The Issue of Gary Stein: Limitations of Free Speech on Serving Members of the United States Military
A friend of mine recently asked me for my opinion on the matter pertaining to Gary Stein, a serving member of the United States Marine Corp for 9 years. Her question specifically is stated as:
“What do you make of this? My initial response is that it seems wrong that a US citizen, who also happens to be a soldier, is denied his free speech. But I also realize if I were trash talking my boss and refusing to complete the work I was assigned, I would get fired.” (Thursday, March 22nd, 2012 – 9:57AM)
I will do my best to tackle the legal aspects as best as I can, and then I will provide analysis, and some final thoughts. I will also do my best to tackle the philosophical implications behind a Serving U.S. Citizen of the United States giving up their freedom in order to protect freedom.
Did Gary Stein break any rules? This is the main question, one for which the United States Marine Corp is trying to determine and a question for which Mr. Stein vehemently denies. Free speech has, historically, never been absolute. More relevantly though we can look to Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247 (1919), in which Justice Holmes explains:
“When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.
This is a very early example in the defense of limiting free speech. Justice Holmes preceded the previous statement by saying:
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”
The military has a constitutional right to bar political speech, activism, and even civilians on post. This can be seen in Greer v. Spock 242 U.S. 828 (1976) in which the court held:
“(b) As to the regulation governing the distribution of literature, a military commander may disapprove only those publications that he perceives clearly endanger the loyalty, discipline, or morale of troops on the base under his command, and, while this regulation might in the future be applied irrationally, invidiously, or arbitrarily, none of the respondents even submitted any material for review, and the noncandidate respondents had been excluded from the post because they had previously distributed literature there without attempting to obtain approval.”
There is much more to this case than simply the opinion provided by Justice Stewart. A plethora of information regarding limitations of free speech and the reasons thereof that are imposed upon members of the Armed Services can be found in the concurring and dissenting opinions. For example, Chief Justice Burger concurred by stating:
“Permitting political campaigning on military bases cuts against a 200-year tradition of keeping the military separate from political affairs, a tradition that, in my view, is a constitutional corollary to the express provision for civilian control of the military in Art. II, § 2, of the Constitution,” continued with, “It is only a little more than a century ago that some officers of the Armed Forces, then in combat, sought to exercise undue influence either for President Lincoln or for his opponent, General McClellan, in the election of 1864.”
Justice Powell perpetuates this train of thought with a rather lengthy concurring opinion for which some parts are stated as:
“A military organization is not constructed along democratic lines, and military activities cannot be governed by democratic procedures. Military institutions [p844] are necessarily far more authoritarian; military decisions cannot be made by vote of the interested participants. . . . [T]he existence of the two systems [military and civilian does not] mean that constitutional safeguards, including the First Amendment, have no application at all within the military sphere. It only means that the rules must be somewhat different. T. Emerson, he System of Freedom of Expression 57 (1970). In this context, our inquiry is not limited to claims that the exercise of First Amendment rights is disruptive of base activity. We also must consider their functional and symbolic incompatibility with the “specialized society separate from civilian society,” Parker v. Levy, 417 U.S. 733, 743 (1974), that has its home on the base. [n1]”
“In sum, the public interest in insuring the political neutrality of the military justifies the limited infringement on First Amendment rights imposed by Fort Dix authorities. [n3]”
Justice Powell further discusses the implications behind the military being perceived, albeit due to the processes of media, of the military having a partisan bias towards a particular candidate. He stresses the idea of a separation between the military and politics. Although Justice Brennan wholly disagrees with the opinion of the court, he points to the importance of military neutrality in stating that:
“It is the lesson of ancient and modern history that the major socially destabilizing influence in many European and South American countries has been a highly politicized military.”
But continues by stating…
“But it borders on casuistry to contend that, by evenhandedly permitting public expression to occur in unrestricted portions of a military installation, the military will be viewed as sanctioning the causes there espoused.”
Interestingly, Justice Brennan does not acknowledge the effect the media may have in this a topic for which Powell mentioned. This is a particularly important aspect of political activism some 36 years later. To continue, in Parker v. Levy, 417 U.S. 733 (1974), the court stated:
“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.”
Other cases in which this theme is consistent are: United States v. Priest [21 U. S. C. M. A., at 570, 45 C. M. R.], Brandenburg v. Ohio [395 U.S. 444 (1969)], United States v. Gray, [20 U. S. C. M. A. 63, 42 C. M. R. 255 (1970)], Broadrick v. Oklahoma [413 U.S. 601, 610 (1973)], Dennis v. United States [341 U.S. 494, 71 (1951)], Secretary of the Navy v. Avrech [418 U.S. 676 (1974)]. There are many other cases involving the regulation of free speech among civilians and military personal.
