# Motion — Parker v. Levy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0319%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion - **Published:** January 1, 1974 - **Citation:** 417 U.S. 733 ## Text SEP 15 197 ri RIOMA-RODAX, JP. ae IN THE — Supreme Court of the United States OCTOBER TERM, 1973 No. 73-206 JACOB J. PARKER, as Warden of the United States Penitentiary, Lewisburg, oe yy and STANLEY R. RESOR, as Secretary of Army, Appellants, vy. @ HOWARD B. LEVY, Appellee. ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT MOTION TO DISMISS OR AFFIRM ANTHONY G. AMSTERDAM School of Law Stanford University Palo Alto, California 94305 ALAN H. LEVINE BurT NEUBORNE % Fifth Avenue New York, New York 10010 MELVIN L. WULF 22 East 40th Street New York, New York 10016 Of Counsel For Appellee CHARLES MORGAN, JR. 410 First Street, S. E. Washington, D. C. 20003 NorMAN SIEGEL 84 Fifth Avenue »New York, New York 10010 LAUGHLIN MCDONALD 660 emia, OMEN orb soe ab was Sel, ei i ah CRS os ee FIT EO LI OG RET RE I HN ss OP aE: INDEX ’ Page STATEMENT OF THE CASE... 2 ARGUMENT ....... 02-222 a eT eee 5 I. The Appeal Should Be Dismissed Because the Government’s Notice Of Appeal Was A Filed By Or On Behalf Of Cou Appellants and Failed to Comply With the Service Rule Of This Court... 5 II. The Decision By the United States Court Of Appeals for the Third Circuit is So Obviously Correct as to Warrant No Further Review... 8 A. Articles 133 and 134 Are Unconstitutional Because They are Void for Vagueness................ 8 B. The “Centuries Old” Argument Is Of No Value In This First Amendment-Due Process Prosecution. Retroactivity and “Profound Disruption” Are Not at Issue TI assests en seen tots a cepnien ts udicnpnnsiccuntiicniipncentinemewsinninn 15 II]. The Free Speech Charges Violated the First Amendment... 22 eeepc 18 IV. The Article 90 Charge Should Remain Re- versed Regardless Of the Disposition Of the Other Charges... 2... eee eee 19 V.The Judgment Of the Court Of Appeals ‘ Should Be Affirmed Because Of Numerous Constitutional Errors In the Court-Martial 0 5D oe 0 | 25 CONCLUSION @oo oon 27 APPENDIX Charge Wy eee la Additional Charge [oe 2a Rule 10, Revised Rules of the Supreme Court......... 4a Rule 33, Revised Rules of the Supreme Court.......... 4a f ide dl abies abn tealiedins eT | sh tdi, jek abt TABLE OF AUTHORITIES Cases: Abrams v.,United States, 250 U.S. 616 (1919)... 19 Avrech v. Secretary of the Navy, 477 F.2d 1237 . (D.C. Cir. 1973), jurisdictional statement filed sub nom. Secretary of the Navy y. Avrech, 41 U.S.L.W. 3674 (No. 72-1713, June 18, 1973)........ 15,16 Carmichael y. Allen, 267 F. Supp. 985 (N.D. Ga. I reaps ce nara teem een icca ns cnin vector eae nsinnentto secant 14 Chapman y. California, 386 U.S. 18 (1967)_..............25 Coates vy. Cincinnati, 402 U.S. 611 (1971)... 12 Cohen v. California, 403 U.S. 15 (1971)... 19 Connally v. General Construction Company, 269 Fah A scents ocinvsctetcnsrtcterie neces 8 Dandridge v. Williams, 397 U.S. 471 (1970)... 25 DeGregory v. New Hampshire, 383 U.S. 825 (1966)......19 Dennis y: United States, 341 U.S. 494 (195]).....00 19 Dombrowski v. Pfister, 380 U.S. 479 (1965)_._............... 8 Dynes v. Hoover, 61 U.S. [20 How.] 65 (1858)... 16 Estes v. State of Texas, 381 U.S. 532 (1965) _........... 24 Fahy v. Connecticut, 375 U.S. 85 (1963) _........-.-------.--.-- 25 ‘Garrison v. Louisiana, 379 U.S. 64 (1964)... 1] Gooding v. Wilson, 405 U.S. 518 (1972)... _ 12 Griswold y. Connecticut, 381 U.S. 479 (1965)... 20 Hooper v. Laird, ....F.2d...., (D.C. Cir. 1973) (No. 72-1198, decided August 3, 1973)__............... 16,17 Jackman vy. Rosenbaum Co.,.260 U.S. 22 (1922)............16 TABLE OF AUTHORITIES (Continued) Page Cases—Continued : Levy v. Corcoran, 389 F.2d 929: (D.C. Cir. 1967), stay and cert. denied, 387 U.S. 915, 389 U.S. 960 | ee ne nee 4,17 Levy v. Dillon, 286 F. Supp. 593 (D. Kan. 1968), aff'd 415 F.2d 1263 (10th Cir. 1969). 