Top military court confronts free-speech vs. presidential threats case | McClatchy Washington Bureau

Missouri resident Eric L. Rapert left the Army under a cloud, court-martialed on charges that including making what sounded like racist threats against President Barack Obama.

Now Rapert’s conviction is testing the limits of a soldier’s speech, as the nation’s highest military appeals court revisits when mere words become real threats. What happens next could reach well beyond the 28-year-old Rapert, who reportedly once claimed his grandfather led the Missouri Ku Klux Klan.

“This case is very important, because it will determine whether a member of the military can be prosecuted only for what he or she actually intended rather than what other people might think he or she intended,” attorney Stephen L. Braga noted in an email interview.

Braga is director of the University of Virginia School of Law’s Appellate Litigation Clinic, which filed a brief on Rapert’s behalf.

On Wednesday, the U.S. Court of Appeals for the Armed Forces will hear Rapert’s appeal. The argument follows a June 2015 U.S. Supreme Court free-speech decision involving a Pennyslvania man who had viciously sounded off on Facebook about his estranged wife.

In its 8-1 decision, the Supreme Court concluded that conviction on a federal charge of making a threatening communication requires consideration of the speaker’s state of mind. This is a tougher standard than simply requiring that the words sound threatening to someone else.

“Although there are exceptions, the general rule is that a guilty mind is a necessary element in the indictment and proof of every crime,” Chief Justice John Roberts Jr. wrote.

But the decision in the case called Elonis v United States, like many others issued by the high court, settled some questions and opened up many others. For instance, it left unresolved whether the speaker must intend a threat, or merely be aware that his speech might be construed that way.

Its potential military application was left unresolved as well and will be tested at a high level for the first time during the 40-minute oral argument in Rapert’s case.

Rapert was an Army enlisted man with the rank of specialist, serving in Hawaii when his legal troubles began. On the night of the 2012 presidential election, Nov. 6, he grew increasingly unhappy at the prospect of 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 testified that Rapert voiced anger that “that nigger won this election,” and then he mused about the future.

“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 also declared that he and others should “storm Washington” and conduct a “good ole fashioned lynching” of the president.

At the time, government attorneys noted, Rapert owned “a sniper rifle, an assault rife and (a) Glock 20 handgun.” Rapert, though, insisted he had only been venting and had no intention of harming the president.

Convicted on other charges as well, including committing a lewd act with a child, Rapert received a six-month sentence and bad-conduct discharge.

Rapert’s appellate attorneys argue that the court’s decision in the Elonis case “calls into question” the Uniform Code of Military Justice’s provision concerning threatening communications. Like its equivalent civilian statute, the military code lacks a specific requirement concerning the defendant’s state of mind.

“The members of the military accused of this crime are entitled to the same time-honored requirements of due process as ordinary citizens before they can be branded as criminals,” students with the University of Virginia School of Law’s Appellate Litigation Clinic wrote.

The military, though, is also a unique environment in which different rules sometimes apply.

The military statute, for instance, specifies that a threatening communication must also be deemed “prejudicial to good order and discipline, or of a nature to discredit the armed forces.” Prosecutors argue this requirement provides defendants extra protection while accounting for military needs.

“Military law may proscribe conduct which is otherwise protected in the civilian world due to the different character of the military community and of the military mission,” the government’s attorney, Army Capt. Anne C. Hsieh, wrote in a brief.

Rapert’s comments, Hsieh added, “far exceeded merely offensive speech” and so alarmed his fellow soldiers that they “required an investigation and precautions by the Secret Service.”

Braga, the appellate litigation clinic director, noted the military court could “impose a new more strict standard for prosecution of criminal threats cases” or could opt for a narrower, fact-specific ruling