Can a Marine call Obama a 'religious enemy' - and still be a Marine?
A military panel recommended a 'less than honorable' discharge for a Marine who railed against President Obama on Facebook. But the Marine's lawyers say he has First Amendment rights.
Marine Sgt. Gary Stein is being considered for a 'less than honorable' discharge because of his criticism of President Obama on his Facebook page.
Gary Stein/AP
Washington
Is the US military violating the First Amendment by recommending the other-than-honorable discharge of a Marine who criticized President Obama on Facebook?
That鈥檚 what lawyers for Sgt. Gary Stein are arguing.
Sergeant Stein has called the president 鈥渢he economic and religious enemy鈥� and advocated for Mr. Obama鈥檚 defeat in the upcoming election through the sale of NOBAMA 2012 bumper stickers on one of four websites (including Armed Forces Tea Party) that Stein operates.
The Marine also allegedly put the president鈥檚 face on a 鈥淛ackass鈥� movie poster.
The US Marine Corps has charged that Sergeant Stein鈥檚 comments were 鈥減rejudicial to good order and discipline.鈥�
The case raises questions that have long dogged the American military, says Eugene R. Fidell, who teaches military justice at Yale Law School. 鈥淚t鈥檚 one of these cases that comes up from time to time that puts in high relief the tension between the rights of service personnel, and the obligations that come with the privilege of wearing the uniform. It鈥檚 an age-old issue in an open society such as ours.鈥�
There was a time that commissioned officers were encouraged not to vote, Mr. Fidell points out. That has since changed, and US troops are sent absentee ballots when fighting wars overseas.聽聽
Today, however, Pentagon rules continue to prohibit US troops in uniform from taking part in any TV or radio show that advocates for or against a political party or to speak at political rallies.
Still, similar debates about the line between freedom of speech and what might be regarded as threats to civilian control of the military continue. During the Nixon administration, for example, an enlisted soldier with a bumper sticker that read 鈥淚mpeach Nixon鈥� was brought up on charges 鈥渁nd the authorities had to figure out what if anything was to be done,鈥� Fidell notes. 鈥淚 think they ultimately just said 鈥楾o hell with it,' and let it go.鈥澛�
That鈥檚 because often 鈥渨hat authorities do not want is to create a martyr. That only tends to further embolden political dissidents in uniform,鈥� Fidell says. 鈥淵ou don鈥檛 want to create heroes for the other side.鈥�
Stein鈥檚 military defense lawyer, Capt. James Baehr, argues that the comments are protected by the First Amendment. 鈥淗ow can we expect Marines to participate in citizenship if they cannot join political discussions?鈥�
The defense team also notes that Stein made these comments after hours, and not while he was on duty.
Lawyers representing Stein鈥檚 command have countered that the comments go beyond reasonable political discourse. 鈥淭his is what he鈥檚 putting out to the public, and he鈥檚 a sergeant of Marines on active duty,鈥� said Capt. John Torresala. 鈥淗ow can this not be prejudicial to good order and discipline?鈥�
In general, officers tend to be held to a higher standard than enlisted troops like Stein. During the Johnson administration, a US officer who marched in an antiadministration parade was court-martialed under a specific statute that says commissioned officers cannot speak contemptuously of the president.
Yet there is little doubt Stein crossed the line of good conduct, Fidell argues. 鈥淗e has clearly done things here that make it impossible for him to serve on active duty. The substance of what he鈥檚 said is truly intolerable.鈥澛�
In a post-hearing recommendation that was announced late Thursday night, a military panel recommended that Stein receive a 鈥渓ess than honorable鈥� discharge.
Stein, a Marine for nine years, had to be reassigned from his previous job in the military as a weather forecaster after losing his security clearance, the result of bad debts, according to Captain Torresala.
Some of the postings were made on a Facebook page also used by military meteorologists, prosecutors noted. 鈥淥ur own people are questioning why this Marine is not being held accountable,鈥� Torresala noted.
The board鈥檚 recommendation in favor of other-than-honorable discharge for Stein are now with a general, who may chose to accept or reject them. If the general rejects the recommendation, the case could go to the Secretary of the Navy.