4 Levy v. Parker, 396 U.S. 1204, 396 U.S. 804 (1969)....4 Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399 LS | aa ne cn ee 4 Levy v. Resor, Civ. No. 67-422 (D.S.C. July 5, 1967), aff’d per curiam, 384 F.2d 689 (4th Cir. 1967), cert. denied, 389 U.S. 1049 (1968). 4 Mayberry v. Pennsylvania, 400 U.S. 455 (1971)... 19 Morissette v. United States, 342 U.S. 246 (1952).........20 NAACP v. Button, 371 U.S. 415 (1963)... 8,12 New York Times Co. v. Sullivan, 376 U.S. 254 (1964)_...11 O’Callahan v: Parker, 395 U.S. 258 (1968)... 8 Pointer v. United States, 151 U.S. 396 (1894)... 24 Reid v. Covert, 354 U.S. 1 (1957)... 8 (1969) 8 Smith v. Whitney, 116 U.S. 167 (1886) 00 16 Stolte v. Laird, 353 F. Supp. 1392 (D.D.C. 1972)...14,17 Street v. New York, 394 U.S. 576 (1969) 11 Stromberg v. California, 283 U.S. 359 (1931). 12 Swarb v. Lennox, 405 U.S. 191 (1972). 25 ili “ ae PAIRS EPS Ly EIST RE AREEED SE ES: ATARI sa, Hl ~ ey TABLE OF AUTHORITIES (Continued) Cases—Continued : Page : Terminiello v. Chicago, 337 U.S. 1 (1949)... 11,14 Thomas v. Collins, 323 U.S. 516 (1945)... ecco 12 : United States v. Frantz, 2 U.S.C.M.A. 161 (1953)........12 United States v. Gainey, 380 U.S. 63 (1965)... 0 ; United States v. Levy, 39 C.M.R. 672 (1968), : petition for review denied, 18 U.S.C.M.A. 627 Ce: ee 41 é United States v. Reese, 92 U.S. 214 (1876)... 13 i United States v. Romano, 382 U.S. 136 (1965)... 2 Whelchel v. McDonald, 340 U.S. 122 (1950)... 14 Williams v. United States, 168 U.S. 382 (1897) _........... 24 Statutes: Article 6 (c) UCMSJ, 10 U.S.C. §806 (6) ..o---oee-coeeeeceoneee 26 : Article 15 UCMJ, 10 U.S.C. §815 eee eee ee nd Article 32 UCMJ, 10 U.S.C. §832. 00. eeeoceeeeceeeene 26 Article 36 UCMIJ, 10 U.S.C. §836.. 0 --ee-ceecceeeeescseneee 25 : Article 59 (a) UCMJ, 10 U.S.C. 859 (a) ooo econo 24 Article 90 UCMJ, 10 U.S.C. §890... passim Article 133 UCMJ, 10 U.S.C. §933 2022... passim Article 134 UCMJ, 10 U.S.C. §934.00 00. passim 2B U.S.C. $0252. ecccccceccsseeeeeeeeseeceeesesevneseeeeececeeceeeeee 7 Rules: Rule 10.2, Revised Rules of the Supreme Court of the United States... occ 6 Rule 16, Revised Rules of the Supreme Court of the United States TABLE OF AUTHORITIES (Continued) Page Rules—Continued : Rule 16.1 (a), Revised Rules of the Supreme Court of the United States. eal ae alg ge eee 5 Rule 18.1, Revised Rules of the Supreme Court of the United States. 7 Rule 33, Revised Rules of the Supreme Court of the United States. 6,7 Rule 8, Federal Rules of Appellate Procedure... 7 Rule 41 (b), Federal Rules of Appellate Procedure ___ 7 Rule 62, Federal Rules of Civil Procedure. so Rule 8, Federal Rules of Criminal Procedure. 25 Other Authorities: Army Regulation, A.R. 40-554, para.5.. 20 Amy Regulation, A.R. 600-20, para.42.. 16 Manual for Courts-Martial United States 1969 (Revised Edition) 0 passim G. Myrdal, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND. MODERN DE- MOCRACY, 103 (1944). 21 Oath of Hippocrates. 20 Stern & Gressman, SUPREME COURT PRAC- — TICE (4th Ed.) §2.5.000 7 Technical Bulletin, T.B. Med. 230, Treatment and Management of Venereal Disease, 7 July 1965, $53. (2) cc ccccccceeececeee cette 20 Warren, The Bill of Rights and the Military, 37 N.Y. U.L. Rev. 181 (1962). 19 Vv —_ SEEDS RT LOL IELTS LOLS LOE AEA ne IN Re at paca Sa a ee ee ee ee = EONS a SOTTO ETH POR NAY MMA CIOS PALO LENL ENE LEIS MONS RL He ee ee SET PR : 4 t Hy M t 4 IN THE Supreme Court of the United States OCTOBER TERM, 1973 No. 73-206 JACOB !J.‘PARKER, as Warden of the United States Penitentiary, Lewisburg, Pennsylvania, and STANLEY R. ;RESOR, as Secretary of the Army, Appellants, v. HOWARD B. LEVY, Appellee. & ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT MOTION TO DISMISS OR AFFIRM Appellee, pursuant to Rule 16 of the Revised Rules of the Supreme Court of the United States, moves that the opinion and order of the court of appeals be affirmed or the appeal be dismissed on the grounds that appellants did not properly effect an appeal in compliance with the rules of this Court, that the questions presented warrant no further argument, and that other grounds raised by appellee below but not relied upon by the court of — appeals justify the decision below. 