Marine Exercises Free Speech

Story first appeared in timesunion.com.

CAMP PENDLETON, Calif. (AP) — A Marine who criticized the President on his Facebook page has committed misconduct and should be dismissed, a military board recommended late Thursday.  A San Diego Civil Rights Lawyer could become involved in the case based on First Amendment rights.

The Marine Corps administrative board made the decision after a daylong hearing at Camp Pendleton for an accused Marine Sergeant.

The board also recommended that the Marine be given an other-then-honorable discharge. That would mean he would lose his benefits and would not be allowed on any military base.

The board's recommendations go to a general who will either accept or deny them. If the general disagrees with the board, the case could go to the secretary of the Navy.

The Sergeant's lawyers argued that the 9-year Marine, whose service was to end in four months, was expressing his personal views and exercising his First Amendment rights.

During the hearing, the prosecutor said that the Marine went as far as superimposing images of the President's face on a poster for the movie "Jackass."

The prosecutor argued that the behavior repeatedly violated Pentagon policy that limits the free speech rights of service members, and said he should be dismissed after ignoring warnings from his superiors about his postings.

The government submitted screen grabs of the postings on one Facebook page he created called Armed Forces Tea Party, which the prosecutor said included the image of the President on the "Jackass" movie poster. The Sergeant also superimposed the President's image on a poster for "The Incredibles" movie that he changed to "The Horribles," the prosecutor said.

The prosecutor also said anti-Presidential comments by the Marine that were posted on a Facebook page used by Marine meteorologists were prejudicial to good order and discipline, and could have influenced junior Marines.

The Sergeant's security clearance was taken away and he has no future in the Marine Corps because he can't do his job without that clearance.

During the hearing prosecutors were trying to dredge up any damaging information they could against the Marine.

The Sergeant's attorney expressed after the hearing that he hoped that the recommendation would be rejected by the general, saying the case will go forward. The military has had a policy since the Civil War limiting the free speech of service members, including criticism of the commander in chief.

Pentagon directives say military personnel in uniform cannot sponsor a political club; participate in any TV or radio program or group discussion that advocates for or against a political party, candidate or cause; or speak at any event promoting a political movement.

Commissioned officers also may not use contemptuous words against senior officials.
Backed by a team of lawyers and congressmen, the Marine has said he is fighting for his constitutional rights and should be allowed to stay in the military. His lawyers and the American Civil Liberties Union contend his views are protected by the First Amendment.

The Sergeant has said his opinions are his own and has put a disclaimer on his Facebook page saying so. His attorneys argued service members have a right to voice their opinions as long as they do not appear to be presenting their views as being endorsed by the military. They say the Pentagon policy is vague and military officials do not understand it.

The Marine Corps has said it decided to take administrative action after Stein declared on Facebook that he would not follow orders from Obama and later clarified that statement saying he would not follow unlawful orders.

The Sergeant could face other-than-honorable discharge while seeing his rank reduced to lance corporal and losing his benefits. The nine-year veteran was set to finish his service in four months.

He said he was removed from his job at the Marine Corps Recruiting Depot in San Diego last month and given a desk job with no access to computers.

A former Marine who is also a California House Representative, wrote a letter to the commanding officer stating the sergeant should not face dismissal for an opinion shared by a majority of Marines. It was stated that he was referring to the statement that he would not obey unlawful orders.

The Sergeant said his statement about the President was part of an online debate about NATO allowing U.S. troops to be tried for the Quran burnings in Afghanistan.

In that context, he said, he was stating that he would not follow orders from the president if it involved detaining U.S. citizens, disarming them or doing anything else that he believes would violate their constitutional rights.

For more law related news, visit the Nation of Law blog.