## Facts

- Private First Class Jeremy T. Wilcox, a U.S. Army paratrooper, maintained AOL profiles identifying himself as a “US Army Paratrooper.”
- His profiles and related communications expressed racist, anti-government, and white-supremacist views and referenced extremist organizations.
- An Army criminal investigator, undercover, contacted Wilcox after viewing the profiles and exchanged private emails with him about these views.
- Wilcox did not urge the investigator (or others) to commit violence or other unlawful acts, and the record did not show he directed his advocacy toward particular servicemembers, units, or missions.
- The prosecution charged him under Article 134, UCMJ, alleging his online advocacy was (1) prejudicial to good order and discipline and/or (2) service discrediting.
- The government did not present concrete evidence that any non-investigator servicemember saw the postings, that the speech disrupted unit functioning, or that it harmed the armed forces’ public reputation.
- Evidence in the record indicated Wilcox worked effectively with minority servicemembers and his views had not affected unit performance.
- After appellate narrowing of other charges, the Article 134 specification was the only remaining conviction that imposed criminal liability for Wilcox’s expression.

## Issues

1. Whether the evidence was legally sufficient to prove Wilcox’s online statements satisfied Article 134’s terminal element by being prejudicial to good order and discipline.
2. Whether the evidence was legally sufficient to prove the statements were of a nature to bring discredit upon the armed forces.
3. Whether, on this record, the First Amendment limited use of Article 134 to punish Wilcox’s abstract ideological advocacy.

## Decision

- The United States Court of Appeals for the Armed Forces held the evidence was legally insufficient to satisfy either Article 134 terminal element on the specific facts presented.
- The court set aside the Article 134 conviction and dismissed the specification.
- A dissent would have found the evidence sufficient based on the risk posed by publicly associating racist, anti-government views with military status.

## Legal Principles

- Article 134 requires proof beyond a reasonable doubt that the conduct was either (1) prejudicial to good order and discipline or (2) service discrediting; the terminal element cannot be presumed from offensiveness alone.
- For speech-based prosecutions under Article 134, the government must establish a reasonably direct connection between the expression and actual or clearly threatened harm to military discipline, loyalty, or mission effectiveness.
- “Service discrediting” requires proof that, in the circumstances shown, the conduct tended to bring the armed forces into disrepute; mere self-identification as a servicemember while speaking is not sufficient without evidence of discrediting effect or context.
- Even in the military context, abstract advocacy that is not shown to be incitement and is not linked by evidence to the Article 134 harms remains protected from criminal punishment.

## Conclusion

Because the government proved only that Wilcox expressed repugnant extremist views online while identifying as a paratrooper, but did not prove actual or reasonably direct prejudice to good order and discipline or a service-discrediting tendency in the circumstances, the Article 134 conviction was reversed and the specification dismissed.


United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008)