UNITED STATES, Appellee 

v. 

Ryan A. BOWERSOX, Specialist 

U.S. Army, Appellant 

No. 12-0398 

Crim. App. No. 20100580 

United States Court of Appeals for the Armed Forces 

Argued December 3, 2012 

Decided April 2, 2013 

RYAN, J., delivered the opinion of the Court, in which BAKER, 

C.J., ERDMANN, J., and EFFRON, S.J., joined. STUCKY, J., filed 

a separate dissenting opinion. 

Counsel 

For Appellant: Captain James P. Curtin (argued); Colonel 

Patricia A. Ham, Lieutenant Colonel Imogene M. Jamison, and 

Major Richard E. Gorini (on brief); Captain Matthew T. Grady. 

For Appellee: Captain Bradley M. Endicott (argued); Lieutenant 

Colonel Amber J. Roach and Major Catherine L. Brantley (on 

brief); Captain Stephen E. Latino. 

Military Judge: Gary J. Brockington 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Bowersox, 12-0398/AR 

2 

Judge RYAN delivered the opinion of the Court. 

 Contrary to his pleas, a military judge sitting as a 

general court-martial convicted Appellant of two specifications 

of knowingly possessing a total of 224 obscene visual depictions 

of minors engaging in sexually explicit conduct in violation of 

18 U.S.C. § 1466A(b)(1) (2006), incorporated by clause 3, 

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 934 (2006). Appellant was acquitted of an additional 

specification of wrongfully and knowingly possessing and viewing 

child pornography in violation of Article 134, UCMJ. The 

adjudged and approved sentence provided for a bad-conduct 

discharge, confinement for four months, forfeiture of all pay 

and allowances, and reduction to E-1. 

The United States Army Court of Criminal Appeals (ACCA) 

reviewed the special findings of the military judge with respect 

to each depiction but affirmed the findings with respect to only 

193 depictions, concluding that the remaining depictions either 

were not obscene or did not depict sexually explicit conduct 

and, therefore, were not factually sufficient to establish 

violations of § 1466A(b)(1). United States v. Bowersox, 71 M.J. 

561, 563 (A. Ct. Crim. App. 2012). The ACCA then reassessed and 

affirmed the approved sentence. Id. at 565. 

 
United States v. Bowersox, 12-0398/AR 

3 

We granted review of the following issue: 

WHETHER APPELLANT’S CONVICTION OF VIOLATING 18 U.S.C. 

§ 1466A(b)(1), AS IMPORTED THROUGH CLAUSE 3 OF ARTICLE 134, 

UCMJ, IS UNCONSTITUTIONAL AS APPLIED TO HIM BECAUSE THE 

MINORS DEPICTED IN THE MATERIAL AT ISSUE WERE NOT ACTUAL 

MINORS. SEE ASHCROFT v. FREE SPEECH COALITION, 535 U.S. 

234 (2002); UNITED STATES v. WHORLEY, 550 F.3d 326 (4th 

Cir. 2008).1

 First, we hold that § 1466A(b)(1) applies to Appellant’s 

conduct because the statute expressly provides that the minors 

depicted need not actually exist. 18 U.S.C. § 1466A(c) (“It is 

not a required element of any offense under this section that 

the minor depicted actually exist.”). Second, § 1466A(b)(1) is 

constitutional as applied to Appellant because the statute 

requires that the proscribed visual depiction be obscene, 18 

U.S.C. § 1466A(b)(1)(B) (“is obscene”), and the limited holding 

of Stanley v. Georgia, 394 U.S. 557, 568 (1969), which 

recognized an individual’s right to possess obscene materials 

“in the privacy of his own home,” does not extend to Appellant’s 

possession of obscene materials in his shared barracks room. 

For these reasons, the decision of the ACCA is affirmed. 

I. FACTS 

 Appellant lived with Specialist (SPC) Andy Bryant in a 

shared military barracks room located on Fort Bragg, North 

Carolina. One day in early February 2009, after entering the 

																																																							

1

 United States v. Bowersox, 71 M.J. 362 (C.A.A.F. 2012) (order 

granting review). 
United States v. Bowersox, 12-0398/AR 

4 

shared barracks room, SPC Bryant observed Appellant abruptly 

stand up, and step in front of his computer, obscuring SPC 

Bryant’s view of the computer screen. SPC Bryant testified that 

he found Appellant’s behavior “odd.” 

Shortly thereafter, Appellant asked SPC Bryant for the 

phone number of their superior, Sergeant (Sgt) Clark. When SPC 

Bryant asked Appellant why he wanted the phone number, Appellant 

said that he wanted to report a web site and asked SPC Bryant to 

come over and see the web site for himself. Appellant then 

showed SPC Bryant his computer screen, on which there were 

images of minors engaged in sexual activities. Appellant asked 

SPC Bryant if he should report the web site. SPC Bryant told 

Appellant to report the web site and left the room. 

