United States v. Smith ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Samuel H. SMITH, Airman First Class
United States Air Force, Appellant
No. 23-0207
Crim. App. No. 40202
Argued January 24, 2024—Decided November 26, 2024
Military Judges: Rebecca E. Schmidt (arraignment and
pretrial motions) and Colin P. Eichenberger (trial)
For Appellant: Captain Trevor N. Ward (argued);
Daniel Conway, Esq. (on brief); Major David L. Bos-
ner and Scott Hockenberry, Esq.
For Appellee: Captain Vanessa Bairos (argued);
Colonel Matthew D. Talcott, Lieutenant Colonel
James P. Ferrell, and Mary Ellen Payne, Esq. (on
brief).
Judge HARDY delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS,
Judge MAGGS, and Judge JOHNSON joined.
_______________
United States v. Smith, No. 23-0207/AF
Opinion of the Court
Judge HARDY delivered the opinion of the Court.
A general court-martial convicted Appellant, contrary
to his pleas, of one specification each of breach of the peace,
aggravated assault with a dangerous weapon, wrongful use
of marijuana, and two specifications of communicating a
threat in violation of Articles 116, 128, 112a, and 115, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. §§ 916,
928, 912a, 915 (2018). Appellant’s breach of the peace con-
viction stems from aggressive comments that he made off
duty and out of uniform to an employee at a gas station far
from base. Before this Court, Appellant challenges the con-
stitutionality and legal sufficiency of that conviction.
We hold that Appellant’s conviction under Article 116,
UCMJ, was unconstitutional as applied and must be set
aside. The statements Appellant made to the gas station
clerk did not fall within any of the unprotected categories
of speech and were thus protected by the First Amendment.
The judgment of the United States Air Force Court of Crim-
inal Appeals (AFCCA) is reversed as to Appellant’s convic-
tion under Article 116, UCMJ.
I. Background
In January 2020, Appellant and his friend, AL, arrived
at a gas station near Las Vegas, Nevada. Appellant parked
his car and entered the gas station to buy cigarettes while
AL waited inside of the vehicle. AB, who was the cashier at
the gas station that night, saw Appellant enter the store
while she was outside taking a work break.
Appellant attempted to purchase cigarettes from the
other cashier working that night, but she was too young to
make tobacco sales and asked AB to come inside and assist
Appellant. AB came back inside to help, but Appellant was
apparently displeased with the delay and began to rant
about AB’s lack of professionalism. Micky, another patron,
reacted to Appellant’s angry remarks by responding “don’t
yell at [AB] like that, she’s doing her job and she’s damn
good at it.” Appellant allegedly turned toward Micky and
told him, “stay out of this man, you don’t want to get hurt.”
The tension between Appellant and Micky did not escalate
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into a physical altercation, and Micky subsequently exited
the store. Appellant also left the store shortly thereafter,
but no evidence in the record suggests that he saw Micky
again or communicated with him any further. After her in-
teraction with Appellant, AB also went back outside to talk
with some of her family members who had come to visit her
at work.
Upon leaving the store, Appellant walked back to his
car where PF, another gas station patron, was waiting to
fuel his truck. When PF asked Appellant to move his car
out of the way so that he could access a gas pump, Appel-
lant complained to PF about what had just occurred inside.
PF testified that Appellant was “disturbed” and “angry”
and used profane language when describing the incident.
Then Appellant got back into his car, drove it towards the
entrance of the store near to where AB had congregated
with her visitors, and yelled out of his window for AB to
“tell that pretty boy mother f[***]er in there he needs to
watch his a[**], there are some hard hitting guys in the
street” (or words to that effect). Micky—the apparent sub-
ject of Appellant’s statement—had returned inside the gas
station and was out of earshot. However, Appellant’s state-
ment was made directly in front of AB who testified that
she responded by chuckling at Appellant and telling him to
get out of her parking lot. At that point, Appellant began to
pull a firearm from his side and point it at AB. AL quickly
intervened and pushed Appellant’s arm down, and they
sped out of the gas station in their car.
In addition to other charges related to brandishing his
loaded handgun, driving recklessly, communicating sev-
eral threats, and wrongfully using marijuana, Appellant
was also charged with breaching the peace in violation of
Article 116, UCMJ. In relevant part, the charging language
for that specification stated that Appellant “cause[d] a
breach of the peace by using the following provoking lan-
guage toward [AB], to wit: ‘Tell that pretty boy in there that
there are some hard hitting people in these streets, and he
better watch his back,’ or words to that effect.” A panel of
officer and enlisted members convicted Appellant of
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Opinion of the Court
breaching the peace, and the military judge sentenced him
to one month of confinement for that specific offense.