1 FLD REEF LL OR, LE DLE, POLE LENT IE IEEE OSA ELI: Sc De Dat AN is cai EO Blea Ok AI Lh AO da Od 2 STATEMENT Appellee, Dr. Howard B. Levy, formerly a Captain in the United States Army, entered active duty on July 9, 1965. He was assigned to the United States Army Hospi- tal, Fort Jackson, South Carolina, as Chief of Dermato- logy. On September 10, 1965, appellee wrote an eight-page letter expressing his views on American foreign and domestic policy to a sergeant then stationed in South Viet Nam.! During the year 1966, Dr. Levy engaged in private and informal conversation with army personnel, en- listed men and officers, expressing disagreement with American foreign policy in general and Vietnamese policy in particular. He critically discussed what he believed to be national policy regarding the rights of black citizens. Dr. Levy was accused in Additional Charge I of stating to Special Forces personnel, other personnel under his supervision, and patients, that he considered Special Forces personnel “‘liars and thieves,” “killers of peasants,” and “murderers of women and children.”” He was also accused of stating that “the 1 The two charges relating to the letter were reduced to lesser in- cluded offenses by the court-martial and, following their reduction, were dismissed on June 3, 1967. These specifications, Additional Charges II and III, are found at Jurisdictional Statement Appendix, p. 4a, n. 1. The five charges were as follows: Charge I— Article 90 (disobedience of order) Charge II— Article 134 (General Article) Additional Charge I—Article 133 (conduct unbecoming an officer and a gentleman) Additional Charge Il—Article 133 (conduct unbecoming an officer and a gentleman—dismissed at conclusion of court- martial) Additional Charge III— Article 134 (General Article — dismissed at conclusion of court-martial). 3 United States is wrong in being involved in the Viet: Nam War,” that he would not serve in the war if ordered, and that “colored soldiers” were discriminated against and should not serve in the war. His words were described in Additional Charge I as being “‘n- temperate,” “defamatory,” “provoking,” “disloyal,” “contemptuous” and “disrespectful.” In Charge II it was charged that he did, “with design to promote dis- loyalty and disaffection amofig the troops, publicly utter . . . statements to divers enlisted personnel at _ divers times” “which statements were disloyal to the United States, and prejudicial to good order and discipline in the armed forces.” On October 11, 1966 — following visits from a special counter-intelligence*agent to his commanding officer — Dr. Levy was ordered to train Special Forces Aidmen in dermatology, his medical specialty. Although he had trained all other military medical and para-medical personnel in dermatology, he declined on ethical grounds to provide Special Forces personnel the ten hours training sought. He contended these men were combat soldiers rather than Geneva Convention-pro- tected and Army-defined medical personnel and that they were using medicine in Viet Nam for political and mili- tary rather than medical purposes. Dr. Levy’s commanding officer initiated Article 3, 10 U.S.C. §815, non-judicial punishment proceedings against him. He upgraded those charges to general court-martial level after reading and re-reading a G-2 dossier compiled on Dr. Levy and called to his attention by James B. West, Special Agent of the Counter Intelli- gence Corps, who resided in nearby Prosperity, South Carolina, where Dr. Levy had in his off-duty, out-of- PORES SE a Wee oe re ne ROE WO ee etre PEST IOC LETS - 4 uniform hours engaged in a Negro voter registration drive. Dr. Levy was tried for “conduct unbecoming an officer” and for violating the “General Article”, Articles 133 and 134 Uniform Code of Military Justice, hereinafter UCMJ, 10 U.S.C. §933, 934, as well as for disobeying an order, Article 90, UCMJ, 10 U.S.C. §890.? Four of the five