 Approximately one week later, SPC Bryant asked Sgt Clark if 

Appellant had reported the web site; Appellant had not. After 

confronting Appellant, who feigned ignorance of the web site, 

SPC Bryant reported the incident to his first sergeant, who 

immediately sent him to Criminal Investigation Command (CID) to 

make an official report. 

 Appellant’s shared barracks room was subject to inspection 

under Military Rule of Evidence (M.R.E.) 313(b), which 

authorizes “commanding officers to conduct inspections of their 

units -- ‘as an incident of command’ -- when ‘the primary 

purpose . . . is to determine and to ensure the security, 
United States v. Bowersox, 12-0398/AR 

5 

military fitness, or good order and discipline of the unit,’” 

United States v. Jackson, 48 M.J. 292, 293 (C.A.A.F. 1998) 

(alteration in original) (quoting M.R.E. 313(b)), and may 

include “‘an examination to locate and confiscate unlawful 

weapons and other contraband.’” Id. at 294 (quoting M.R.E. 

313(b)). However, the “‘primary purpose’ of an inspection 

cannot be to ‘obtain[] evidence for use in a trial by courtmartial.’” Id. (alteration in original) (quoting M.R.E. 

313(b)). Therefore, pursuant to CID regulations, Special Agent 

(SA) Jeremy Kamphuis obtained a verbal authorization from a 

military magistrate to search Appellant’s room for computer 

electronic devices, and then obtained a warrant from the same 

magistrate the following day. During the authorized search, CID 

seized, among other things, Appellant’s desktop and laptop 

computers. 

 The computers were sent to SA Kirk Ellis, the Computer 

Crimes Coordinator for the 10th MP Battalion, who conducted a 

search of the computers’ hard drives. The search of the laptop 

computer’s hard drive uncovered approximately twenty-seven 

images depicting minors engaged in sexual activities. The 

search of the desktop computer’s hard drive uncovered 

approximately 318 images depicting minors engaged in sexual 

activities. None of the images found on Appellant’s computers 

depicted real children. In a sworn statement made to CID, 
United States v. Bowersox, 12-0398/AR 

6 

Appellant admitted that he was “addict[ed] to Anime”2 and, on 

multiple occasions, had viewed and downloaded anime images that 

depicted minors engaging in sexual activities.3

II. THE ACCA OPINION 

 As relevant to the granted issue, the ACCA held that 18 

U.S.C. § 1466A(b)(1) is constitutional as applied to Appellant 

because “the circumstances of [A]ppellant’s case remove it from 

the circumscribed protections afforded in Stanley.” Bowersox, 

71 M.J. at 564. The lower court observed that “‘[t]he threshold 

of a barracks/dormitory room does not provide the same sanctuary 

as the threshold of a private home.’” Id. (quoting United 

																																																							

2

 While Appellant described the images as “anime” in a sworn 

statement to CID they are more accurately described as realistic 

computer animation. Anime is “a style of animation originating 

in Japan that is characterized by stark colorful graphics 

depicting vibrant characters in action-filled plots often with 

fantastic or futuristic themes.” Merriam-Webster’s Collegiate 

Dictionary 49 (11th ed. 2008). In contrast, the images at issue 

depict real-looking children and adults engaged in sexual 

conduct. The images are created with such realism that they 

show expressions of pain and pleasure on the child participants’ 

faces, the children’s shadows on the ground, and even depict the 

leg hairs of the men engaging in sex with the children. While 

the record does not establish that these images portray real, 

living children, it does demonstrate that these images are far 

removed from the fanciful cartoon caricature commonly understood 

to be “anime.” 

3

 In his statement, Appellant described various files on his 

computer. One file consisted of “six minors (less than 10 years 

of age) in a multiracial setting with one adult at the end, all 

engaged in sexual acts.” Other files consisted of: (1) 

“shotacon” images, which generally depict “two minor boys 

engaged in sexual activities,” (2) “straight shotacon” images, 

which generally depict “animated girls who are older than the 

boys engaged in sexual activities,” and (3) images of incest. 
United States v. Bowersox, 12-0398/AR 

7 

States v. Conklin, 63 M.J. 333, 337 (C.A.A.F. 2006)). The ACCA 

therefore concluded that “[t]here is no constitutionally 

recognized right to possess” “obscene visual depictions of a 

minor engaging in sexually explicit conduct . . . in a shared 

barracks room in the special maritime and territorial 

jurisdiction of the United States.”4

 Id.

III. DISCUSSION 

 Appellant argues that § 1466A(b)(1) is unconstitutional as 

applied to him both because none of the images found on his 

computers were of real minors, and because the limited right to 

possess obscenity in the privacy of one’s own home, as 

recognized in Stanley, 394 U.S. 557, extends to Appellant’s 

shared barracks room. We disagree. 

A. 

