Freedom of Speech in the Military - Sgt Gary Stein

An active duty Marine is facing an administrative discharge for comments he made on his Facebook page dubbed Armed Forces Tea Party, according to various news reports.

The charge levied against Gary Stein, according to the news report above, is using contemptuous words against the President and engaging in political activities. Reuters reports that the comment that got Stein in the government's crosshairs was, in Stein's paraphrased version, "I say screw Obama. I will not follow orders given by him to me." The article then says that Stein clarified the comment to mean he would not follow unlawful orders from the President, and that at one point the ACLU sent a letter to his commander in 2010 about his Facebook page stating, the ACLU "strongly supports the First Amendment rights of service members to discuss and critique the government's policies and conduct."

Can those serving in the military critique government policy and conduct? The Reuters article quotes an Army veteran and radio host, Rick Rogers, who stated, "There's a firewall between the military and civilian politics -- you don't criticize the government while you're in uniform."

I disagree with Rogers. There is nothing that prevents service members from criticizing the government. As to Stein, I think the "screw Obama" comment might be found to be contemptuous by the administrative discharge board. His clarified statement that he would refuse unlawful orders is perfectly fine, since it is expected and legally required of all who serve in uniform. Of course that doesn't mean the non-judicial administrative board will agree. It's unfortunate that the Corps has decided to pursue an administrative discharge board rather than go the court martial route. Administrative discharge boards for legal issues are, in my opinion, only used when the government is afraid that its claims might lose in the judicial branch because they can't withstand the scrutiny of the legal system.

For example, had the government chosen a court martial, it might lose on the charge that Stein's contemptuous speech against the POTUS was illegal. Article 88 of the UCMJ states:

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

Stein is not a commissioned officer, so he did not violate Article 88. As to political activities, that would likely be difficult for the government to prove unless they have evidence that Stein was pushing a particular candidate or political party, and did so while representing the military.

The administrative discharge board is not a legal proceeding, and Sgt Stein will not enjoy the benefits of the legal system when his "case" is heard. That is unfortunate.

UPDATE: According to CNN, Stein also said in January that the President is "the 'Domestic Enemy' our oath speaks about." I think he's going to have a tougher time than I thought.