charges against Dr. Levy were based on pure speech, no conduct being alleged or proved. The fifth was based on his failure to obey the order to train Special Forces personnel. On June 3, 1967, Dr. Levy was convicted by court- martial, sentenced to dismissal from the service, forfei- ture of all pay and allowances and three years imprison- ment at hard labor.? | He exhausted his military review procedures* and then filed in the federal district court a petition for a writ of habeas corpus. It was denied on June 30, 1971.5 ’ The Article 90 Charge, Charge I, is found at Jurisdictional State- ment Appendix, p. 2a. Charge II and Additional Charge I are set out in the appendix to this motion, p. la. infra. 3 On August 2, 1969, Mr. Justice Douglas ordered appellee released on bail pending habeas corpus. Levy v. Parker, 396 U.S. 1204 3 (1969). On October 13, 1969, this Court unanimously agreed. Levy ; _. v. Parker, 396 U.S. 804 (1969). 4 United States v. Levy, C.M. 416, 463, 39 C.M.R. 672 (1968), petition for review denied, No. 21, 641, 18 U.S.C.M.A. 627 (1969). Other proceedings are reported as follows: Levy v. Corcoran, 389 F.2d 929 (D.C. Cir. 1967), stay and cert. denied, 387 U.S. 915, 389 U.S. 960 (1967) (sought to enjoin conduct of court-martial) ; Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R.. 399 (1967); Levy v. Resor, Civ. No. 67-442 (D.S.C. July 5, 1967), aff'd per curiam, 384 F.2d 689 (4th Cir. 1967), cert. denied, 389 U.S. 1049 (1968) (sought bail pending intra-military appellate review); Levy v. Dillon, 286 F. Supp. 593 (D. Kan. 1968), aff’d., 415 F.2d 1263 (10th Cir. 1969) (regarding post-trial relief while incarcerated at United States Disciplinary Barracks pending intra-military appellate review). 5 See Jurisdictional Statement Appendix pp. 98a-103a. ite Reade Wo SE NOT eet Ser ee. ee ee WS eRe nara ote Twa De Wet iris rcr gt. Tomas end a ee er A 5 An appeal of the denial of the habeas corpus was filed in the United States Court of Appeals for the Third Circuit. On April 18, 1973, the court of appeals reversed the district court holding Articles 133 and 134 uncon- - stitutional and reversing the Article 90 charge for pre- judicial joinder. It ordered the cause [is] remanded for the purpose of issuing the writ of habeas corpus unless within ninety days of the date hereof the appropriate military auth- orities shall grant to Howard B. Levy a new trial on the Article 90 charge, in accordance with the opinion of this Court... Jurisdictional Statement Appendix, pp. 96a.* I THE APPEAL SHOULD BE DISMISSED BECAUSE THE GOVERNMENT’S NOTICE OF APPEAL WAS NOT FILED BY OR ON BEHALF OF COUNSEL FOR APPELLANTS AND FAILED TO COMPLY WITH THE SERVICE RULE OF THIS COURT. Rule 16.1(a), Revised Rules of the Supreme Court of the United States provides: The court will receive a motion to dismiss any appeal on the ground that the appeal is not within the jurisdiction of this court, because not taken in conformity to statute or to these rules. *‘ The mandate of the court was duly entered on May 10, 1973. On July 13, 1973, the Government moved in the court of appeals to stay that portion of the court’s mandate which required that - | Dr. Levy be granted a new trial within 90 days or the writ issue until such time as this Court could act on the appeal. Over objec- | tion of appellee, the court below ordered its mandate recalled (since the mandate had already issued) and stayed as requested ) provided the Government’s appeal be docketed by July 30, 1973. * Order of July 26, 1973. FEES ER ot GO Ie ee OE SPL ET LIE LOY A ODES LLL OEE TER 6 The Government’s notice of appeal is found at Jurisdictional Statement Appendix, pp. 105a, 106a.:As it recites, service was accomplished by mailing copies of the notice to counsel for appellee by first class mail. It was certified by Carmen C. Nasuti, Assistant United States Attorney at Philadelphia, Pennsylvania. The only counsel names appearing on the notice and certificate of service are those of Nasuti and Robert E. J. Curran, United States Attorney. The notice of appeal, filed with the clerk of the United States Court of Appeals for the Third Circuit was re- quired to be served by Rule 10.2, Revised Rules of the Supreme Court of the United’ States, and to be served in the manner prescribed by Rule 33, Revised Rules of the Supreme Court of the United States.” The notice and service are deficient in two respects. 