Thursday, April 26, 2012

At Ease Soldier!: Free Speech v. Illegal Political Participation

"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."
This is the Oath of Enlistment, which is recited and signed in writing by all soldiers in the United States Armed Forces.  One Marine, Sergeant (SGT) Gary Stein, apparently didn't read this oath in its entirety. Yesterday, SGT Stein was discharged from the Marines.  Worse yet, SGT Stein received an "other-than-honorable" discharged for these actions.  As a solider, any discharge other than an honorable one means trouble in the civilian world.  In this case, SGT Stein will lose most of his military benefits as a result of his discharge.  This means he cannot use military post or medical facilities, he cannot use the VA Loan, he cannot enroll in military insurance.  Now what did he do to deserve this?  Read about it after the break.

Basically, SGT Stein started a Facebook page called the Armed Forces Tea Party and posted his um, shall I say "thoughts" about President Obama and his policies.  He was subsequently discharged.  Of course, he argued that he was exercising his freedom of speech.  But before I get into SGT Stein's actions, here are the Department of Defense directives that control:  

Directive 1344.111 of the Department of Defense states that members of the military may:

Register, vote and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.                                                                                                                                                                                             
However, no member of the military may:

1344.1.2.4 - Serve in an official capacity with or be listed as a sponsor of a partisan political club;              
1344.1.2.5 - Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause;                                                                                                              
1344.1.2.6 - Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate or cause;                                                                                    
1344.1.2.7 - Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.                                                                                                            

Now let's examine what SGT Stein's actions were.   First of all, SGT Stein is an active duty member of the military so the Directive applies to him.  Next, as I stated earlier, SGT Stein created a Facebook page called Armed Forces Tea Party.  On this page, he called President Obama "the economic enemy," "the religious enemy," and the "domestic enemy."  He also questioned the president's birth certificate and stated, "Screw Obama, and I will not follow orders from him."  SGT Stein tried damage control and changed the statement to "I will not follow illegal orders from [Obama]."

Looks like SGT Stein expressed an opinion on a political candidate and issue AS a representative of the Marines.  In addition, he served as sponsor of his partisan political club, the Armed Forces Tea Party.  I think you can easily make the argument that his group of 30,000 online members constitutes a political gathering and that they promote a partisan political party.  Yup, looks like he violated the DOD Directive. And of course he is advocating against a political candidate and party.  Oh yeah, there's the Oath thingy where you swear to OBEY the orders of the President of the United States.

Of course, SGT Stein's lawyers argued that he was exercising his 1st Amendment freedom of speech and that he never actually disobeyed an order from President Obama.   This argument is pretty weak sauce (in my Shady voice).  As you know, the freedom of speech allows a citizen to speak out against a political party, or a politician and his policies.  However, unlike a civilian, SGT Stein operates under additional rules, regulations, and directives issued by DOD.  Furthermore, even acting like you won't follow a command can lead to discipline in the military. In addition, since President Obama is the Commander-in-Chief of the military, theoretically every order issued in the military is under his authority.   In short, the military limits his freedom of speech against the President of the United States.  And SGT Stein must follow ALL the president's orders. 
 The military is not a democracy and when you volunteer, you agree to the additional restrictions on your liberty and your life.  SGT Stein knew this coming in.  He chose not to listen and he paid dearly.  SGT Stein decided to place his personal opinion of the president above the Marines and his unit, and he injected politics into the military, which is a military faux paus.  In return, SGT Stein was discharged with "other than honorable" discharge, which is reserved for soldiers that have committed a serious offense.

To be fair here, members of the military do have the right to express their politcal views.  They just can't do it in uniform or use the military to help promote their political views.  I think that's fair enough.  Furthermore, the military gave SGT Stein the opportunity to remove all references to the military and to put a disclaimer on his page.  But SGT Stein decided not to listen.  He did however, put a disclaimer on his Facebook page but he also placed a superimposed picture of President Obama on a donkey and labeled it, "jackass." 

So if you're like the Janitor, and you keep score of Constitutional limits on the freedom of speech, score one point for a limitation on speech.  However, because SGT Stein had knowledge of the military's limits on political speech, because he was warned, and because he decided to continue violating a DOD Directive, I believe he was properly punished and I don't think the military unnecessarily limited SGT Stein's First Amendment right.  As for the amount of punishment he received, well, he was in the military where punishment is swift and harsh.  You can't say he wasn't forewarned.

I think this case will also forewarn other service members who decide to grandstand and use the military as a means to promote their political causes.  It's really not that hard - if you want to express your political views, do it on your personal time without any reference to the military.  Otherwise, you will face action under the Uniform Code of Military Justice.  And trust me you don't want that.

If I could speak to SGT Stein about this issue,  I would ask him one question.  I would ask, "If you were in the military for ten years, why didn't you have a problem following Bush's orders, even though we ALL knew they were improper?"  I think this is what irritates me about service members like SGT Stein.  They sat quietly while Bush sent us to war in the wrong country, while he embarrassed us across the world, and while he wrecked our economy.  Why didn't the Armed Forces Tea Party start then?  Why didn't people gamble their entire military careers over the obvious incompetence of Bush?  Well, I have my reasons but that is a another topic for another day.  For now, I'll end with a quote from the great thespian David Chapelle.  For SGT Stein, the tea party, and their elk, this is a scenario "when keeping it real went wrong."  

1) Did the military get this right when they discharged SGT Stein for expressing his political views?
2) Do you think SGT Stein's punishment was too tough?
3) Do you SGT Stein's discharge will send a message to other service members not to attack a sitting president in this manner?  Or will it make him a martyr?   

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