Sergeant Gary Stein’s fight to stay in the Marine Corps is one of the most important First Amendment court cases of the year. Given the First Amendment’s central place in our Bill of Rights, this case deserves close scrutiny by those who value our Constitution. For those who are unfamiliar with the case, Sergeant Stein was recently given an “other than honorable” discharge from the Marine Corps for postings he made about President Obama on Facebook. Specifically, he wrote: “Screw Obama and I will not follow all orders from him.” Sergeant Stein later clarified that he would not follow unlawful orders from Obama. Why does this case matter? It matters because it deals with a soldier’s right to free speech. Before you say “whoa, soldiers are not entitled to free speech rights like civilians are,” consider what the military has to say on this issue. Troops are encouraged to “carry out the obligations of citizenship” and are allowed to express a “personal opinion on political candidates and issues.” U.S. soldiers are some of the most respected people in our country. If anyone deserves to have free speech rights, it is the military. After all, they risk their lives for the cause of freedom. Shouldn’t they be able to partake in those freedoms as well?
After serving for nine years as a Marine (including time spent in Iraq), Sergeant Stein was given an “other than honorable discharge.” This was a big decision by those who made it. He did not have to be discharged at all for the remarks he made, or he even could have been given a still-negative “general discharge.” Instead, he was given an “other than honorable discharge” typically reserved for those whose conduct significantly deviates from what is expected of a US military member. He will lose most of his benefits and be demoted in rank to lance corporal as a result of the discharge. In short, he will lose his career and lose it in a bad fashion.
Sergeant Stein should have not been discharged as a result of what he said. A broad spectrum of supporters have rallied to his defense, from the Tea Party and the United States Justice Foundation to even the ACLU. On his own behalf, Stein stated: “If I am guilty of anything, it would be that I am American, a freedom loving conservative, hell bent on defending the Constitution and preserving America’s greatness.” A former staff judge advocate for the Marine Corps, Brigadier General David Brahms, came to his defense. Brahms, with 49 years as a lawyer with the Marines, said in a written statement: “I do not believe that… the behavior in question violates the cited UCMJ (Uniform Code of Military Justice) provision.” Furthermore, Brahms stated that the rule which Stein is said to have violated, Department of Defense directive 1344.10, is difficult to understand. He said: “If I cannot understand 1344.10 as a 74 year-old retired brigadier general and staff judge advocate to the Commandant of the Marines, there is little hope that a sergeant would understand.” When you consider that Sergeant Stein even put up a disclaimer that the views he expressed were not those of the US military, you have a compelling case that Sergeant Stein should not have lost his job over the comments he made.
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