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 set