Surprising Coalition of Free Speech Advocates Join to Protect Marine’s Rights

SAN DIEGO—To protect service members when they comment on issues of public concern, the ACLU of San Diego & Imperial Counties is joining with Gary Kreep and Nathan Oleson, of the United States Justice Foundation, Oathkeepers, J. Mark Brewer, of Brewer & Pritchard, and Herbert W. Titus and William J. Olson, of William J. Olson, P.C., to file a lawsuit today seeking to stop the Marine Corps from discharging Sergeant Gary Stein because he exercised his First Amendment rights.

There will be a temporary restraining order hearing today at 12 noon
in Federal Court before the Honorable Marilyn Huff.

Sergeant Stein has served in the Marine Corps for almost nine years. His current term of service expires on July 28, 2012, and he would like to continue serving his country. But the Marine Corps is trying to summarily throw him out because he spoke out on Facebook to express political opinions in his capacity as a private citizen.

Sergeant Stein is alleged to have posted on his Facebook page various criticisms of President Obama and questions concerning Obama Administration policies, as well as critiques of Senator John McCain, Congressman Ron Paul, Newt Gingrich, Rick Santorum, Mitt Romney, and others. Since at least April 2010, the Facebook page that he co-hosts with three other individuals has carried a disclaimer that all statements on that page are personal views, not made in any official capacity and not representing the views of the Marine Corps.

More recently, Sergeant Stein spoke against unlawful orders in the abstract.  He did not disobey or advocate disobeying any particular order actually issued by any superior officer.  Though some of the language he initially used in discussing such hypothetical orders might have been viewed as intemperate, he clarified repeatedly and publicly that he was only discussing the settled principle of military law that servicemembers should not follow unlawful orders.

Nonetheless, on March 21, 2012, his commanding officer notified him that the Marine Corps would convene an “administrative separation hearing,” in an attempt to give him an “Other Than Honorable” discharge, which is the worst possible mark on a servicemember’s record that can be imposed without the convening of a court martial.

 According to the “Notification of Administrative Separation Proceedings,” Sergeant Stein “allegedly made statements regarding the President of the United States that are prejudicial to good order and discipline, as well as service discrediting” and “allegedly created, administered, and provided content to a Facebook page, as well as other online media sources, in violation of DOD Directive 1344.10,” which purports to regulate political speech of servicemembers. The Notification does not allege any grounds other than Sergeant Stein’s political speech.

“The military may be different from the civilian world, but it’s not exempt from the First Amendment,” said David Loy, legal director for ACLU of San Diego & Imperial Counties. “Sergeant Stein didn’t say anything for which the Marine Corps has any right to punish him. He did not threaten order or discipline or take positions that anyone would attribute to the Corps. Indeed, the Corps is threatening loyalty and morale by persecuting a good Marine for exercising his free speech rights.”

The ACLU of San Diego & Imperial Counties strongly supports the First Amendment rights of servicemembers to discuss and critique the government’s policies and conduct. Speech on issues of social and political concern is recognized by the courts, including military courts, as “the core of what the First Amendment is designed to protect.” (United States v. Wilcox, 2008)

The administrative separation hearing is currently scheduled for April 5, 2012, at Camp Pendleton at 8 am. The San Diego ACLU and co-counsel are asking the court to issue a temporary restraining order to enjoin discharge proceedings or at least give Sergeant Stein enough time to prepare for the hearing. Others, including Representative Duncan Hunter, have also called on the Marine Corps to halt the proceedings.