The Bounds of Military Expression
Last week, the that Sgt. Gary Stein is in the process of being dismissed after making “political statements” on Facebook. This followed an investigation initially ordered on March 8, which revealed that Stein, the creator of the public “Armed Forces Tea Party” page had posted negative remarks about the President and Secretary of Defense.
Sgt. Stein described the Commander-in-Chief as “the ‘domestic enemy’ our oath speaks about,” said that he would not obey what he perceived to be unlawful orders, and wrote that Secretary Panetta’s statements about going to war without congressional approval amounted to a “high crime.” As a result of the investigation, Stein now faces an administrative discharge and possible demotion. In comments to the Associated Press, he stands by his online remarks and contends that he has done nothing wrong.
Sgt. Stein does have defenders, none more prominent than Representative Duncan Hunter (R-CA). Rep. Hunter, a Marine reservist, is upset by the prospect of Stein’s discharge. He says that the case had been politicized and that Stein was not acting in uniform when he posted the statements, but merely using “modern technology which allows us to talk to way more friends way easier.”
Rep. Hunter asserts that Stein’s comments on Facebook were akin to him writing a letter or an email to friends – private communications from someone acting as a private citizen, not a Marine. But is Hunter correct in arguing that Sgt. Stein’s discharge is unwarranted?
Military Expression and Sgt. Stein
The first step in determining whether Sgt. Stein’s discharge is unwarranted is the argument that his First Amendment right to free expression was violated. The United States has a long history of maximizing the ability of citizens to express their views unfettered by state interference. However, part and parcel with the fight for strong First Amendment rights is the long-standing argument that they can be limited in certain sensitive situations. The court in United States v. Voorhees states that “[t]he right to free speech is not an indiscriminate right; it is qualified by the requirements of reasonableness in relation to time, place, and circumstance.” 16 C.M.R. 83 (C.M.A. 1954) (citing Schenck v. U. S., 249 U.S. 47 (1919)). In Schenck, the Supreme Court argued that during wartime, many things that might be said in peacetime are so adverse to the nation’s efforts that they will not be considered constitutionally protected for as long as the nation is at war. Schenck, 249 U.S. at 52. When applied to military speech, the standard in Schenck is interpreted as a determination of whether the limitations on speech are reasonable and based on military necessity. United States v. Howe, 37 C.M.R. 555 (A.B.R. 1966).
Since it’s been established that the government is able to restrain otherwise legitimate speech when operating in the military context, Sgt. Stein’s remaining argument is that his conduct was not prohibited by the government’s constitutional limitations on military speech. Unfortunately for Sgt. Stein, his conduct appears to be explicitly prohibited in the armed forces through Department of Defense Directive 1344.10. This directive governs political activities by members of the armed forces. Among other things, members of the armed forces are prohibited from serving in any official capacity with or be listed as sponsors of a partisan political club; speaking before a partisan political gathering; or participating in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
Sgt. Stein’s remarks on the public Armed Forces Tea Party page on Facebook could be interpreted as violating each of these prohibitions. First, Stein has been described as the creator of the Facebook page where he posted his comments on the President and Secretary of Defense. While being the creator of a Facebook page is by no means an official position, it can certainly be construed as Stein offering his sponsorship to the Tea Party cause. Second, he made his comments about the President in the course of a Facebook discussion about events in Afghanistan. These remarks in a discussion thread on a public and highly trafficked Facebook page, while not quite as infamous as a television debate or radio call-in, seem to qualify as a group discussion advocating against a Presidential candidate and his particular political cause.
In addition to the aforementioned prohibitions, according to Directive 1344.10 commissioned officers are not permitted to use contemptuous words as prohibited by the Uniform Code of Military Justice Art. 88. The directive also includes a catchall provision, which prohibits any activity contrary to the spirit and intent of the directive. The catchall provision is reflective of UCMJ Art. 134, which makes all conduct not specifically mentioned that brings discredit to the armed forces or adversely affects the good order and discipline of the armed forces punishable by court-martial.
Article 88 of the UCMJ is extensively discussed in United States v. Howe, a case that bears significant similarity to Sgt. Stein’s current predicament. UCMJ Art. 88 makes any commissioned officer “who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security . . . ” punishable by court-martial. In Howe, one Lieutenant Howe is convicted of violating Art. 88 as a result of his participation in a protest of the Vietnam War. Howe, 37 C.M.R. 555. Howe attended the event in his civilian attire, but could have been seen by 500 to 1500 spectators holding a sign that described President Lyndon B. Johnson as a “PETTY IGNORANT FASCISTS [sic].” Id. The Army Board of Review rejected Howe’s claim that the charges violate his First Amendment rights, noting that reasonable limitations borne of military necessity are acceptable. Id.
While Sgt. Stein is not a commissioned officer, it is instructive to evaluate his case in comparison to the facts in Howe as he may be similarly evaluated under the catchall provisions of Department of Defense Directive 1344.10 and UCMJ Art. 134.
The key in the Howe decision is the public nature of his actions and the clearly contemptuous characterization of the President. Nearly 1500 people could have seen Howe carrying his sign at the demonstration. Sgt. Stein’s comments on the public Facebook page were at least as visible as Howe’s sign. Though the number may be inflated due to the recent attention, the Armed Forces Tea Party page currently has over 25,000 “likes” on Facebook. A discussion on that page could have attracted hundreds, if not thousands of views. Stein’s comments about President Obama are less extreme than Lt. Howe’s thoughts on President Johnson, but that does not mean they do not reach the level of contemptuous. Stein refers to the President as the “domestic enemy” referenced in his oath of enlistment, meaning that he is willing to defend the Constitution of the United States against President Obama. Similarly, Stein essentially accuses the Secretary of Defense of making statements that constitute a “high crime” or treason. These comments go beyond appraisals of their conduct and teeter closer to personal attacks.
Ultimately, Sgt. Stein was not quite calling the President a fascist, nor may he have intended to disobey orders at any point. Unfortunately for him, his negative assessments of President Obama and Secretary Panetta ventured a little too close to the line, and were made in a forum that was a little too public to be overlooked.