one should never frown on a court looking at the First Amendment issues with care. It means you should speak to them. Third, there was a time when most of the judges federal judges in the United States had served in the military. 75 of the judges in the 50s and 60s had served in the military. World war i and world war ii. The brown court, a majority of the members of the brown court, a majority of the members of the brown court were military veterans. It is only today that you have a federal judiciary that is largely comprised of people who never served in the military. There are lots of different ways to be diverse and lots of Different Things that go into a federal bench. That gives its strength and diversity but one of them i believe is military service. This is an area where having military service is particularly important. To understand the intersection between the First Amendment and military life in society. So theres nothing i can do about it. But i would point that out, i think thats a significant thing. Of course some of our greatest judges and justices have been veterans and have been informed by their service in the military including four of the eight great civilian judges. John minor wisdom and skelly wright. And so dont thats just something i couldnt leave in my bag. We have time for one more question. Oh, come on. There we go. Thank you very much. Im here in my private capacity today as well. We talked about prevention and the duty on leadership and then theres also perhaps attention with the unlawful command influence. And i wonder in terms of prevention what obligation to the leaders do they have to engage in that and why is that north a greater part of the discussion when we look at fashioning laws after things have happened when this just keeps on going and going and going. Thank you. You didnt get an opportunity in the last question. Maybe this is an appropriate one for you. I think your point about prevention dovetails with what judge baker started off with when he said he wished we didnt have to talk about court cases because we need more prevention. It is also one of the major emphasises of the commandant when the most recent problem for the marine corps broke out. When he started to form task forces and rewriting the policy, when he required everybody in the marine corps to sign an entry in their Service Record book that they have it explained to them, so when they screw up as inevitably somebody will, they cant get out by saying, well, no one told me. Because it will be right there. They were told and the policy was clearly set forth for them. So i think theres been a lot of emphasis on that. In the whole Sexual Harassment arena theres increasing efforts to train people, teach people, educate people, inform people, and the results are mixed. So i guess my attitude is, prevention is essential. We must always have good training, we have to vary the training. We have to look for better ways to do the training as judge baker said, you have to remind your people last summer on one of the advisory committees we travelled around and we kept running into commanders who said they worry about training overload and that people would show up for Sexual Harassment training, and it was the third year in a row they had gone to three times a year. And they didnt pay any attention. They just walked in, sat in the chair and got nothing. Well, if thats your training then thats not effective training so you havent had training. I mean, they may have sat there for an hour and checked a box, but you havent had training. You have to look for better and more direct connection kinds of training to make it meaningful and then youll still have people screw up. I think thats my attitude on that one. One before we wrap up, on the wilcox case remember thats a criminal case. Thats a criminal side of things and theres the administrative side. My experience is on racists and people who are part of white aryan supremacy and whatever, overwhelmingly like in my experience 100 of the cases were handled administratively. I mean, the attitude was we dont want that person in the marine corps so how do we get rid of the person . If the person was indeed, you know, a racist. And so theres actually a dod directive of a regulation that talks about dissident and protest activities and talks about being a member of a gang or a racist group or what have you and what you can and cant do. Which talked about First Amendment theres a First Amendment issue. Do you have a short thing . Were close on time here. Short, but to the point. So training doesnt have to prevention is vital. Training doesnt always have to be in the formal situation. As general Martin Dempsey once said, the chairman of the joint chief of staffs, he views some of the Sexual Assaults are directly linked to the culture of intolerance in women and because of their merit, and theyre not like that because of their gender, some of this culture of intolerance will be alleviated. Thank you. Well, at this point we do have to conclude. But looking at the table not only do i see three brilliant and educated speakers but i see three speakers who have cans and bottles and no glasses. So i wish to award each of y you oh. A glass. Next time youll be able to pour your drinks rather than drink them out of the bottle. Thank you. Thank you again to the military law society and to the subcommittee. And thank you to our speakers. Lets give our speakers a big round of applause. Thank you. Tonight on the communicators a look at small town and Rural Broadband with shirley bloomfield, ceo of the royal broadband association. She talks about her organizations desire for Rural Broadband expansion to become a greater priority within the trump administration. Shes interviewed by Communications Daily senior edit or the, david count. What would you say your biggest priorities are either in congress or at the fcc . How do we make sure that broadband is considered part of any infrastructure package that is considered. I look at it and i think, you know, superhighways are the future, its really about broadband. Its the ability to do the teleworking to bring jobs and commerce in. Public safety, education, telemedicine, all of the things that keep our country robust can really be derived from broadband. How do we make sure that policymakers see infrastructure beyond just a road and a bridge . Watch the communicators tonight at 8 00 p. M. Eastern on cspan 2. We need physicians and other Health Professionals who are technically competent,er who who are life long learners, who are team leaders, consensus builders, indeed, Business Managers and who can share power constructively and gracefully. I would just hope that you would understand what this responsibility means. That it means reaching out, it means caring about more than yourself. It means asking about we rather than me. Have the fortitude to do the right thing, not the easy thing. Dont be somebodys lap dog or sycophant. Have the courage to speak the truth even when its unpopular. I want to talk with you about being open to the unexpected. About making room for the improbable and the unlikely. Past commencement speeches from the cspan Video Library and join us as we hear from politician, Business Leaders and white house officials. Starting at 8 00 p. M. Eastern on saturday, may 20th, the 27th, the 29th memorial day. And june 3rd on cspan and cspan. Org. Transportation secretary elaine chao announced monday that President Trump will be releasing his infrastructure plan in the coming weeks. She spoke at an Infrastructure Forum in washington. Other speakers include trade association leaders, manufacturing executives and they discussed the importance of Public Private partnerships. From the u. S. Chamber of commerce, this is just under three hours. Good morning, ladies and gentlemen. Good morning. Im suzanne clark, senior evp here at the u. S. Chamber and i am delighted to welcome you here today. Now, when you have my job, you get to be in this room and say that sentence a lot. But i actually mean it today or mean it more than usual. Not just because youre a charming audience, but because i started my career at the American Trucking association and y