The nation’s highest military appeals court has upheld the court-martial conviction of a Missouri man whose racist-sounding diatribe against President Barack Obama raised tough free-speech questions.
The former soldier, who at one point claimed to have connections to Missouri’s Ku Klux Klan, forced a closely divided U.S. Court of Appeals for the Armed Forces to clarify the law governing speech by members of the military. Soldiers, in sum, face more restrictions than civilians do.
“The right of free speech in the armed services is not unlimited and must be brought into balance with the paramount consideration of providing an effective fighting force for the defense of our country,” Judge Kevin A. Ohlson noted.
In its 3-2 decision released Friday, the military appeals court rejected defense arguments that the First Amendment protected Eric L. Rapert, of Sikeston, in southeastern Missouri, when he railed against Obama on the night of the 2012 election.
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It is patently evident that (Rapert’s) speech runs directly counter to the ethos of the United States armed forces.
Judge Kevin A. Ohlson, U.S. Court of Appeals for the Armed Forces
In ruling against Rapert, the court also distinguished the Uniform Code of Military Justice from federal law, whose ambiguities prompted the Supreme Court in 2015 to dismiss the conviction of a Pennsylvania man who’d posted threatening-sounding statements on his Facebook page. The military court found that the military justice code already required a determination of Rapert’s state of mind, something the U.S. Supreme Court said was lacking in the Pennsylvania case, where the defendant argued his postings were fictitious.
“The (military’s) requirement that the government prove that an accused’s statement was wrongful because it was not made in jest or as idle banter, or for an innocent or legitimate purpose, prevents the criminalization of otherwise innocent conduct,” Ohlson wrote.
Rapert was an Army enlisted man with the rank of specialist who was serving in Hawaii at the time of the 2012 presidential campaign. On election night, he voiced increasing dismay about Obama winning re-election.
“Specialist Rapert was confounded by the fact his home state could vote for someone other than (Mitt) Romney, given how important gun rights are to Missourians and the favorable rating Missouri’s laws received from the National Rifle Association,” defense attorney Katherine L. DePaul wrote.
Witnesses later said Rapert had voiced anger that “that n----r won this election” and then made what sounded like threats.
“I might have to go back home . . . and break out the KKK robe that was handed down to me by my grandfather and go put one order up and make it my last order to kill the president,” Rapert declared, one witness testified.
Rapert subsequently told the Secret Service that his statements were “completely meant as harmless jokes,” and the appeals court noted that “ultimately, the inquiry uncovered no evidence that (Rapert) or his family had any connection to the Ku Klux Klan.”
In the Supreme Court’s 2015 decision in the case out of Pennsylvania, defendant Anthony Elonis had likewise argued that his violent-sounding Facebook postings were fictitious, like rap music lyrics. He prevailed in an 8-1 decision, with Chief Justice John Roberts Jr. noting the state-of-mind requirement that “wrongdoing must be conscious to be criminal.”
Unlike the federal law used against Elonis, the Uniform Code of Military Justice’s provision on “communicating a threat” includes an element that the “communication was wrongful.”
Interpreting this, Ohlson said Rapert’s trial judge, in assessing the element of wrongfulness, “was properly evaluating” the defendant’s state of mind. This avoided the “infirmities” in the federal law, the judge wrote.
In dissent, Judge Scott W. Stucky wrote that in the military justice code, “wrongful” previously has not referred to state of mind but has been predominantly defined to mean either “without legal justification or excuse” or “contrary to law, regulation, lawful order or custom.”