1st Amendment bars retaliation

My client was within his rights

Sgt. Gary Stein is a good Marine. But the Marine Corps is trying to kick him out because he spoke against President Obama’s policies. Even in the military, the First Amendment does not allow this kind of retaliation. Though the First Amendment applies differently to the civilian and military worlds, the Corps is not exempt from the Constitution. Servicemembers retain First Amendment rights to political speech. In U.S. v. Wilcox, the Court of Appeals for the Armed Forces held that the First Amendment protected a soldier who identified himself online as a “US Army paratrooper,” spouted white supremacist ideology and proclaimed, “This government is not worth supporting in any of its components.”

Sgt. Stein’s speech was far less extreme. He initially responded to a report that American soldiers might be turned over to the Afghan government for trial with some intemperate language about the president. But then he apologized and repeatedly clarified that he was speaking in general about defending the Constitution and not following unlawful orders, as military law itself requires.

Under Wilcox, this case does not present the “clear danger” to loyalty, discipline, mission or morale necessary to justify censorship. At worst, Sgt. Stein blew off some steam, but later cooled down and affirmed his belief in the Constitution and military law. If the military were to discharge every servicemember who has ever done the same, the armed services would be decimated.

The Corps also cannot legally discharge Sgt. Stein for operating the “Armed Forces Tea Party” Facebook page, which carries a prominent disclaimer that it does not speak for the military or the government. Therefore, it does not violate Department of Defense policy on political speech by servicemembers.

Even if it did, the policy is so confusing and overbroad that it cannot be enforced against Sgt. Stein. For example, it defines “partisan” activity as “relating to ... issues specifically identified with” political parties. There is virtually no issue not “identified with” a political party. The military could thus prosecute any servicemember who speaks on any issue. That violates the First Amendment, even in the military.