To build upon the legal foundations of this matter, we must look to the regulations set forth by the Uniform Code of Military Justice and the Department of Defense. First we have the Department of Defense Directive 1344.10, “Political Activities by Members of the Armed Forces on Active Duty,” which was amended February 19th, 2008 which parts are stated below:
“4.1.1. A member of the Armed Forces on active duty may:
220.127.116.11. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces…
18.104.22.168. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 22.214.171.124.
4.1.2. A member of the Armed Forces on active duty shall not:
126.96.36.199. Participate in partisan political fundraising activities (except as permitted in subparagraph 188.8.131.52.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 184.108.40.206.)
220.127.116.11. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
18.104.22.168. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
22.214.171.124. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.”
The sections listed above are the only important ones for now, and arguably the sections for which Mr. Stein seems to have violated in some form or fashion with the exception of 4.1, 126.96.36.199, 3, 4 which declare his rights. Moving on to the Uniform Code of Military Justice, a number of articles may be used in instances for which an active duty military member may be found guilty for the crimes for which Mr. Stein is being charged. Some, but certainly not all would be articles 80, 88, 89, 90, 91, 92 and 134.
- Did Mr. Stein present a clear and present danger in any way?
- Are any of the articles listed above applicable?
- Is Mr. Stein acting in an official capacity as a Marine?
- Is Mr. Stein trying to influence other active duty service members’ vote to a partisan group or member?
- Does the Armed Forces Tea Party represent a partisan group?
- Is the Tea Party a Partisan Group?
- Does the internet fit the description of “public?”
The oath of enlistment is stated as:
“I, (NAME), 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.”
When Mr. Stein recited this oath, he became shackled to the rules and regulations for which he now says he did not violate. He became a serving member of the United States Marine Corp, and for many reasons must uphold many ethical and professionally bound regulations in order to maintain national security interests, set examples for others to follow, and ultimately represent the entirety of the United States Armed Services not just to the people for which he protects, but even those for whom he may indulge in combat against.
Arguably, by being the founder, and mediator of the Armed Forces Tea Party Facebook page, he ultimately violates section 188.8.131.52. of the DoD Directive 1344.10. because he is the sponsor, and mediator of said group. While section 184.108.40.206 allows Mr. Stein to join a political organization that is partisan, section 220.127.116.11 clearly states that he may not speak before a partisan group, and arguably section 18.104.22.168 would apply to the internet forum as a discussion.
A few more things to consider: First, under the “About” section at the Armed Forces Tea Party Facebook page it is stated in the “Company Overview” section that:
“We are a simple fan page that is set up to allow active, inactive, or retired members of the United States Armed Forces to stand with the Tea Party movement.”
Furthermore, the mission statement states:
“To offer a forum that will allow the voices of the US Armed Forces to stand with the Tea Party movement, and be heard.”
This is important to consider because Mr. Stein is making a distinction between his role in the military, his rights as an American citizen, and the purpose of the Facebook page. To continue, under the description, it is stated that:
“We are Not advocating or promoting the removal of any person from his or her elected office.”
This is really an interesting statement as it contradicts a number of relevant statements that have been made on Mr. Stein’s personal Facebook page, the AFTP Facebook page, and the overall mission of the Tea Party on a broader spectrum. The Tea Party, which held a minor first protest on January 24th, 2009 in Binghamton, New York against an 18% tax on soft drinks; and a month later on February 27th in protest against the Troubled Assets Relief Program of 2008, and the American Recovery and Reinvestment Act of 2009, began as an outcry against large government, and high taxes. Since their formation, they seem to have gone from anti-tax issues (52% of Tea Partiers feel that they are being taxed fairly), to more of a stance on getting rid of Obama. It’s also important to include the “Birthers” who continually hammer the question and authenticity of Obama’s birth certificate.