As relevant to this appeal, Appellant challenged the le-
gal and factual sufficiency of his Article 116 conviction be-
fore the AFCCA. United States v. Smith, No. ACM 40202,
2023 CCA LEXIS 196, at *43, 2023 WL 3294709, at *19
(A.F. Ct. Crim. App. May 5, 2023) (unpublished). Appellant
raised multiple arguments, including that his charged con-
duct was constitutionally protected speech. The AFCCA de-
nied relief, concluding that a rational factfinder could de-
termine that the Government proved the elements of the
Article 116 offense beyond a reasonable doubt. Id. at *54,
2023 WL 3294709, at *19.
First, the court held that Appellant “ ‘caused or partici-
pated in a certain act of a violent or turbulent nature’ ”
through his loud and profane statement to AB. Id. at *56,
2023 WL 3294709, at *19. In doing so, the AFCCA did not
look at Appellant’s words in a vacuum, but considered the
context in which they were made—especially in light of his
incident with AB and Micky in the gas station and his act
of brandishing a firearm. Id. at *56-57, 2023 WL 3294709,
at *19. For similar reasons, the AFCCA also concluded that
a rational factfinder could find Appellant’s language un-
lawfully disturbed the peace. Id. at *57, 2023 WL 3294709,
at *20. Specifically, the court determined that Appellant’s
language—when viewed in context—disturbed the public’s
entitlement to tranquility, peace, and good order. Id., 2023
WL 3294709, at *20.
The AFCCA also discarded Appellant’s argument that
“the absence of ‘fighting words’ in the charged language”
made his speech constitutionally protected. Id. at *60, 2023
WL 3294709, at *20. The court decided that fighting words
are not the only category of prohibited speech because
“there are categories of communication and certain special
utterances to which the majestic protection of the First
Amendment does not extend” because such words “are no
essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the
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social interest in order and morality.” Id. at *60-61, 2023
WL 3294709, at *20 (internal quotation marks omitted)
(quoting Bose Corp. v. Consumers Union, 466 U.S. 485, 504
(1984)). The AFCCA explained that Appellant’s “pretty
boy” threat “was not an essential part of any exposition of
ideas,” had arguably “no social value,” and its benefits, if
any, did not outweigh society’s interest in order and moral-
ity. Id. at *61, 2023 WL 3294709, at *21 (internal quotation
marks omitted) (citation omitted). Thus, the AFCCA con-
cluded that Appellant’s language did not merit constitu-
tional protection. Id. at *62, 2023 WL 3294709, at *21.
We granted review of the following issue:
Whether Appellant’s conviction for breach of
peace, based exclusively on speech, is legally in-
sufficient and unconstitutional where, inter alia,
all parties agree the charged speech did not con-
stitute “fighting words.”
United States v. Smith, 83 M.J. 479 (C.A.A.F. 2023) (order
granting review).
II. Standard of Review
This Court reviews issues of legal sufficiency de novo.
United States v. Richard, 82 M.J. 473, 476 (C.A.A.F. 2022).
Whether a statute is constitutional as applied is also an
issue this Court reviews de novo. United States v. Goings,
72 M.J. 202, 205 (C.A.A.F. 2013); United States v. Ali, 71
M.J. 256, 265 (C.A.A.F. 2012). There is “a presumption
against the waiver of constitutional rights, and for a waiver
to be effective it must be clearly established that there was
an intentional relinquishment of a known right or privi-
lege.” United States v. Sweeney, 70 M.J. 296, 303-04
(C.A.A.F. 2011). For these reasons, when an appellant al-
leges for the first time on appeal that his conviction was
unconstitutional as applied to him, this Court generally de-
clines to find waiver and instead applies plain error review.
Goings, 72 M.J. at 205. Under such review, the appellant
bears the burden of pointing to particular facts in the rec-
ord that prove why his interests should overcome the de-
terminations of Congress and the President that his con-
duct should be proscribed. Id.5
United States v. Smith, No. 23-0207/AF
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III. Discussion
Article 116, UCMJ, states that any servicemember
“who causes or participates in any riot or breach of the
peace shall be punished as a court-martial may direct.” The
President has further directed that servicemembers can
breach the peace under Article 116, UCMJ, in two ways:
(1) by partaking in a violent or turbulent act; or (2) by using
provocative speech. 1 The Government charged Appellant
with causing a breach of peace solely by using “provoking
language” toward AB, without any reference to his other
conduct. Thus, under the Government’s selected charging
scheme, Appellant was convicted of breaching the peace
based on his spoken words alone.