1h iin i ls aitallinbie 4d ne Lat Riatsa et i Precio WA LRM sivctesedes adres bata caves Jbiuk (a) The notice was filed by and/or on behalf of Curran and Nasuti. Since neither at the time of filing was counsel of record, and since the record reveals no entry of appearance by/said attorneys, Rule 33.4 renders the filing ineffective to give appellee notice that any appeal has been filed. The filing by legal strangers to this litigation was insufficient. ad 7 Relevant parts of Rules 10 and 33, Revised Rules of the Supreme Court of the United States, are set out in the appendix to this motion, p. 4a, infra. 8 Any doubt that the entry of appearance is required, even though the required notice is filed with the clerk of the court of appeals, is removed by the second sentence of Rule 33.3(b): “If counsel [a member of the bar of the Supreme Court of the United States} certifying to such service has not up to that time entered his appear- ance in this court in respect to the cause in which such service is made, his appearance shall accompany the certificate of service if the same is to be filed in this court.”’ (Emphasis added.) Rule 33.4 thus applies to counsel who files or has filed on his behalf a docu- ment in any court required to be filed by Supreme Court rules. NNT ED a. eee ee setts a rbinttlasad Swit Mathis EE St AS RS Orr eet ase WAG MRP ERE eX, — SRE Foo ER Por —_ 7 (b) The person effecting service, Nasuti, was not at the time of filing a member of the bar of this Court.® Since Rule 33.3(b) allows only a member of the bar of this Court to certify service, whereas others must file an affidavit of service, Rule 33.3(c), Nasuti was required to file the latter. This was not done.” The requirement of Rule 33 of proof of service was not met. Because of appellants’ failure to file an effective notice of appeal, this Court lacks jurisdiction and the case should therefore be dismissed." * Counsel for appellee have been so informed by the Clerk’s office of this Court. ® The record will reflect that there was no effort to complete proof of service by acknowledgment of service pursuant to Rule 33.3(a). " Were it not for the lack of jurisdiction outlined above, there would be substantial question as to whether a valid appeal could be taken from the court of appeals under 28 U.S.C. §1252. Although the statutory language, “‘any court of the United States,” is broad, the statute was intended to provide quick review from district court decisions. Stern & Gressman, SUPREME COURT PRAC- TICE (4th Ed.) §2.5, p. 31. No alternative quick review other than petition for certiorari is necessary from court of appeals judgments. An indication that Congress did not intend §1252 to be used as the Government here attempts is that there is no procedure for grant- ing stays of judgment by inferior courts pending appeal from courts of appeals. A district court has power to stay judgments pending appeal. E.g., Rule 62, Federal Rules of Civil Procedure, and a court of appeals may grant stays pending appeals to it. F.g., Rule 8, Federal Rules of Appellate Procedure. But the appellate courts may stay only their own mandates pending petitions for certiorari, Rule 41(b), Federal Rules of Appellate Procedure, not appeals. Thus, despite the court below granting a stay citing Rule 18.1 of this Court, which means only that this Court will honor lower court Stays but grants no power to grant such stays, Congress has provided no method for stays pending appeals from courts of appeals by said courts. This vacuum could not have been intended. The only rational conclusion is that there can be no such appeals. Review can be adequately had by petition for certiorari. — 8 II. t DECISION BY THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT IS so OBVIOUSLY CORRECT AS TO WARRANT NO FURTHER REVIEW. A. Articles 133 and 134 Are Unconstitutional Be- cause They are Void for Vagueness.'