4/11/2012 12:54:00 PM,
Philip A. Janquart
(CN) - A U.S. Marine who made Facebook posts calling President Barack Obama "the domestic enemy" and saying he would not follow "all orders from him," cannot delay proceedings that could result in his discharge, a federal judge ruled.
Sgt. Gary Stein, a Marine for nearly nine years, says the First Amendment protects the statements he made about Obama on Facebook and the Marine's meteorological and oceanographic social-media website, METOC.
Stein says the military has known about his Facebook posts since 2010, but it made little attempt to restrict or correct those activities. After Stein canceled a 2010 appearance on "Hardball With Chris Matthews," on military orders, his supervisors directed him to add a disclaimer to his Facebook page, stating that the views expressed there were his own and not to be interpreted as the stance of the Marine Corps.
Stein added the disclaimer, but says he learned on March 21, 2012 that he faced an other-than-honorable discharge for misconduct.
Col. C.S. Dowling, Stein's commanding officer, made the official recommendation to institute administrative separation proceedings because Stein's posts about the Obama administration from 2010 and 2012 allegedly violated Department of Defense Directive 1344.10, which governs political activities of active duty armed forces members.
One post in particular that caught Dowling's eye occurred on March 1, 2012.
"As an active duty Marine, I say 'Screw Obama' and I will not follow all orders from him," Stein wrote, according to the disciplinary notice. "Will do my job better then [sic] the next guy ... But has [sic] for saluting Obama as commander-in-chief ... I will not. Your [sic] right it said to defend the 'I will support and defend the Constitution of the United States against all enemies, foreign and domestic' Obama is the economic enemy ... He is the religious enemy ... He is the 'fundamentally change' America enemy ... He IS the Domestic Enemy."
This post "was prejudicial to good order and discipline, as well as service discrediting in violation of Article 134, UCMJ," according to the notice Dowling sent on March 21. "From on or about November 2010 to the present you allegedly created, administered, and provided content to a Facebook page, as well as other online media sources, in violation of DOD Directive 1344.10."
With the separation proceedings scheduled to start April 5, Stein filed suit for a restraining order, claiming that the scheduling has left him inadequate time to present a defense.
U.S. District Judge Marilyn Huff in Los Angeles rejected the bid on the eve of the hearing, April 4.
"Plaintiff's counsel has suggested that the outcome of the administrative separation proceeding is foregone, rendering plaintiff's efforts futile," Huff wrote. "The court does not hold that belief. Plaintiff's counsel may raise his challenges to both Article 134 and DOD Directive 1344.10 to the administrative separation board and present their briefing and arguments to the board."
The separation board is not "required" to separate Stein, she noted. Even if the board meets its burden to justify discharge, Stein can still seek review process "initially to the Convening Authority and ultimately to the Board of Correction of Naval Records where plaintiff may seek redress for any injustice or error," the 17-page decision states.
Huff did, however, express concern regarding the military's "insistence on proceeding so expeditiously after plaintiff's nearly nine years of service."
If the government is attempting to "squelch" Stein and other service members from speaking on "matters of public concern," it would indeed be a violation of the First Amendment, she said.
"If the basis for plaintiff's separation is his protected speech, if the military persists in violating other service members' free speech rights, this case my proceed," the decision states. "If, at the conclusion of the plaintiff's administrative separation proceeding, plaintiff was not permitted to present his defense, plaintiff may renew his due process arguments and again request the court to enjoin plaintiff's discharge or reinstate plaintiff."