The Tea Party Movement, and Birther Movement that stemmed from its big brother, have unquestionably created stigmas, and segregated the political atmosphere. Given that the United States is still engaged in conflicts overseas, Mr. Stein should by all accounts been aware of any possible consequences stemming from his decisions to post certain comments on both Facebook pages. While the Facebook page to the AFTP may state that there is no intention or advocacy to remove a person from an elected office, just being a member of the Tea Party would represent otherwise. 88% of Tea Party members disapprove of Obama, and interestingly some 24% of Tea Party members feel that violent action against the government is justified. Ultimately then, by creating a Facebook page, which does in essence create a political forum for which he has an official capacity to regulate called the Armed Forces Tea Party, compounded by the mission statement, Mr. Stein created a place where active duty and retired military personal can come and express their contempt towards their commander-in-chief. To quote a number of statements made on the AFTP page, on March 5th Mr. Stein posted:
“Today has been a long long and I am finally home. So here are some updates
I am currently under a Marine Corps investigation on my unit’s level. I am being investigated for making “disloyal comments” about Obama. Further more It is being investigated if am allowed to be the moderator of Armed Forces Tea Party. When asked today by officer if I would follow that order if give, I said that is not a lawful order so I would not and will not.
At this time the Marine Corps has not officially charged me but can in the coming day. If they so choose I will take the fight for my right to Freedom of Speech to them and will not give up. We must stand up for our rights at every cost just like our founding fathers did so. If we choose not to act our rights will be taken from us.
The comments that started this were “Me, as an active duty Marine, screw Obama and I will not follow (unlawful) orders give by him.” I do believe that I cold have made it more clear on what I meant and possibly used different words and my words can be taken out of context if the whole disscussion from that forum was not read (which it was not all given the Marine Corps). Their were also comment about how I believe Obama is a economic enemy, as his polices are crippling the economic… He is a enemy of the Constitution, as Obamacare and the Contraception mandate are unconstitutional. I do believe the policies he as set forth during his time in office has proven this. This comment I will stick to.
Military members are encouraged to voice their rights as Americans but to do it peacefully and not in a wreck less way. You have rights and make sure no one tell you other wise! You must stand for your rights! I believe that an informed voting electorate is the absolute best way to affect long-term, positive, deep-rooted change in the country. Obama’s election is banking on the fact that there are more people who’d rather sit around and do nothing — become wards of the state, become totally dependent on him — than there are people who would like to seek their dreams, be the best they can be, go out and pursue happiness, to stand up for their rights and defend the Constitution.
Please keep us in your prayers”
A number of things to make note of: First, in the first paragraph he acknowledged that he would not obey an order given to cease being the moderator of the Facebook page. If the investigation determines that he is violating section 22.214.171.124 of the DoD Directive 1344.10, followed by the legal justifications to have such a directive in place, than Mr. Stein will be found guilty of violation of 10 USC S 890 – Article 90 subparagraph 2 which states:
“Willfully disobeys a lawful command on his superior commissioned officer; shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.”
Furthermore, under 10 USC S 892 Article 92 which states:
“Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct.”
The law is quite clearly stated, and given the fact that Mr. Stein has been serving in the Marine Corp for some 9 years, one should hardly believe the shock for which he seems to express that he was reported, and that he is under investigation for a second time.
Second, while he says he is going to fight this, and for his right to freedom of speech, he should understand that there is a vast body of law since the 1800’s that will show that the Military has a right, especially during times of war, to severely limit speech of its soldiers, and even civilians. He should have already been aware of the various directives, and heeded the warnings that were given to him both already as a veteran, and from the first investigation.
Third, on can agree that ultimately the UCMJ and the Department of Defense advocates the freedoms of its soldiers for which they are called upon to protect, but in a safe, albeit restrictive way. Mr. Stein arguably was very wreck less. He knew the buttons that he was pushing, and if he was unaware after 9 years, one must wonder the level of competency that he has and the deficit thereof. Mr. Stein should have learned some lessons from the case involving Terry Lakin, the Army flight surgeon who ultimately was booted for refusing to deploy to Afghanistan on the basis that obama was not eligible to be president.
Fourth, by saying NoBama2012 at the end, on behalf of the Armed Forces Tea Party Patriots Facebook page, in that particular post, conflicts with the notion that the group does not advocate the removal of an elected official. Just given the language of the statement, legally it is very vague, and so by advocating an anti-Obama stance, by virtue of the language of the statement, he is ultimately advocating the removal of an elected official. Paradoxically even, his commander-in-chief. Although this may come across as semantics in the grand scheme of things, it is important to understand that language is everything in the legal realm. And legally, the military is very critical of its personnel criticizing its chain of command – as a matter of legal fact, it’s typically illegal.