? The court of appeals viewed the due process question ; with an eye to O’Callahan vy. Parker, 395 U.S. 258, 265-66 (1968), and concluded that this Court “has in- vited the federal courts to reexamine this due process ’ question in the context of current constitutional teach- ings.” Jurisdictional Statement Appendix, p. 3la. The 3 court of appeals compared the ever-growing number of offenses cognizable under Article 134 with the basic concept of Connally v. General Construction Company, : 269 U.S. 385, 391 (1926), that: ; a statute which either forbids or requires the doing F of an act in terms so vague that men of common : intelligence must necessarily guess at its meaning ‘ and differ as to its application violates the first essential of due process of law. . . .8 : And, statutes must: : employ words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them, .. ." This Court has characterized Article 134 as an ex- ample of “‘. . . harsh law which is frequently cast in very sweeping and vague terms.” Reid v. Covert, 354 US. 1, 2 The court of appeals spoke of vagueness The rationale of the opinion clearly eficompassed overbreadth as well and will be treated as such. 13 Jurisdictional Statement Appendix, pp. 31a, 32a. 4 ITd., p. 32a. 9 38 (1957). In a long series of cases this Court has recog- nized the primacy of the first amendment and has resisted incursions of vague and overly broad statutes upon the area it protects. E.g., NAACP y. Button, 371 U.S. 415 (1963); Dombrowski v. Pfister, 380 U.S. 479 (1965); Shuttlesworth v. City of Birmingham, 394 US. 147 (1969). The court of appeals said: The most recent articulation of the vagueness doctrine, representing a synthesis of past teachings, is found in Grayned v. City of Rockford, 408 US. 104, 108-09 (1972): It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable Opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be pre- vented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and sub- jective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] free- doms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’. . . than if the boundaries of the forbidden areas were clearly marked.” (Citations omitted.) & _—_ = an SP TENE 6 EO PUR oT ~ ee Pe eee La TE PT a ae Ee ee, ee a Sa a 10 Failing to pass constitutional muster have been statutes penalizing “‘misconduct,” Giaccio v. Penn- sylvania, 382 U.S. 399 (1966); conduct that was “annoying,” Coates v. City of Cincinnati, 402 US. 611 (1971); “reprehensible,” Giaccio v. Pennsyl- vania, supra; and “‘prejudicial to the best interest” of a city, Gelling v. Texas, 343 U.S. 960 (1952). Other federal courts have voided prohibitions of conduct that “reflects discredit,” Flynn v. Giarrusso, 321 F. Supp. 1295 (E.D. La. 1971); or is “offensive,” Oestreich v. Hale, 321 F. Supp. 445 (E.D. Wis. 1970). (Footnote omitted.) Jurisdictional Statement Appendix, pp. 32a, 33a. The court of appeals framed the issues thusly: Do Articles 133 and 134 give to a commissioned officer of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute? Do these articles encourage erratic arrests and convictions? Jurisdictional Statement Appendix, p. 34a. The answer to these questions required reversal. The Government erroneously contends that the court of appeals “conceded . . . the conduct engaged in by Captain Levy fell unequivocally within the scope of certain specific examples set forth in the [UCM]] Manuals description of conduct proscribed by Article 134 (App. A, infra, pp. 46a, 73a).” Jurisdictional Statement, p. 12. What the court of appeals actually said was: Neither are we unmindful that the Manual for Courts-Martial offers as an example of an offense under Article 134, “praising the enemy, attacking the war aims of the United States, or denouncing our form of