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. 

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’s what lawyers for Sgt. Gary Stein are arguing.

Sergeant Stein has called the president “the economic and religious enemy” and advocated for Mr. Obama’s 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’s face on a “Jackass” movie poster.

The US Marine Corps has charged that Sergeant Stein’s comments were “prejudicial to good order and discipline.”

The case raises questions that have long dogged the American military, says Eugene R. Fidell, who teaches military justice at Yale Law School. “It’s 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’s an age-old issue in an open society such as ours.”

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.  

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 “Impeach Nixon” was brought up on charges “and the authorities had to figure out what if anything was to be done,” Fidell notes. “I think they ultimately just said ‘To hell with it,' and let it go.” 

That’s because often “what authorities do not want is to create a martyr. That only tends to further embolden political dissidents in uniform,” Fidell says. “You don’t want to create heroes for the other side.”

Stein’s military defense lawyer, Capt. James Baehr, argues that the comments are protected by the First Amendment. “How can we expect Marines to participate in citizenship if they cannot join political discussions?”

The defense team also notes that Stein made these comments after hours, and not while he was on duty.

Lawyers representing Stein’s command have countered that the comments go beyond reasonable political discourse. “This is what he’s putting out to the public, and he’s a sergeant of Marines on active duty,” said Capt. John Torresala. “How can this not be prejudicial to good order and discipline?”

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. “He has clearly done things here that make it impossible for him to serve on active duty. The substance of what he’s said is truly intolerable.” 

In a post-hearing recommendation that was announced late Thursday night, a military panel recommended that Stein receive a “less than honorable” 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. “Our own people are questioning why this Marine is not being held accountable,” Torresala noted.

The board’s 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.