United States v. Negron, 60 MJ 136 (depositing obscene matter in the mail is not specifically enumerated in the UCMJ as a criminal offense, but it is punishable under Article 134, UCMJ; it is clear that the focus of this offense is on “obscene” words; whether something is obscene is a question of fact; obscene is synonymous with “indecent” as that word is defined for indecent language under Article 134, UCMJ, in MCM, Part IV, para. 89.c; the matter must violate community standards of decency or obscenity and must go beyond customary limits of expression).
(in the providence inquiry into the obscene mail offense in this case, the military judge erroneously used the definition of “indecent” from the offense of indecent acts with another rather than from the offense of indecent language; this fundamental definitional error rendered the plea improvident; moreover, the military judge’s questioning of appellant using primarily leading questions about this offense rendered the providence inquiry fatally deficient).
(the test for obscene language at the time of appellant’s court-martial, set forth in French and applied in Brinson, was whether the particular language was calculated (i.e., intended or planned) to corrupt the morals or excite libidinous thoughts; in fact, the clear and unequivocal holding of Brinson was that only language calculated to corrupt morals or excite libidinous thoughts was obscene; in the providence inquiry in this case, the language used by appellant was clearly calculated or intended to express his rage, not any sexual desire or moral dissolution; thus, under the narrow definition of indecent language applied in Brinson, appellant’s language was not obscene).
(regarding the definition of “indecent” applicable to a charge of indecent language and synonymous with “obscene,” MCM, Part IV, para. 89.c presents two different definitions to measure speech that may be a crime, dependent on the context in which it is spoken; we adopt and will apply this plain language of the Manual prospectively to cases tried after the date of this decision).
language punishable for the offenses of indecent language and
obscene matter in the mail, the President has required that the
conduct of the accused be to the prejudice of good order and discipline
armed forces or be of a nature to bring discredit upon the armed
part, it is this element of these offenses that filters out from
language that is colloquial vocabulary and may be routinely used by
members; as these offenses touch on First Amendment free speech issues,
Government must always exercise care in both charging and proving these
offenses to establish that the factual predicate for these offenses is
the ambit of the narrowly limited classes of punishable speech).