 First, Appellant claims that the application of 

§ 1466A(b)(1) to his case is unconstitutional because the 

statute requires that a real minor be depicted and no real 

																																																							

4

 The scope of 18 U.S.C. § 1466A is limited by subsection (b) to 

“[a]ny person . . . in a circumstance described in subsection 

(d).” 18 U.S.C. § 1466A(b). The “circumstance” listed in 

subsection (d), as relevant to Appellant, is that “the offense 

is committed in the special maritime and territorial 

jurisdiction of the United States or in any territory or 

possession of the United States.” 18 U.S.C. § 1466A(d)(5). 

Here, Appellant and SPC Bryant’s shared barracks room is in 

building H-4812 on Fort Bragg, North Carolina. No one disputes 

that Appellant’s shared barracks room is in the “special 

maritime and territorial jurisdiction of the United States.” 

See 18 U.S.C. § 7 (2006). 
United States v. Bowersox, 12-0398/AR 

8 

minors were depicted in the images found on Appellant’s 

computers. 

 Under § 1466A(b)(1) and (d)(5), it is a criminal offense to 

“knowingly possess[],” “in the special maritime and territorial 

jurisdiction of the United States,” “a visual depiction of any 

kind, including a drawing, cartoon, sculpture, or painting, 

that . . . depicts a minor engaging in sexually explicit 

conduct[,] and . . . is obscene.”5

 18 U.S.C. § 1466A(b)(1), (d). 

 Contrary to Appellant’s argument, § 1466A(b)(1) does not 

require proof that the depictions represent “real” minors. 

First, and most importantly, § 1466A(c) expressly states, “[i]t 

is not a required element of any offense under this section that 

the minor depicted actually exist.” Despite the clarity of this 

language, Appellant contends that it does not mean what it says, 

but rather means that Congress intended subsection (c) to 

“reliev[e] the Government from the burden of exhaustively 

searching the country to identify conclusively the children 

involved in the production of the child pornography.” Brief for 

Appellant at 9, United States v. Bowersox, No. 12-0398 (C.A.A.F. 

Aug. 28, 2012) (quoting United States v. Whorley, 550 F.3d 326, 

																																																							

5

 A minor is “any person under the age of eighteen years.” 18 

U.S.C. § 2256(1). “Sexually explicit conduct” includes actual 

or simulated sexual intercourse, sodomy, masturbation, 

bestiality, sadistic or masochistic abuse, or lewd public 

behavior. 18 U.S.C. § 2256(2)(A). 
United States v. Bowersox, 12-0398/AR 

9 

351 (4th Cir. 2008) (Gregory, J., concurring in part and 

dissenting in part)). 

 Appellant’s argument fails for at least two reasons. 

First, Congress provided equally clear and alternative language 

for doing exactly what Appellant describes when it defined an 

“identifiable minor” in another section of that chapter -- 

“[this definition] shall not be construed to require proof of 

the actual identity of the identifiable minor.” 18 U.S.C. 

§ 2256(9)(B) (emphasis added). That is not the language 

Congress used in the statute before us. See United States v. 

Wilson, 66 M.J. 39, 45-46 (C.A.A.F. 2008) (“‘[Where] Congress 

includes particular language in one section of a statute but 

omits it in another section . . . it is generally presumed that 

Congress acts intentionally and purposely in the 

disparate . . . exclusion.’” (alteration in original) (quoting 

Russello v. United States, 464 U.S. 16, 23 (1983) (internal 

quotation marks omitted)). 

 Second, even if the words that a minor need not “actually 

exist,” 18 U.S.C. § 1466A(c), are open to alternative 

interpretations, that they mean the depictions need not be of a 

real minor is further illustrated by the list of visual 

depictions prohibited under the statute, which specifically 

lists both drawings and cartoons. See 18 U.S.C. § 1466A(b). 

Moreover, visual depictions are themselves defined to include a 
United States v. Bowersox, 12-0398/AR 

10 

“computer image or picture, or computer generated image or 

picture, whether made or produced by electronic, mechanical, or 

other means.” 18 U.S.C. § 1466A(f)(1). Neither drawings nor 

cartoons nor computer-generated images necessarily or logically 

require a real minor. In our view, the express reference to 

“computer image or picture, or computer generated image or 

picture,” and to drawings and cartoons, makes clear that the 

statute envisioned and made criminal the possession of precisely 

the type of depictions on which Appellant’s conviction was based 

-- obscene, computer-generated images of minors engaged in 

sexually explicit conduct. 

 In sum, we agree with the Fourth Circuit’s analysis of a 

related statutory subsection in United States v. Whorley: 

While § 1466A(a)(1) would clearly prohibit an obscene 

photographic depiction of an actual minor engaging in 

sexually explicit conduct, it also criminalizes 

receipt of “a visual depiction of any kind, including 

a drawing, cartoon, sculpture, or painting,” that 

“depicts a minor engaging in sexually explicit 

conduct” and is obscene. Id. § 1466A(a)(1) (emphasis 

added). In addition, Whorley overlooks § 1466A(c), 

which unambiguously states that “[i]t is not a 

required element of any offense under this section 

that the minor depicted actually exist.” 18 U.S.C. 

