Anti-Obama Comments Lead to Discharge of Marine
“Screw Obama. I will not follow all orders from him.” In the sharply divided political world we live in today this comment seems commonplace, irrelevant, and to be honest, ignorable. The truth could not be further from that line of thinking. The media has avoided this sensitive subject, as have the candidates on the debate trial, but the question must be asked: when these comments are made by an active duty Marine do they constitute free speech, or insurrection? 26 year old Sgt. Gary Stein received an “other than honorable” discharge from the Marine corps this week, meaning that after nine years of service he will not be given the benefits of VA, pension, or other perks such as the GI bill for education. Stein, who runs a private Facebook page for the Tea Party military group he founded over two years ago, plans to appeal to Federal Courts on First Amendment grounds. Sgt. Stein claims he was wrongfully discharged because he was acting within the bounds of his right to free speech.
This now becomes one of those battles in which the only clear thing about it is how unclear it is. There is no black and white in this situation, only hues and tones of gray. J. Mark Brewer, an attorney for Sgt. Stein, framed the argument precisely when he said, “the law is really clear that a person does not give up their First Amendment right to free speech when they go into the military.” He cites a Department of Defense regulation which he believes to be unconstitutional. There is bitter irony in this case when one considers that the men who volunteered to defend constitutional rights may be punished because he was not granted the rights he lays his life on the line to protect; however, irony does not create justice. Can the Department of Defense constitutionally limit the constitutional rights of their military personnel? The question may not even go that far. The question walks the fine line of what statements constitute free speech, and what constitutes insurrection? The law is clear that free speech does not have blanket protection to all people from whatever they say. For instance; if a military of government official were to give military or political secrets to an enemy of the United States they would be charged with Treason, an offense punishable by the death penalty. Similarly, in the Civil War, where the constitution was already established, and free speech upheld, deserters were put to death by firing squad. Deserting military service is certainly a form of expression; against commanding officers, against the cause of a war, against violence itself, yet they were still punished nonetheless. While these are extreme cases, they demonstrate effectively that one cannot argue the fact that free speech is not always un-punishable. Sedition, it seems, takes higher precedent under law than free speech.
It seems at first glance that the military might be overstepping boundaries in order to pick a personal bone with a man who seems bitter, but it goes much deeper than that. In the two years Stein has been running his Facebook page he has made provocative and sharply critical comments such as calling President Obama a coward, or stating that he is the economic and religious enemy of the United States, and not been punished. In fact, he even stated through an attorney that his partisan frenzy has never resulted in so much as a questioning until he said he would not follow all of the President’s orders. In military service, refusal to follow direct orders creates liabilities; if that liability is created in a combat zone it can result in injury or death of civilians or servicemen. Presumably, this is where the Pentagon drew the line. It seems that personal opinions and political agendas are tolerated by the Pentagon under free speech, but when one refuses to follow orders they violate military code, and become a safety issue. This is the message the Pentagon sends, and they are right. Sgt. Stein can refuse to follow orders, but he cannot do it and be a Marine. The military is established on order and organization, if one man defies that the system does not function properly.
However, Sgt. Stein never actually defied anything; he only expressed that he would. To date, Stein has apparently followed all of the orders from his commanding officers, including the Commander in Chief. If his actions have demonstrated a different type of conduct, why does the Pentagon now question his statements? The have known (or at least ought to have known) for some time that Stein had personal feelings for President Obama which were less than flattering. He is not the first despite the military having rules against this since Civil War times. We would be naïve to the exponential degree to believe that every military serviceperson in the history of this nation has agreed with and loved all of their commanding officers. Devotion and admiration are not in question, nor should they be; obedience and compliance are the concerns of the Pentagon. Stein has released an apology for his comment, saying: “I have said over and over that the words that I used were tasteless and I could have articulated my point more clearly. I am man enough to admit my mistakes which I did from the beginning. I have never been given an order to stop posting.” Stein later amended his comment to say he would not follow unlawful orders from the President.
The military found the post to be “disrespectful and insulting to the President, in violation of Article 134 of the Uniform Code of Military Justice.” The concern here is then freedom of speech. It would seem that the military does expect to be able to regulate the speech of their servicemen and women. If this is the case, Brewer may well be correct that the regulation is unconstitutional. The Constitution provides no exceptions to free speech; however, as stated above, there are implied exemptions from its protection. Had Sgt. Stein actually disobeyed a direct order from the Commander in Chief there would be no question as the whether or not he deserved to be discharged; the problem is that he did not do that. So the message sent by the military is that implying you do not want to follow orders is enough to throw someone out of their service. If this is the case the only possible solution to the problem may be to have the entire military systematically removed and replaced with every election so that all officers and general infantry belong to the same political party as the President. Clearly this is irrational and impossible. Can one be discharged for merely making a statement of opposition? Certainly these statements may lead to others agreeing and a pseudo-coup or uprising could take place, but the justice system does not give a citizen the death penalty because they have shown violent tendencies; that person must actually commit murder first. So we are still left with the same question: does Sgt. Stein’s comment constitute and expression of free speech, or insurrection and sedition? Can the military regulate the basic expression of thought by its members? Does one have to actually disobey orders to be charged with disobeying orders? And finally, should the military be able to expel a serviceman for simply not liking the President, and showing disrespect? These answers are not clear, and Patriotslog will not pretend to have them. Someone does, and maybe that someone is a Congressman, General, or a Supreme Court Justice; but we need a thorough discussion about this topic to find one. Can the Military limit free speech for its members? Your opinion is as good as mine.
29 April 2012
Posted on April 29, 2012, in Constitutional Law, Patriotslog Articles and tagged anti obama remarks, bitter irony, discharge of marine, free speech, free speech for soldiers, government, human rights, marines, military code, screw Obama, sgt discharged, tea party. Bookmark the permalink. 1 Comment.