In its arguments, the Government repeatedly refer-
ences Appellant’s unruly conduct in addition to the provok-
ing statement he made to AB—particularly the fact that he
brandished a firearm. The Government forgets, however,
that it controls the charge sheet, United States v. Simmons,
82 M.J. 134, 141 (C.A.A.F. 2022), and the Government
chose to charge Appellant under Article 116, UCMJ, based
solely on his speech. The Government could have charged
Appellant with breaching the peace through both his words
1 The elements of the offense of breach of the peace under
Article 116, UCMJ, are that (a) the accused caused or partici-
pated in a certain act of a violent or turbulent nature; and (b) the
peace was thereby unlawfully disturbed. Manual for Courts-
Martial, United States pt. IV, para. 54.b.(2) (2019 ed.) (MCM).
The MCM further explains:
Loud speech and unruly conduct may also consti-
tute a breach of the peace by the speaker. A
speaker may also be guilty of causing a breach of
the peace if the speaker uses language which can
reasonably be expected to produce a violent or tur-
bulent response and a breach of the peace results.
The fact that the words are true or used under
provocation is not a defense, nor is tumultuous
conduct excusable because incited by others.
MCM pt. IV, para. 54.c.(2).
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and conduct, 2 but it elected not to do so. We therefore must
review Appellant’s Article 116 conviction to determine
whether the Government’s criminalization of Appellant’s
speech violates Appellant’s First Amendment rights.
A. Free Speech in the Military
To avoid any future confusion, we begin by acknowledg-
ing that both the Supreme Court and this Court have rec-
ognized that the government may place additional burdens
on a servicemember’s First Amendment free speech rights
due to the unique character of the military community and
mission. United States v. Wilcox, 66 M.J. 442, 448 n.3
(C.A.A.F. 2008) (citing Parker v. Levy, 417 U.S. 733, 758
(1974)); United States v. Priest, 21 C.M.A. 564, 570-72, 45
C.M.R. 338, 344-46 (1972); United States v. Gray, 20
C.M.A. 63, 66, 42 C.M.R. 255, 258 (1970). Yet despite Ap-
pellant’s status as an active duty member of the armed
forces at the time of his offense, the Government concedes
that this case should be governed by the same First
Amendment standards that apply in civilian courts. We
agree.
Appellant’s speech occurred far off base in a civilian set-
ting. Appellant was wearing his civilian clothes, and there
is no evidence in the record that there were any other visi-
ble indications of Appellant’s military status. To all the
other people involved in the incident, Appellant appeared
2 See, e.g., United States v. Stevens, 19 M.J. 284, 284 (C.M.A.
1985) (alleging that the accused caused “a breach of the peace by
painting a bull’s eye on his torso and wrongfully entering the
Flight Deck . . . [and] by wrongfully boarding an F-14 aircraft,
pulling the ejection system safety pins, and threatening to kill
himself while seated in the ejection seat”); United States v. Kel-
son, 3 M.J. 139, 140 (C.M.A. 1977) (claiming that the accused
breached the peace “ ‘by wrongfully standing on tables, shouting
and throwing beer mugs in the Beer Tent’ ”); United States v.
Hewson, 13 C.M.A. 506, 507, 33 C.M.R. 38, 39 (1963) (charging
a servicemember under Article 116, UCMJ, for “[causing] ‘a
breach of the peace by wrongfully shouting, striking the bars of
his cell, shaking his cell door, jumping and kicking in his cell and
on his bunk, and starting a fire in his cell’ ”).
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to be a civilian. The Government agrees that Appellant’s
speech in no way interfered with the military mission and
had no nexus to the military environment. We therefore
apply the same First Amendment law that applies in the
civilian courts.
B. Breach of the Peace and
the First Amendment
The First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech.” U.S.
Const. amend. I. Since its enactment, the First Amend-
ment has “permitted restrictions upon the content of
speech in a few limited areas.” United States v. Stevens, 559
U.S. 460, 468 (2010). These “historic and traditional cate-
gories” are “long familiar to the bar.” Id. (internal quota-
tion marks omitted) (citation omitted). They include: (1) in-
citement to imminent lawless action; (2) obscenity;
(3) defamation; (4) speech integral to criminal conduct;
(5) fighting words; (6) child pornography; (7) fraud; (8) true
threats; and (9) speech presenting some grave and immi-
nent threat the Government has the power to prevent.