§ 1466A(c). The clear language of § 1466A(a)(1) and § 

1466A(c) is sufficiently broad to prohibit receipt of 

obscene cartoons, as charged in Counts 21–40. 

Whorley, 550 F.3d at 336.6

																																																							

6

 We further agree with Whorley that Ashcroft v. Free Speech 

Coalition, 535 U.S. 234 (2002), is inapposite. Whorley, 550 

F.3d at 336. The statute at issue in Ashcroft was held to be 
United States v. Bowersox, 12-0398/AR 

11 

B. 

 Appellant also claims that § 1466A(b)(1) is 

unconstitutional as applied to him because he has the right to 

possess obscenity in the privacy of his shared barracks room. 

 The First Amendment states that “Congress shall make no 

law . . . abridging the freedom of speech . . . .” U.S. Const. 

amend. I. However, “obscene material is unprotected by the 

First Amendment.” Miller, 413 U.S. at 23. Nonetheless, in 

Stanley, 394 U.S. at 568, the Supreme Court held that a statute 

prohibiting the possession of obscene material within the home 

was unconstitutional. In doing so, the Court stated that, “a 

State has no business telling a man, sitting alone in his own 

house, what books he may read or what films he may watch.” Id.

at 565. The constitutional principle underlying the holding in 

Stanley is less than clear. Compare United States v. 12 200-Ft.

Reels of Super 8mm. Film, 413 U.S. 123, 126 (1973) (“Stanley

depended, not on any First Amendment right to purchase or 

possess obscene materials, but on the right to privacy in the 

home.”), with Osborne v. Ohio, 495 U.S. 103, 108 n.3 (1990) (“We 

																																																																																																																																																																																		

constitutionally overbroad because it reached and proscribed 

speech that was neither child pornography under New York v. 

Ferber, 458 U.S. 747, 764-66 (1982), nor obscene under Miller v. 

California, 413 U.S. 15, 24 (1973). Ashcroft, 535 U.S. at 240. 

In contrast, § 1466A(b)(1) only prohibits depictions of minors 

engaging in sexually explicit conduct if the depictions are

obscene. 18 U.S.C. § 1466A(b)(1)(A)-(B). 
United States v. Bowersox, 12-0398/AR 

12 

have since indicated that our decision in Stanley was ‘firmly 

grounded in the First Amendment.’”) (citation omitted). But no 

one disputes that: (1) obscenity itself is not protected speech 

under the First Amendment, see Miller, 413 U.S. at 23; (2) 

Stanley’s protection was grounded in the paramount importance 

accorded in our society to the “privacy of a person’s own home,” 

Stanley, 394 U.S. at 564 (emphasis added) (finding that “[the] 

right to receive information and ideas, regardless of their 

social worth . . . takes on an added dimension” -- “the 

[fundamental] right to be free . . . from unwanted governmental 

intrusions into one’s privacy” -- where the prosecution is for 

“mere possession of [obscene] matter in the privacy of a 

person’s own home”); and (3) Stanley has been strictly limited 

to its facts, see Osborne, 495 U.S. at 108 (“Stanley was a 

narrow holding.”). 

 After Stanley, “the States retain[ed] broad power to 

regulate obscenity; that power simply does not extend to mere 

possession by the individual in the privacy of his own home.” 

Stanley, 394 U.S. at 568. Because “[t]he Constitution extends 

special safeguards to the privacy of the home,” United States v. 

Orito, 413 U.S. 139, 142 (1973), “Stanley should not be read too 

broadly,” Osborne, 495 U.S. at 108. “The Court has consistently 

rejected constitutional protection for obscene material outside 

the home.” Orito, 413 U.S. at 143. Because the zone of privacy 
United States v. Bowersox, 12-0398/AR 

13 

that Stanley protected does not extend beyond the home, id. at 

141-43, the issue is whether a shared barracks room is a “home.”7

 While we agree with Judge Stucky that servicemembers have a 

reasonable expectation of privacy in a shared barracks room that 

protects them from unreasonable government intrusions, we do not 

agree that one’s privacy interest in a shared barracks room is 

coextensive with one’s privacy interest in their home, see

United States v. McCarthy, 38 M.J. 398, 403 (C.M.A. 1993) 

(“[T]he threshold of a barracks/dormitory room does not provide 

the same sanctuary as the threshold of a private home.”); a 

place where “[t]he Constitution extends special safeguards,” 

Orito, 413 U.S. at 142. In discussing a servicemember’s 

reasonable expectation of privacy in a shared barracks room, the 

Court has acknowledged that:

[t]here are substantial differences between [a 

barracks room and a private home]. Appellant was 

assigned his room; he did not choose it. Appellant 

was assigned his roommate; he did not choose him. 

Appellant could not cook in his room, have overnight 

guests, or have unaccompanied underage guests. 