Fifth, it’s important to address the differences in official capacities. By creating a page for active duty members, by an active duty member, only then to ultimately criticize the top member of his chain of command, the boundaries become blurred between official capacitor of a club (which is barred according to DoD Directive 1344.10), but also how much influence he has over other active members of the United States Armed Forces as a currently serving member of 9 years. This is probably one of more perilous aspects of being the creator and moderator of such a politically partisan and virulently anti-Obama organization. While his intention may not have been to alter opinions of people, his duty calls on him to lead by example, and by this virtue alone he has a lot of clout as a serving member. Interestingly, he stated in his post on March 5th that he wants people to become informed, and blames Obama for riding on a wave of voters who are completely dependent on him, he fails to realize that there’s little that his Commander-in-Chief can do to resolve issues. Overall, as of August 5th of 2011, 48% of voters approved of Obama as a president, while Congress had an 82% disapproval rating. Part of being informed is understanding that even Romney, and Santorum will be able to do very little.
Approval ratings are also very partisan based, most Democrats approve of Obama, whereas most Republicans disapprove. The reverse was true after George Bush’s first term in office, most Democrats did not approve, whereas most Republicans did. What this means is that that for national security reasons alone, it’s not in your best interest to voice your anti-president views during a time of war, especially if you happen to be in a more radicalized subgroup of that overall party, i.e, the Tea Party.
To quote another statement which was posted on March 6th:
“Last thing before hit the hay… I will follow all LAWFUL orders handed down from the President of the Untied States… I hope that is clear… If its not then you need reading glasses!”
This unfortunately brings into question what exactly he views as constitutional vs. unconstitutional, and at what point was he deemed the expert on such things? While it is clear that many people understand the basics, there are a lot of things that people don’t know. Barring the common sense constitutional aspects, this statement is extremely sensitive, and is being treated as such under Article 90 of the UCMJ. This relates back to Terry Lakin. However, it’s also important to understand that this statement was made after he had posted a similar statement for which apparently he was originally reported for that came across as stating the possibility of violating Article 91. That statement was apparently posted as saying:
“As an Active Duty Marine I say “Screw Obama” and I will not follow all orders from him…. Will do my job better then the next guy… But has for saluting Obama as commander-in-chief…I will not!”
The implications behind this statement speak for themselves assuming that this is the legitimate and original statement that may be the stemming cause for which Mr. Stein is facing reprimand. This information was gathered from an image posted on the Armed Forces Oath Keepers Facebook page which was formed in response to this issue.
Another statement posted on March 12th:
“In response to Secretary of Defense Panetta’s declaration before the Senate Armed Services Committee that he and President Obama look not to the Congress for authorization to bomb Syria but to NATO and the United Nations, as it was with the situation in Libyra, Armed Forces Tea Party is full support of House Concurrent Resolution 107:
Expressing the sense of Congress that the use of offensive military force by a President without prior and clear authorization of an Act of Congress constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.”
This is an intriguing statement considering the events and drama that unfolded after the initial invasion of Iraq and the continued funding absent that of a legitimate or even drafted declaration of war. As a matter of fact, that last war that was formally fought, based on the Constitution for which Mr. Stein expressly wishes to defend, was World War II. Based on this alone, and if he accepts Ron Paul’s strict constitutional view, than that would mean that all engagements after World War II were unconstitutional. Ron Paul’s strict view of the constitution is flawed however, as Article 1, Section 8, clause 11 is particularly vague on the matters pertinent to declaring war:
“Congress shall have the power…To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures of Land and Water;”
For further matters one should read the case revolving around Doe v. Bush. Regardless, there’s also the War Powers Resolution, as well as the Joint Resolution of 2001 for which Mr. Stein and everyone else who protested the war would have to contend with. In any case, based solely on the language for which Mr. Stein used in his statement, the Afghanistan War and Iraq War are both “illegal.” The main question should be then, why is it that there was none of this expressed patriotism 9 years ago, which would have placed Mr. Stein into basic in 2003, and the overwhelming heat of both conflicts? Obama on many accounts is exercising the same powers for which Bush used to begin Iraq and Afghanistan. Interestingly, history will show that there have been many occasions, wars, and conflicts for which there was no expressed congressional authorization. Furthermore, as times change, one must also ask whether or not simply funding a war is express authorization absent a codified statement of intent to continue and engage in war against another country. These are all very relevant and legal matters to contend with.
What’s most malicious about that statement, is his support of House Concurrent Resolution 107 which was sponsored by Representative Walter B. Jones Jr., Republican of North Carolina on March 7th, 2012 which states:
“Expressing the sense of Congress that the use of offensive military force by a President without prior and clear authorization of an Act of Congress constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.
