By: Jonathan Klein
After serving for nine years in the Marine Corps, Sergeant Gary Stein now faces the prospect of finding a new job. Last week, Sgt. Stein appeared before an administrative review board tasked with determining whether Stein would receive an ‘other-than-honorable’ discharge. Stein’s crime? Criticizing President Obama on Facebook. The case raises tough questions about the extent to which members of the armed services can exercise their First Amendment right to freedom of speech.
Marine Corps officials argue that Stein repeatedly posted anti-Obama statuses on Facebook. Media reports indicate the sergeant also posted anti-Obama comments on the wall of a Facebook group used by active-duty military meteorologists in their daily course of work.
‘Obama is a Liar’
The Facebook posts criticize the president to varying degrees. In one January post, Stein called President Obama, who is the Commander-in-Chief of the armed forces ex officio, “a liar.” In more recent posts, the sergeant questioned the legitimacy of President Obama’s birth certificate and suggested he would not follow orders from Obama. Clarifying the latter statement, Stein later said he would not follow “unlawful” orders from Obama.
Media reports also suggest that Marine Corps officials became concerned about Stein’s habit of discussing politics months ago, but chose to begin discharge proceedings only after Stein’s posts became increasingly critical of the president. In a January 28 Facebook post, Stein said the President “is the ‘Domestic Enemy’ our oath speaks about.” The oath Stein was referring to – an enlistment oath given to every person joining the armed forces – reads in part: “I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic… and that I will obey the orders of the President of the United States.”
An ‘Other-Than-Honorable’ Discharge
On April 5, an administrative board of three Marine Corps unanimously recommended that Sgt. Stein receive an ‘other-than-honorable’ discharge, which would effectively strip the sergeant of his access to veterans’ benefits. The board’s ruling now goes to Brigadier General Daniel Yoo, commander of the Marine Corps Recruit Depot in San Diego, who can affirm or reject the board’s recommendation to discharge Stein.
Given the board’s unanimous ruling and the totality of the circumstances, military law experts are now saying the Marines seem likely to discharge Sgt. Stein.
‘On To Another Battle’
For Stein, however, the discharge is only half the battle. Attorneys with the ACLU filed suit on Stein’s behalf, arguing in federal court that the Pentagon’s political speech policy infringes on the right of service members to engage in political speech. Among other things, the Pentagon policy prevents service members from voicing support for or opposition to a sitting president.
In his defense, Stein’s attorneys points out the Facebook posts were just talk and that he fully intended to execute the President’s orders. However, that’s something Marine Corps officials had no way of knowing. As prosecutors for the Marine Corps noted, Stein’s behavior raised legitimate questions about his willingness to carry out the President’s orders.
Stein’s attorneys also point out that Stein posted on Facebook after work, not on government time. That argument misses an equally important point: Stein posted many anti-Obama comments on a Facebook group that was accessed by servicemen in the regular course of their work. Most importantly, Stein’s comments had the potential to affect the morale of other service members, some of whom went on the record as questioning why Stein was not prosecuted sooner for violating the Pentagon’s political speech policies. There’s nothing wrong with publicly criticizing President Obama, but that behavior becomes troublesome when Obama is your boss.
Nobody involved in this case disputes that servicemen can engage in some forms of political speech under the protection of the First Amendment. The question is when that speech crosses the line between harmless talk and dissent that threatens the military’s ability to carry out its mission. Ultimately, as the Supreme Court has recognized before, the military must be allowed to curtail some individual rights of its members for the sake of order and unity.