Appellant knew that he was subject to inspection to a 

degree not contemplated in private homes. 

McCarthy, 38 M.J. at 403. Thus, a soldier has less of an 

expectation of privacy in his shared barracks room than a 

																																																							

7

 Since the First Amendment’s protections do not otherwise depend 

on whether one’s conduct occurred within the privacy of one’s 

home, we rely on our Fourth Amendment jurisprudence to determine 

whether a shared barracks room is a “home” for purposes of 

Stanley. 
United States v. Bowersox, 12-0398/AR 

14 

civilian does in his home. See, e.g., id. at 401 (“‘The soldier 

cannot reasonably expect the Army barracks to be a sanctuary 

like his civilian home.’” (quoting Committee for GI Rights v. 

Callaway, 518 F.2d 466, 477 (D.C. Cir. 1975))); see also Rule 

for Courts-Martial (R.C.M.) 302(e)(1), (2) (“apprehension[s] may 

be made at any place, except” at a “private dwelling,” the 

definition of which includes “single family houses, duplexes, 

and apartments,” on or off a military installation, but 

explicitly excludes “living areas in military barracks”); M.R.E. 

313(b) (permitting inspection “of the whole or part of a 

unit . . . as an incident of command . . . to ensure the 

security, military fitness, or good order and discipline of the 

unit”).8

 Here, the fact that Appellant purposefully exposed SPC 

Bryant to the obscene computer depictions in their shared 

barracks room highlights the divergent natures of a shared 

barracks room and a private home. See Stanley, 394 U.S. at 565 

(“If the First Amendment means anything, it means that a State 

has no business telling a man, sitting alone in his own house, 

what books he may read or what films he may watch.”). The very 

																																																							

8

 Application of McCarthy and reference to R.C.M. 302(e) and 

M.R.E. 313, which all assist in discerning the scope of the 

Fourth Amendment’s right of privacy in the military context, are 

appropriate here where we are confronted with the question 

whether the barracks is a home for purposes of Stanley. See

Stanley, 394 U.S. at 564-65. 
United States v. Bowersox, 12-0398/AR 

15 

nature of a shared barracks room increases the risk that obscene 

materials will be viewed by those who do not wish to view them. 

Cf. id. at 567 (concluding that an individual’s private 

possession of obscene material in the home does not present the 

danger that “it might intrude upon the . . . privacy of the 

general public”). The “natural tendency of material in the home 

being kept private,” Orito, 413 U.S. at 143, is substantially 

diminished in a shared barracks room. 

 Moreover, while a servicemember has a reasonable 

expectation of privacy in the files kept on a personal, 

password-protected computer for purposes of the Fourth 

Amendment, see Conklin, 63 M.J. at 337 (finding the warrantless 

search of a servicemember’s computer illegal because “an 

individual sharing a two-person dormitory room has a reasonable 

expectation of privacy in the files kept on a personally owned 

computer”), that privacy interest is not congruent with the 

discrete and special privacy interest in one’s home recognized 

by Stanley and was, in this case, overcome by a lawful warrant 

authorizing a search for contraband based on probable cause. 

See United States v. Leedy, 65 M.J. 208, 214-17 (C.A.A.F. 2007) 

(finding a search warrant that authorized a search of the 

appellant’s personal computer in his shared dormitory room for 

child pornography valid where it was based on probable cause); 

cf. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 
United States v. Bowersox, 12-0398/AR 

16 

653 n.15 (1989) (“[T]he law recognizes no right to possess 

[contraband].” (citing One 1958 Plymouth Sedan v. Pennsylvania, 

380 U.S. 693, 699 (1965))). Stanley has been limited to its 

facts, and we decline to extend its holding to a shared barracks 

room.9 See 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. at 127 

(observing that the holding in Stanley rests on an “explicitly 

narrow and precisely delineated privacy right,” and “reflects no 

more than what Mr. Justice Harlan characterized as the law’s 

solicitude to protect the privacies of the life within [the 

home]” (alteration in original) (internal quotation marks and 

citation omitted)). 

IV. DECISION 

 The decision of the United States Army Court of Criminal 

Appeals is affirmed. 

																																																							

9

 To be clear, that Appellant’s conduct occurred “in the special 

maritime and territorial jurisdiction of the United States” is 

relevant to our analysis only insofar as it satisfies 18 U.S.C. 

§ 1466A(d)(5). Our conclusion that Appellant’s conduct is not 

protected is based on the determination that Stanley does not 

extend beyond the home, see Orito, 413 U.S. at 143, and that the 

shared barracks room at issue in this case does not merit the 

protections of a home, for purposes of Stanley. 
United States v. Bowersox, No. 12-0398/AR 

 STUCKY, Judge (dissenting): 

 I disagree with the majority’s holding that 18 U.S.C. 