Whereas the cornerstone of the Republic is honoring Congress’s exclusive power to declare war under article I, section 8, clause 11 of the Constitution: Now, therefore, be it
Resolved by the House of Representatives (the Senate concurring), That it is the sense of Congress that, except in response to an actual or imminent attack against the territory of the United States, the use of offensive military force by a President without prior and clear authorization of an Act of Congress violates Congress’s exclusive power to declare war under article I, section 8, clause 11 of the Constitution and therefore constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.”
This is another example for which there is a contradiction between supporting something, and supposedly not supporting the removal of an elected official. Among other things, this bill is already being nicknamed the “Obama Impeachment Bill.” This also looks, and sounds contemptuous against the President, who happens to be Mr. Steins highest ranking military official. The point that I am trying to make here is that the military understands how damaging the media can be, especially during times of war. This ultimate tug-o-war between military efforts and civilian perspectives becomes more complicated when a Sgt. Gary Stein creates a Facebook page to bring in active duty (the most important aspect) supporters of the Tea Party, only then to publicly state support for a resolution that would ultimately criminalize the president, this president for engaging in certain conflicts outside of certain stipulations, even though history shows that virtually all presidents have done so since the founding of this Great Nation.
Members of the United States Armed Forces take an oath to defend the president, the constitution, and to follow regulations and the Uniform Code of Military Justice. Members also have freedom of speech, although not absolute, and heavily regulated. What members of the military do reflects heavily upon their specific branch, the Department of Defense, and ultimately the United States as a whole. Each member plays in some part a leadership role in the eyes of other members, and civilians. The argument posed in this paper is that:
1) Mr. Stein fails to realize the extent to which he is acting as official capacitor for the Marine Corp while simultaneously representing the Tea Party.
2) By engaging in political discussion over the internet he is ultimately engaging in “public” due to the nature of the forum.
3) By being the moderator of the Armed Forces Tea Party Patriots while also declaring to be an active duty member of the Marine Corp, he unduly gives off the image that the Marine Corp is political partisan in favor of the Tea Party.
4) Given the previous statement, it is also argued that he is in direct violation of the oath that he gave, as well as Articles 90, 91, 134, and DoD Directive 1311.10.
5) Given the nature of many statements for which Mr. Stein made, pictures, and facilitated discussions, much of the content is arguably contemptuous towards the President, and ultimately not within regulation of the Corp, the Department of Defense, and reflects poorly his ethical and professional duty as a member of the Armed Forces.
6) Case law shows that Mr. Stein is not the first, and will not be the last person reprimanded for statements such as these that are contemptuous towards the president or other officers and officials.
7) While there is a paradoxical relationship between protecting freedom while also having said freedom heavily regulated if not almost absent in most cases, it is important to recognize the importance of national security concerns and the political environment when dealing with these matters. It wasn’t that far in the past when only speaking of Communism would have been a crime, we’re beyond that for the most part. Given the political aspects and perceptions for which the Tea Party has, and have been given regardless of fact and evidence regarding the president, this is a touchy subject.
8) Mr. Stein acted recklessly, and had ample warning and notification that his actions were against regulations and not representative of a professional member of the Marine Corp not just from his commanding officers, but even a variety of peers that posted on both his personal Facebook page, but also the AFTPP Facebook page.
9) Places, times, and to what extent certain things are said are always more strict during times of conflict.
I want to end by sharing some history on my Dad. He was a Combat Engineer for the Marine Corp while he served in Vietnam, and later he served in the United States Army for 17 years. He understood that as an American citizen, he may not agree with every elected official, or even his President. He took his oath very seriously, it was his life, his job, and his duty to his country. He shared a poem with me once that he felt summarized his beliefs and values as a Marine. That poem is Alfred Tennyson’s “The Charge of the Light Brigade” and the part he quotes even to this day goes something like this:
“Half a league, half a league,
Half a league onward,
All in the valley of Death
Rode the six hundred.
“Forward the Light Brigade!
Charge for the guns!” he said.
Into the valley of Death
Rode the six hundred.
Forward, the Light Brigade!”
Was there a man dismay’d?
Not tho’ the soldier knew
Some one had blunder’d.
Theirs not to make reply,
Theirs not to reason why,
Theirs but to do and die.
Into the valley of Death
Rode the six hundred.”
The point that my Dad was making is that his duty isn’t to question the President, or his commanders, his duty isn’t to analyze every order given to him on every facet, his duty isn’t to speak out against the president or his commanders, his duty is to protect his country and to follow his orders. As a retired service member he still follows this motto, and I think that most enlisted soldiers would tend to agree with this sentiment. I believe that Mr. Stein could use a lesson in humility, he deserves to be reprimanded for in my view he broke rules and regulations that ALL service members are subject to.