government.” With the possible excep- tion of the statement that “Special Forces are liars 11 and thieves and killers of peasants and murderers of women and children,” it would appear that each statement for which appellant was court-martialed could fall within the example given in the Manual. Jurisdictional Statement Appendix, pp. 45a, 46a." The “possible exception” statement, of course, ac- companied by those contained in the dismissed letter charges, was the key inflammatory statement, most likely to instill prejudicial reaction and affect the verdict. The Government’s glossing over the lower court’s re- fusal to hold that all the statements were within the ex- ample sidesteps the clear pronunciations of this Court that when a conviction is obtained under a general sta ute prohibiting several matters, one of which is constitu- tionally permissible, the conviction cannot stand. Street v. New York, 394 U.S. 576, 588 (1969); Terminiello v. 's At the court-martial, Dr. Levy sought to prove truth as a defense to this pure speech charge. The law officer ruled truth was not a defense. LAW OFFICER: The accused’s statements as alleged, again, are basically expressions of opinion whose truth or falsity is hardly relevant. The inquiry in this case is and must be not their truth or falsity, but were these statements uttered with a design to promote disloyalty, and did they have a reasonable and natural tendency to do so. R. Vol. 5, p. 876 (Emphasis added.) [“R” cites are to the military record introduced as exhibits below.] INDIVIDUAL COUNSEL [Mr. Morgan]: Now, but I’m trying to ascertain—really to just get down to an instance, a position here, and that is that the question of objective truth doesn’t matter, and consequently if objective truth were spoken and totally disrupted the Armed Forces, but what was said was true, a person would not be entitled to make those statements. LAW OFFICER: Not as long as that Army won, I suppose. R. Vol. 5, p. 884. (Emphasis added.) The refusal to allow the defense mandated by New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Garrison v. Louisiana, 379 US. 64 (1964), clearly warrants reversal. See, Whelchel v. McDonald, 340 U.S. 122 (1950). _— aeey PERT me - Ni thats gate ait en | SoG area Pred CR LS ala Hide ahora elas, “ee Lathinse > i 12 . Chicago, 337 U.S. 1, 6 (1949); Stromberg v. California, 283 U.S. 359, 369-70 (1931); Thomas v. Collins, 323 U.S. 516, 529 (1945). Since all of Levy’s statements clearly do not fit within the Manuals example the Government misstates an argument which is in any event irrelevant since when first amendment defense of overbreadth is raised, the fact that the charged speech falls within the statutory prohibition does not prevent» the accused from raising the defense. E.g., NAACP y, - Button, 371 U.S. 415 (1963).* The ever growing number of offenses cognizable under Article 134 and the history of prosecutions led the court of appeals to term it “an unwritten criminal code, a catchall receptacle.” Jurisdictional Statement Appendix, p. 36a. Disputing the rationale of United States v. Frantz, 2 U.S.C.M.A. 161 (1953), the court of appeals pointed out that the listed specifications fail to outline “with exactitude and limitation that conduct proscribed by Article 134.” Id., p. 37a. “‘. . . Article 134 is open ended.” Jd. That court of appeals pointed out that there is no unifying theme to the specifications, they comingle civilian offenses against persons, morals, and property with military offenses against, e.g., the wearing of improper uniforms or firearms and military 16 The Government insists that the court of appeals “brushed aside” the issue of Levy’s standing to assert vagueness. Of course the court below merely relied on Coates v. Cincinnati, 402 US. 611, 616 (1971); Gooding v. Wilson, 405 U.S. 518, 520 (1972); NAACP v. Button, 371 U.S. 415, 433 (1963). Jurisdictional Statement Appendix, pp. 45a-47a. The Government’s difficulty is that it seeks to apply conduct statutes to pure speech, and cannot refrain from terming Dr. Levy’s speech “conduct.” See Jurisdictional State- ment, p. 13. But speech remains speech, and protected by the first amendment. 