A DISCUSSION OF LAW AND JOURNALISM

Go Ahead, Critique the Commander-in-Chief

By Russell Smith

President Obama hasn’t hesitated to silence critics of his military policy.

First, he kept Private Bradley Manning in solitary confinement for months after Pvt. Manning allegedly leaked thousands of military documents revealing U.S. human rights abuses to the whistleblowing website WikiLeaks. Then President Obama pressured Yemen to jail a journalist who uncovered evidence that the U.S. was lying about missiles lent to Yemen and used in a strike that killed Yemeni citizens. Now President Obama is discharging U.S. Marine Corp Sergeant Gary Stein for posting critical comments of the president and his military leadership on Facebook.

Sgt. Stein is 26 years-old, a nine-year veteran, and a Tea Partier. His Facebook group, Armed Forces Tea Party, critiques liberal politicians and policies. An example the group’s sharp wit: superimposing the faces of President Obama, Vice President Biden and Rep. Nancy Pelosi onto the movie poster for “The Incredibles“, but with renamed title, “The Horribles“.

Okay, not that witty. But perfectly legal.

In 2010, the notoriety of the Armed Forces Tea Party got Sgt. Stein an invite to appear on MSNBC’s “Hardball with Chris Matthews” – but at the Marine Corps’ command, Sgt. Stein declined. At the time, Sgt. Stein was also directed to put a disclaimer on the Armed Forces Tea Party group, indicating it was not affiliated with the Marine Corps. He agreed and did so.

But two years later, Sgt. Stein received notice that his political postings constituted “serious misconduct” mandating the termination of his service to his country.

Sgt. Stein’s “other-than-honorable” discharge – resulting in a loss of rank and veteran’s benefits – has drawn reactions from politicians to pundits. Lawyers from the ACLU and the U.S. Justice Foundation have claimed that discharging Sgt. Stein for his political speech would violate his first amendment rights and have pledged to file a federal lawsuit on his behalf.  But some members of the media disagree, arguing that soldiers must give up their first amendment rights and fall in line behind their commander-in-chief.  

While it is true that members of the military have less free speech rights than average citizens, the military’s blanket ban on critical speech from service members violates the first amendment.

A March 1 Facebook posting apparently provided the military with the impetus for Sgt. Stein’s discharge. In that post, Sgt. Stein wrote:

As an active duty Marine, I say screw Obama and I will not follow all orders from him; will do my job better than the next guy. But as for saluting Obama as Commander in Chief, I will not.”

Another marine posted a reply, reminding Sgt. Stein of his military oath. Sgt. Stein responded:

You’re right. It said to defend the — I will support and defend the Constitution of the United States against all enemies, foreign and domestic. Obama is the economic enemy. He is the religious enemy. He is the “fundamentally change” America enemy. He is the domestic enemy.”

Within five minutes of posting, another marine who served as an administrator of the Armed Forces Tea Party group deleted Sgt. Stein’s comments. But not before a third marine screen-captured the conversation and sent it Sgt. Stein’s commanding officer.

Sgt. Stein has since clarified his comments, saying that all he meant was that he would not follow “unlawful orders” from President Obama. A careful reading of the post reflects that this is actually the most plausible understanding. He wrote that he would not follow “all orders” from President Obama –implying that he would follow some orders. (Tea partiers aren’t the only ones who believe that our president has issued arguably illegal military orders in the past and shown a willingness to continue to do so in the future.)

After a hearing in front of the Administrative Separation Board, Sgt. Stein was fired from the Marine Corps because: (1) he maintained the Armed Forces Tea Party Facebook group in violation of a Department of Defense directive that bans members of the military from participating in partisan political activities and (2) his March 1 post allegedly violated a provision in the Uniform Code of Military Justice prohibiting speech detrimental to the “good order and discipline in the armed forces.

As David Loy, the legal director for the ACLU foundation of San Diego, points out, according to military precedent it is doubtful that Sgt. Stein even broke one of those rules. But even if he did, even if he broke both these rules, the first amendment should shield Sgt. Stein from such an unconstitutional discharge.

Political speech” intended to rally public support for a particular position, candidate or issue is considered to be at “core” of the first amendment.  Both Sgt. Stein’s Facebook group which advanced a directly political agenda, and his March 1 post that advanced his opinion of President Obama’s policies are examples of core political speech.

At the same time, the military has a long history of punishing speech that civilians wouldn’t imagine being criminal. Take for example the rule that Sgt. Stein is charged with breaking: engaging in speech that is detrimental to the “good order and discipline in the armed forces.” Historically, this rule has been applied to punish speech that is merely disrespectful or insulting.

Recognizing the need for obedience in the military, the Supreme Court has weakened the first amendment’s protections for members of the military. In 1974, the Court said in Parker v. Levy that the military could punish Captain Howard Levy for urging African-American soldiers under his command to not fight in the Vietnam War. Then, in 1980, the Court upheld an Air Force rule in Brown v. Glines that required that officers get approval from their commanders before distributing any petition on their base. Finally, in 1986’s Goldman v. Weinberger, the Court approved an Air Force dress code that prohibited Mr. Goldman from wearing his yarmulke.

But these cases do not permit the military to restrict speech that occurs off of the military base.  And the rationale that requires obedience and respect among the enlisted men and women and their commanders rarely makes sense off the base.  In Goldman, for example, there is at least some logic behind the notion that banning Mr. Goldman from wearing his yarmulke while on the base forged unity among the members of the Air Force. But what if the dress code was still in force when Mr. Goldman visited his parents’ home on the holidays? How would the dress code be creating unity among members of the Air Force then?

The constitutional problem with a dress code that extends to your parents’ house is called overbreadth. A regulation of speech that has a substantial number of its applications that don’t make sense is unconstitutionally overbroad. Most recently in 2010, in United States v. Stevens, the Supreme Court struck down a law that intended to ban depictions of animal cruelty because it also criminalized a substantial number of legitimate depictions of hunting.

Similarly, the military’s efforts to extend its rule against partisan affiliation on Facebook would create constitutional overbreadth problems. There are countless partisan positions – from the farm subsidies to the gold standard – a member of the military could advocate for on Facebook that couldn’t conceivably cause disunity. If Sgt. Stein’s upcoming lawsuit challenges the military’s rule against partisan affiliation, the federal court would likely strike down the rule as an overbroad infringement of free speech.

Note that if a soldier rants about what a jerk his commanding officer is on Facebook, his speech may be punished under the rule against disrespectful conduct because of the personal tension it would cause between the soldier, the commanding officer, and the rest of their unit on the base.

But Sgt. Stein’s less than civil criticisms of President Obama would not likely cause a similar disruption among the members of his unit. When balancing Sgt. Stein’s right to engage in core political speech versus the government’s interest in respectful discourse, a federal court would likely conclude that applying the rule against speech that is detrimental to the “good order and discipline in the armed forces” to Sgt. Stein’s March 1 post violates his first amendment rights.

Discharging Sgt. Stein has brought much more attention to his political perspective than if he’d simply been allowed to speak freely. And while Sgt. Stein may enjoy a new platform from which to express his views (he’s already been approach to do some talk radio), other members of the military, fearing an “other-than-honorable” discharge, will have their speech chilled.

As the Obama Administration vigorously protects torturers and launches civilian killing drone strikes, maybe that’s exactly what it wants.

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  1. Leland Ness says:

    He also said he would not salute the president because of his differing beliefs. That is no different from saying he refused to salute his company commander or battalion commander. Sorry Sgt Stein, there’s the door.

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