United States v. Alvarez, 567 U.S. 709, 717 (2012). If a con-
tent-based restriction on speech does not fall within one of
these historically recognized categories, the restriction is
presumed to be unconstitutional. 3 Chaplinsky v. New
Hampshire, 315 U.S. 568, 571 (1942); Ashcroft v. American
Civil Liberties Union, 542 U.S. 656, 660 (2004); see also Al-
varez, 567 U.S. 709.
The Government argues that Appellant’s statements to
AB were unprotected by the First Amendment for two rea-
sons. First, the Government contends that under the Su-
preme Court’s decision in Bose Corp., some speech that
3 The Supreme Court has established that content-based re-
strictions on speech “may be justified,” notwithstanding this pre-
sumption, “if the government proves that they are narrowly tai-
lored to serve compelling state interests.” Reed v. Town of
Gilbert, 576 U.S. 155, 163 (2015) (describing the test of “strict
scrutiny” to which content-based restrictions on speech are sub-
jected). The Government, however, makes no argument that it
has offered such proof in this case.
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does not qualify as one of the specifically enumerated cate-
gories of unprotected speech may still be unprotected by
the First Amendment if it has such minimal societal value
that “any benefit that may be derived from [it] is clearly
outweighed by the social interest in order and morality.”
466 U.S. at 504. Second, the Government claims that Ap-
pellant’s statements to AB qualify as unprotected danger-
ous speech. We disagree on both counts.
1. No First Amendment Balancing Test
First, we reject the Government’s assertion that the Su-
preme Court has created a catchall First Amendment test
that operates outside of the traditional categorical ap-
proach. The Government’s theory is based on a line from
Bose Corp. in which the Supreme Court stated:
[T]here are categories of communication and cer-
tain special utterances to which the majestic pro-
tection of the First Amendment does not extend
because they “are no essential part of any exposi-
tion of ideas, and are of such slight social value as
a step to truth that any benefit that may be de-
rived from them is clearly outweighed by the so-
cial interest in order and morality.”
Id. (quoting Chaplinsky, 315 U.S. at 572).
We disagree that this language established a First
Amendment balancing test for speech that falls outside the
designated categories of unprotected speech. Instead, we
read this line as merely explaining why some of those cat-
egories—including libelous speech (the type of speech at is-
sue in Bose Corp.)—are not protected by the First Amend-
ment. Our interpretation is supported by the fact that the
Bose Corp. majority applied the traditional categorical ap-
proach throughout its opinion rather than balancing the
value of the speech in question against any societal inter-
ests. Moreover, the Supreme Court stated in Stevens that
it “has often described historically unprotected categories
of speech as being of such slight social value as a step to
truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
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morality.” 559 U.S. at 470 (internal quotation marks omit-
ted) (citations omitted).
In Stevens, the Supreme Court confronted the same the-
ory that the Government presents to us now—that whether
particular speech receives constitutional protection “ ‘de-
pends upon a categorical balancing of the value of the
speech against its societal costs.’ ” Id. (quoting Brief for the
United States at 8). The Stevens Court rejected the exist-
ence of a First Amendment balancing test, explaining that
the Government is not permitted as a general matter “to
imprison any speaker so long as his speech is deemed val-
ueless or unnecessary, or so long as an ad hoc calculus of
costs and benefits tilts in a statute’s favor.” Id. at 471; see
also Alvarez, 567 U.S. at 717 (“In light of the substantial
and expansive threats to free expression posed by content-
based restrictions, this Court has rejected as ‘startling and
dangerous’ a ‘free-floating test for First Amendment cover-
age . . . [based on] an ad hoc balancing of relative social
costs and benefits.’ ” (alterations in original) (quoting Ste-
vens, 559 U.S. at 470)).
2. Dangerous Speech and Incitement
The Government also asserts that Appellant’s state-
ments to AB qualified as unprotected “dangerous speech.”
See Schenck v. United States, 249 U.S. 47, 52 (1919) (hold-
ing that words constitute dangerous speech where they
“are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to
prevent”). The problem for the Government, however, is
that—at least in the civilian context—the category of dan-
gerous speech identified by the Supreme Court in Schenck
has been supplanted by inciting speech. See Alvarez, 567
U.S. at 717 (including “advocacy intended, and likely, to in-
cite imminent lawless action” as a category of unprotected
speech but not “dangerous speech”).