§ 1466A(b)(1) (2006) is constitutional as applied. Where a 

statute seeks to prohibit constitutionally protected conduct, 

the statute cannot be examined in a vacuum. This Court must 

consider how the relevant statutory provisions interact with 

each other, and examine this interaction in light of the 

Constitution, Supreme Court precedent, and the facts and 

circumstances of the case. In this case, Appellant was 

convicted only of mere possession of obscenity -- conduct that 

is constitutionally protected in some circumstances under 

Stanley v. Georgia, 394 U.S. 557 (1969). Therefore, it is 

necessary to address the applicability of Stanley to determine 

the constitutionality of § 1466A(b)(1) as applied to Appellant. 

I believe Stanley applies to the barracks under these 

circumstances, and would therefore hold that § 1466A(b)(1) is 

unconstitutional as applied to Appellant. 

I. 

Generally, obscenity is not protected by the First 

Amendment. Miller v. California, 413 U.S. 15 (1973); Roth v. 

United States, 354 U.S. 476 (1957). Specifically, the Supreme 

Court has held that the production, receipt, transportation, and 

distribution of obscene materials are not constitutionally 

protected. United States v. Reidel, 402 U.S. 351 (1971); United 
United States v. Bowersox, No. 12-0398/AR 

2

States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376 

(1971); United States v. Orito, 413 U.S. 139, 142 (1973). 

However, mere possession of obscene material in one’s home is 

constitutionally protected. Stanley, 394 U.S. at 559. 

In Stanley, federal and state agents secured a warrant to 

search Stanley’s home to investigate alleged bookmaking 

activities. Id. at 558. They found little evidence of 

bookmaking, but found “obscene” films in a bedroom desk drawer. 

Id. Stanley was subsequently convicted of knowingly possessing 

obscene matter in violation of Georgia law. Id. The Supreme 

Court overturned his conviction: 

Whatever may be the justifications for other statutes 

regulating obscenity, we do not think they reach into 

the privacy of one’s own home. If the First Amendment 

means anything, it means that a State has no business 

telling a man, sitting alone in his own house, what 

books he may read or what films he may watch. 

Id. at 565. Stanley has been repeatedly limited to mere 

possession within the “home.” See, e.g., Smith v. United 

States, 431 U.S. 291, 307 (1977). The threshold issue in this 

case is whether a shared barracks room may ever constitute a 

“home” under Stanley. 

The majority bases its holding that Stanley does not apply 

in the barracks on Fourth Amendment grounds: a servicemember 

does not have the same expectation of privacy in a barracks room 

as he would in a civilian home. While I agree as a general 
United States v. Bowersox, No. 12-0398/AR 

3

matter that the barracks does not provide the same expectation 

of privacy as a civilian home, I do not agree that a 

servicemember’s privacy interest in a shared barracks room must 

be coextensive with the privacy interest in a home to trigger 

the protections of Stanley, and I cannot reconcile the 

majority’s holding with this Court’s Fourth and First Amendment 

jurisprudence.1

Aside from a limited inspection regime and the need for 

discipline and military readiness, a servicemember has Fourth 

Amendment protections in a shared barracks room. See United 

States v. Thatcher, 28 M.J. 20 (1989) (recognizing that an 

 

1

 I agree with the majority that the Supreme Court has wavered 

regarding the import of the constitutional principles underlying 

Stanley. See United States v. 12 200-Ft. Reels of Super 8mm. 

Film, 413 U.S. 123, 126 (1973) (suggesting that Stanley was 

rooted in the Fourth Amendment rather than the First Amendment); 

but see Osborne v. Ohio, 495 U.S. 103, 108 n.3 (1990) (“We have 

since indicated that our decision in Stanley was ‘firmly 

grounded in the First Amendment.’” (citing Bowers v. Hardwick, 

478 U.S. 186, 195 (1986), overruled on other grounds by Lawrence 

v. Texas, 539 U.S. 558 (2003)). While the Supreme Court has 

gone back and forth about the main constitutional support for 

Stanley, looking at the plain language of the opinion and 

decades of application, Stanley is now what it originally was -- 

an opinion rooted in both the First and Fourth Amendments. 

Which amendment was more central to the holding of Stanley is 

not dispositive of any one case; rather, the relative importance 

of each amendment to a particular case will vary depending on 

the facts and circumstances. In other words, Stanley rests on 

the intersection of First and Fourth Amendment rights, and it is 

necessary to consider both aspects of Stanley to determine its 

applicability -- specifically, whether the shared barracks room 

in this case constitutes a “home” under Stanley. 
United States v. Bowersox, No. 12-0398/AR 

4

inspection regime and the need for military fitness and 

readiness does not preclude a servicemember’s reasonable 

expectation of privacy in the barracks). Undoubtedly, these 

military needs limit the application of some Fourth Amendment 

rights in the barracks. See United States v. McCarthy, 38 M.J. 