13 relationships. It quoted United States v. Reese, 92 US. 214, 221 (1876): It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be at large. Id., p. 39a. The vice of the General Article’s invitation to assert criminal liability virtually without limitation is com- pounded by Executive rather than legislative drafting of the Manual and military adjudication of the charges brought under it. Additionally, the court of appeals found it was unable to ascertain any Article 133 (“conduct unbecoming an officer and a gentleman”) standard by which an officer could measure his conduct. The Manual’s discussion of proscribed conduct, Jurisdictional Statement Appendix, pp. 34a, 35a, n. 24, has remained unchanged since 1886. Id." The court felt “far from satisfied” that the charge “replete with its capacity for subjective interpretation”’ satisfied due process standards. Jurisdictional Statement, p. 35a. ™ The law officer’s instructions to the court substantially followed the Manual, para. 212; the key words being: action or behavior in an official capacity which, in dishonoring or disgracing the individual as an officer, seriously compromises his character as a gentleman... . [T]he act . . . must have a double significance and effect . . ., it must offend so seriously against justice, law, morality or decorum as to expose to dis- grace, socially, or as a man, the actor. Additionally, the act must . . . bring dishonor or disrepute upon the military pro- fession which he represents. Further, unbecoming . . . mean{s] not merely inappropriate or unsuitable, as being opposed to good taste or propriety, or not consonant with usage, but morally unbefitting and unworthy. (Emphasis added.) R. Vol. 9, p. 2597. [footnote continued on next page] Se ee ee EEO ES TE Oh yee, en: 14 Regardless of whether Articles 133 and 134 are constitutionally infirm, Levy’s conviction would still be invalid because of the specifications on “disloyalty” and _ “disaffection.” Despite the Government’s contention that-the disloyalty specification solves the due process problem — Had Captain Levy desired to evaluate the lawful- ness of his course of conduct, a short glance at the Manual would have resolved any doubts he might have entertained from a reading of the statutory provisions he attacks. Jurisdictional Statement, p. 12. — it fails to cite the Court to Stolte v. Laird, 353 F. Supp. 1392 (D.D.C. 1972), which held disloyalty specifications facially unconstitutional. The Government did not appeal. After repeated requests from defense counsel, the law officer held an out of court hearing in which he defined both “disloyalty” and “disaffection” using such words as “unfaithful,”’ ““disgust,”’ or “discontent,”’ and [footnote continued from preceding page] Dr. Levy, in his official capacity, must have so “dishonored” or “disgraced” himself that his own character was seriously compro- mised. But the witnesses had praise for his character. E.g., R. Vol. 7, 2342-51. The record is barren of evidence to the contrary. Also, he must so seriously have offended “‘decorum” as to disgrace himself as a man. Here again, there is no proof. No offense against “law,” “justice” or “morality” is alleged or raised by the proof. In- decorum cannot be constitutionally prohibited. See e.g., Terminiello v. Chicago, 337 U.S. 1 (1949); Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966) (three-judge court), but it is the only one of the four words that the specification under this charge could conceivably refer to. Additionally, he must have brought “‘dishonor or disrepute upon the military profession which he represents.’’ The prosecution offered no evidence that the Army had suffered any loss of public esteem because of Dr. Levy’s statements. Further, he must have offended not merely “‘good taste or pro- priety,” but must have been “morally unbefitting and unworthy.” eee a IIE PLEO TM ay