The Schenck dangerous speech test has been the subject
of substantial criticism since its inception. See
Brandenburg v. Ohio, 395 U.S. 444, 454 (1969) (Douglas,
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J., concurring) (“When one reads the opinions closely and
sees when and how the ‘clear and present danger’ test has
been applied, great misgivings are aroused.”); Gitlow v.
New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting)
(criticizing the broad use of the clear and present danger
test in part because “[e]very idea is an incitement”).
Although the Supreme Court has never officially overruled
the dangerous speech test from Schenck, that test has
effectively been abrogated by the more speaker-friendly
Brandenburg test in which speech constitutes incitement
only if it is “directed to inciting or producing imminent
lawless action and is likely to incite or produce such
action.” 395 U.S. at 447; see also Denver Area Educ.
Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 778
(Souter, J., concurring) (“[T]he clear and present danger
[test] of Schenck v. United States . . . evolved into the
modern incitement rule of Brandenburg v. Ohio.”).
Applying the Brandenburg test, Appellant’s speech was
not unprotected because it was not likely to incite any
imminent lawless action. The Government argues that
Appellant’s statements to AB were likely to cause a
physical altercation between Appellant and Micky, but we
find no evidence to support that assertion. Micky was
completely unaware of Appellant’s statement because he
was browsing the aisles inside the gas station when
Appellant made his statement. AB—the actual recipient of
Appellant’s words—stated that she chuckled in response to
Appellant’s outburst and told Appellant to leave. Nothing
in the record supports the Government’s theory that AB
was likely to relay Appellant’s words to Micky, or that
Micky would have responded to hearing them by starting a
fight with Appellant.
3. Fighting Words
Having rejected the Government’s argument for a gen-
eral balancing test and having concluded that Appellant’s
speech does not qualify as incitement under Brandenburg,
we are still left with the question whether Appellant’s
statements to AB fall within a different unprotected cate-
gory and thus could be criminal under Article 116, UCMJ.
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Appellant argues that only one category of unprotected
speech is relevant to convictions for breaching the peace:
fighting words. We are not aware of any binding case law
supporting that broad assertion (and Appellant cites none),
but it is true that fighting words are often associated with
breach of the peace statutes. See, e.g., Chaplinsky, 315 U.S.
at 572 (noting that “fighting words” are “those which by
their very utterance inflict injury or tend to incite an im-
mediate breach of the peace” (internal quotation marks
omitted) (citation omitted)); Gooding v. Wilson, 405 U.S.
518, 528 (1972) (holding that a Georgia breach of the peace
statute that criminalized protected speech beyond unpro-
tected fighting words was unconstitutional). Regardless, in
this case, the Government has conceded that Appellant’s
statements that form the basis of his Article 116 conviction
do not qualify as fighting words. Although we are not
bound by the parties’ arguments on questions of law, we
agree that Appellant’s statements to AB are not fighting
words.
In Chaplinsky, the Supreme Court recognized a cate-
gory of unprotected “fighting words” that are “likely to pro-
voke the average person to retaliation.” 315 U.S. at 574. In
Cohen v. California, the Supreme Court clarified that
speech does not fall within the fighting words category if it
was not directed to a specific person and was unlikely to
provoke a violent response. 403 U.S. 15, 20 (1971). Cohen
addressed an appellant’s conviction for wearing a jacket in
a courthouse that was inscribed with vulgar and poten-
tially provoking language regarding the draft. Id. at 16. Be-
cause the words displayed on the jacket were not “directed
to the person of the hearer” and “[n]o individual actually or
likely to be present could reasonably have regarded the
words on appellant’s jacket as a direct personal insult,” the
language written on it did not constitute fighting words. Id.
at 20. 4 Consistent with Supreme Court precedent, this
4 See also Texas v. Johnson, 491 U.S. 397, 409 (1989) (con-
cluding that the accused’s expression did not qualify as fighting
words because it was neither a direct personal insult nor an in-
vitation to exchange fisticuffs).
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Court has held that “[i]n order to be fighting words, the
words must constitute a direct personal insult.” United
States v. Brown, 45 M.J. 389, 395 (1996) (citing Cohen, 403
U.S. at 15).