398, 403 (C.M.A. 1993) (“the threshold of a barracks/dormitory 

room does not provide the same sanctuary as the threshold of a 

private home”). However, this Court has acknowledged that “[i]n 

the military context, the barracks or dormitory often serves as 

the servicemember’s residence, his or her home.” United States 

v. Macomber, 67 M.J. 214, 219 (C.A.A.F. 2009). To this end, 

this Court has specifically held that servicemembers have some 

Fourth Amendment protections in a shared barracks. See, e.g., 

United States v. Conklin, 63 M.J. 333 (C.A.A.F. 2006) (holding 

that an accused has a privacy interest in files on his 

personally owned computer); United States v. Middleton, 10 M.J. 

123 (C.M.A. 1981) (recognizing that a locked wall locker is 

protected by the Fourth Amendment). Indeed, a servicemember’s 

Fourth Amendment protections are at their apex when it comes to 

secured personal property within the barracks. 

This Court has also upheld a servicemember’s First 

Amendment rights as long as the speech does not have a “direct 

and palpable connection” to “the military mission or military 

environment.” See United States v. Wilcox, 66 M.J. 442, 448–49 
United States v. Bowersox, No. 12-0398/AR 

5

(C.A.A.F. 2008) (finding a conviction for making antigovernment, disloyal, and racially intolerant statements online 

legally insufficient under Article 134, Uniform Code of Military 

Justice, 10 U.S.C. § 934 (2006)). 

Like Stanley, this case lies at the intersection of First 

and Fourth Amendment rights. Appellant was charged with conduct 

protected by the First Amendment -- mere possession -- in a 

place expressly protected by the Fourth Amendment -- a passwordprotected computer. Whatever the limits of constitutional 

protections in the barracks are,2 where, as here, a 

servicemember’s First and Fourth Amendment rights intersect, the 

barracks are most like the “home” envisioned by the Supreme 

Court in Stanley. 

The majority attempts to distinguish the protections 

identified above from “the discrete and special privacy interest 

in one’s home recognized by Stanley.” This “discrete and 

special privacy interest” is not separate from a servicemember’s 

First and Fourth Amendment rights; rather, it is just an 

acknowledgment that in certain circumstances the protections 

overlap: 

 

2

 To be clear, I do not believe that Stanley applies in the 

barracks under every circumstance. For example, the 

constitutional protections outlined in Stanley would not extend 

to hanging obscene posters in a barracks dormitory because of 

the potential effect on military discipline. 
United States v. Bowersox, No. 12-0398/AR 

6

[The] right to receive information and ideas, 

regardless of their social worth, is fundamental to 

our free society. Moreover, in the context of . . . a 

prosecution for mere possession of [obscenity] in the 

privacy of a person's own home -- that right takes on 

an added dimension . . . the right to be free, except 

in very limited circumstances, from unwanted 

governmental intrusions into one's privacy. 

Stanley, 394 U.S. at 564 (internal citation omitted). 

These constitutional protections cannot be overcome, as the 

majority asserts, by a lawful warrant authorizing a search for 

contraband. Stanley does not address the authorization to 

search for such materials in the home. See Stanley, 394 U.S. at 

568 (overturning Stanley’s conviction even though there was a 

lawful warrant to search for contraband). As in Stanley, a 

lawful warrant may grant access to search a private place, but 

it cannot negate Stanley’s prohibition on criminalizing mere 

possession of obscene materials.3

Even assuming, as the majority does, that the application 

of Stanley depends entirely on the Fourth Amendment, I would 

hold that Stanley applies in the barracks under these 

circumstances. Bowersox, __ M.J. at __ (13) n.7. The 

Constitution does not end at the barracks door, and the Fourth 

Amendment applies to the area at issue -- a password-protected 

 

3

 The cases the majority cites to support this proposition are 

inapposite as they address searches for materials that are not 

constitutionally protected, such as contraband and child 

pornography. United States v. Bowersox, __ M.J. __ (15-16) 

(C.A.A.F. 2013). 
United States v. Bowersox, No. 12-0398/AR 

7

computer in a shared barracks room. Here we are dealing with 

private materials in a private space that, by virtue of password 

protections, was inaccessible by others. Unlike choosing a 

roommate, cooking, inspections, overnight guests, or 

apprehension by military police, the “use” of the barracks room 

at issue did not implicate the shared or command aspects of the 

barracks room -- the aspects that make a barracks room less like 

a “home.”4 Rather, this case only involves aspects of a barracks 

room that are most like a “home” and are specifically protected 

under the Fourth Amendment. 

Assuming Stanley applies, the next question is whether 

§ 1466A (b)(1) is unconstitutional as applied to Appellant. 

II. 