We agree with the parties that the charged speech in
the present case does not fit within the fighting words cat-
egory. Although Appellant’s statements to AB cautioned
Micky to “watch his back,” the record indicates that Micky
was inside of the gas station at that time and did not hear
Appellant’s warnings. Rather, because Appellant pulled
his car up next to AB and yelled at her out his window, his
comments were directed only towards AB. But Appellant’s
comments were not about AB, she was just the conduit
through which Appellant chose to express his views about
Micky, an absent third party. AB—the intended and actual
hearer of Appellant’s words—was not the subject of Appel-
lant’s message and therefore Appellant’s words did not con-
stitute a direct personal insult. Similarly, nothing in the
record suggests that Appellant invited AB to exchange fist-
icuffs. Thus, Appellant’s charged speech did not amount to
fighting words.
4. True Threats
In its filings submitting citations to supplemental au-
thorities, the Government argues that fighting words are
not the only category of unprotected speech that can breach
the peace and suggests that Appellant’s statements to AB
qualify either as incitement or true threats. Because we
have already decided that Appellant’s speech did not qual-
ify as incitement under Brandenburg, we need only con-
sider whether it qualifies as a true threat.
The Government is correct that the First Amendment
permits a ban on “true threats.” Virginia v. Black, 538 U.S.
343, 344 (2003); see also R.A.V. v. St. Paul, 505 U.S. 377,
388 (1992) (explaining that threats of violence are unpro-
tected to guard “individuals from the fear of violence, from
the disruption that fear engenders, and from the possibility
that the threatened violence will occur”). “ ‘True threats’
encompass those statements where the speaker means to
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communicate a serious expression of an intent to commit
an act of unlawful violence to a particular individual or
group of individuals.” Black, 538 U.S. at 359.
Appellant’s statement to AB does not qualify as a true
threat. Appellant did not claim that he was going to harm
Micky that night or at some point in the future. Instead, he
only suggested that someone might try and harm Micky if
Micky did not watch his back. Further, Appellant advised
Micky that a “hard hitter” could cause him injury. But Ap-
pellant did not claim to be a “hard hitter” himself and did
not assert that he knew any such person. Appellant’s words
can be interpreted as a warning, but he did not specifically
threaten to cause Micky any harm. Accordingly, Appel-
lant’s words did not constitute a true threat.
C. Conclusion
In this case, Appellant satisfied his burden on plain er-
ror review by pointing to specific facts in the record that
established that the charged conduct—his statements to
gas station attendant AB—qualified as protected speech
under the First Amendment in a civilian context. In his
briefs and at oral argument, Appellant’s counsel persua-
sively argued that there is no free-floating balancing test
for free speech, and that the speech that formed the basis
of his Article 116 conviction does not fall within any of the
traditionally recognized categories of unprotected speech—
fighting words, true threats, or inciting speech. Because
the Government elected to charge Appellant for breaching
the peace based on his speech alone, his Article 116 convic-
tion violates the First Amendment and must be set aside.
IV. Judgment
The decision of the United States Air Force Court of
Criminal Appeals is reversed as to Charge IV and its spec-
ification and sentence. The findings of guilty with respect
to this charge and specification are set aside, and Charge
IV and its specification are dismissed. We affirm the lower
court with respect to all other findings. The record of trial
is returned to the Judge Advocate General of the Air Force
for remand to the Court of Criminal Appeals for
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Opinion of the Court
reassessment of the sentence, or for a rehearing on the sen-
tence, if necessary. 5
5 Historically, it has been this Court’s general practice to re-
mand to the courts of criminal appeals (CCAs) for sentence re-
assessment or a rehearing on the sentence whenever we set
aside at least one finding of guilty. In the Military Justice Act of
2016, National Defense Authorization Act for Fiscal Year 2017,
Pub. L. No. 114-328, 130 Stat. 2000 (2016), Congress introduced
segmented sentencing in which a separate term of confinement
and fine is adjudged for each specification in which there was a
finding of guilty when sentencing is conducted by the military
judge. These provisions became effective on January 1, 2019,
and cases with segmented sentences—like this one—are now
reaching this Court. Although segmented sentencing signifi-
cantly simplifies sentence reassessment after a specification has
been dismissed, we are mindful that some reassessment is still
necessary for the unitary (nonsegmented) component of the sen-
tence, such as the forfeiture of pay and allowances, the reduction
in pay grade, and the punitive separation. Because Congress
vested the CCAs with express statutory authority to conduct
sentence reassessment in Article 66(d)(1)(A), UCMJ, 10 U.S.C.
§ 866(d)(1)(A) (Supp. III 2019-2022), and because a remand will
give the parties a full and fair opportunity to be heard, we find
it appropriate to continue our general practice of remanding
cases to the CCAs after a specification has been set aside for sen-
tence reassessment or a rehearing on the sentence.
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