 Possession of actual child pornography functions as an 

exception to the constitutional protections in Stanley and 

 

4

 The fact that Appellant invited his roommate, SPC Bryant, over 

to his side of the room and showed him an image on his computer 

does not negate Appellant’s privacy interest in everything else 

on the computer. Furthermore, Appellant did not expose SPC 

Bryant to any of the obscene materials at issue; Appellant 

apparently only showed him the images he was found not guilty of 

possessing. Where an individual voluntarily looks at something 

when asked by his roommate, the risk of exposure to obscene 

materials is no greater than in a college dormitory or other 

civilian roommate situation and it certainly does not “intrude 

upon the privacy of the general public.” Bowersox, __ M.J. at 

__ (15) (ellipsis and quotation marks omitted) (quoting Stanley, 

394 U.S. at 567). It cannot be the case that the “home” 

envisioned in Stanley excludes shared living situations because 

of an increased “risk that obscene materials will be viewed by 

those who do not wish to view them.” Id.
United States v. Bowersox, No. 12-0398/AR 

8

Miller because of the dangers it presents to real children. See

New York v. Ferber, 458 U.S. 747, 757–61 (1982); Osborne, 495 

U.S. at 109. To further protect children, Congress passed the 

Child Pornography Prevention Act of 1996 (CPPA), which 

criminalized aspects of child pornography, including virtual 

child pornography. 18 U.S.C. § 2256. In 2002, the Supreme 

Court held that the CPPA was overbroad and unconstitutional 

because it banned speech that was neither actual child 

pornography covered by Ferber, nor obscene under Miller. 

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 239–40, 258 

(2002). After Ashcroft, to “restore the government’s ability to 

prosecute child pornography offenses successfully” Congress 

remedied the error in the CPPA and enacted new laws to address 

virtual child pornography. S. Rep. No. 108-2, at 1, 4–6; 

PROTECT Act, Pub. L. No. 108-21, § 504, 117 Stat. 650, 680–82 

(2003) (codified as amended at 18 U.S.C. § 1466A). 

 Appellant was charged with violating 18 U.S.C. 

§ 1466A(b)(1), which prohibits knowing possession of “a visual 

depiction of any kind” that “depicts a minor engaging in 

sexually explicit conduct” and is obscene. The statute 

expressly provides that it “is not a required element of any 

offense under this section that the minor depicted actually 

exist.” § 1466A(c). Five circumstances trigger application of 

the statute. § 1466A(d)(1)–(5). The first four involve 
United States v. Bowersox, No. 12-0398/AR 

9

communicating or transporting virtual child pornography through 

interstate or foreign commerce by any means, including a 

computer. § 1466A(d)(1)–(4). 

If Appellant had been charged under any of the first four 

triggering circumstances, he would not be entitled to the 

protections of Stanley because he would have been charged with 

activity beyond mere possession. Indeed, besides Stanley, all 

of the cases cited by the majority to support its holding 

involve conduct beyond mere possession, or involve possession of 

actual child pornography -- both of which raise different 

constitutional issues. However, the triggering circumstance 

charged in this case was that Appellant committed the offense in 

the barracks which is “in the special maritime and territorial 

jurisdiction of the United States.” § 1466A(d)(5). In other 

words, Appellant was charged with the knowing possession of 

virtual child pornography in the special maritime and 

territorial jurisdiction of the United States. 

While Congress does have the full and exclusive authority 

to legislate for the special maritime and territorial 

jurisdiction of the United States and therefore the barracks, it 

cannot legislate without regard for constitutional rights 

recognized by the Supreme Court. I can find no support, in law 

or logic, for the proposition, implied by § 1466A(d)(5), that 

Stanley does not apply in the special maritime and territorial 
United States v. Bowersox, No. 12-0398/AR 

10

jurisdiction of the United States. Even if Congress intended to 

criminalize the depictions at issue, where an accused is only 

convicted of constitutionally protected conduct, the fact that 

the statute expressly provides that it “is not a required 

element of any offense under this section that the minor 

depicted actually exist” does not save the statute.5

 § 1466A(c). 

Where there is tension between a constitutional right and a 

statute, the constitution trumps. See Marbury v. Madison, 5 

U.S. 137, 180 (1803) (“a law repugnant to the constitution is 

void”). 

I may not agree with Appellant’s choice of reading 

material, but he was charged only with constitutionally 

protected conduct, in a place deserving of constitutional 

protection, and I would therefore reverse the decision of the 

United States Army Court of Criminal Appeals. 

 

5

 I agree with Part III.A of the majority’s decision insofar as 

it suggests that the combination of § 1466A(a)(1) and § 1466A(c) 

is not constitutionally deficient. Bowersox, __ M.J. at __ (8–

10); see also United States v. Whorley, 550 F.3d 326 (4th Cir. 

2008) (finding the accused’s conviction under § 1466A(a)(1) for 

the receipt of obscene depictions of minors constitutional). 

However, unlike the charge for receiving obscenity under 

§ 1466A(a)(1) in Whorley, Appellant was charged with 

constitutionally protected possession under § 1466A(b)(1). 

Therefore, the Whorley court’s analysis of § 1466A(c) is 

distinguishable to the point of irrelevance, and this Court must 

look specifically to the interaction between § 1466A(b)(1) and 

(c).