Marine sergeant files to block dismissal for his anti-Obama Facebook posts

Sgt. Gary Stein, the Marine facing dismissal for posts he
made on Facebook criticizing President Obama and saying he would not follow
orders, has filed a federal lawsuit to stop his discharge, saying his First
Amendment rights had been violated.

Stein filed his lawsuit in U.S. District Court on Tuesday with the
help of the American Civil Liberties Union and U.S. Justice Foundation, which
seeks to delay his administrative hearing, scheduled for Thursday, and stop the Marines
from discharging him.

{mosads}Stein says the posts he made on his “Armed Forces Tea
Party” Facebook page — where he called Obama a “domestic enemy” and said he
would not follow some orders — were not made as a uniformed Marine.

He also alleged that the Defense Department directive that
restricts political activity for service members violated his First Amendment
rights because it is vague and overbearing.

“Though some of the language he used in discussing certain
hypothetical unlawful orders might have been viewed as intemperate, he
subsequently clarified … that he was only discussing the settled principle of
military law that service members should not follow unlawful orders,” the
lawsuit says.

Even if his actions did violate the Pentagon directive, the
lawsuit says, the directive “violates the First Amendment as applied to
Plaintiff, because it is vague and/or overbroad, unconstitutionally restricts
core political speech, and/or unlawfully discriminates, based on content or
viewpoint of speech.”

The Department of Justice responded to Stein’s complaint
Wednesday by arguing that Stein’s hearing should not be delayed and an injunction
stopping his discharge should not be granted.

“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 DOJ response says.

“Specifically, plaintiff stated that the President is the ‘domestic enemy,’ that he would not follow ‘all orders from
him,’ and that he will not salute President Obama,” the response said. “These
comments could fairly be characterized as undermining the command structure and
do not qualify as protected speech.”

Stein’s case goes back to 2010, when he was invited to appear
on Chris Mathews’s MSNBC show “Hardball.”

His lawsuit says that after being told not to appear on air,
he was asked to review the Pentagon directive on political activity. He did so,
he said, and added a disclaimer that his views did not represent the Marine
Corps.

Rep. Duncan Hunter (R-Calif.), a Marine reservist, has
called for the Marines to drop the case against Stein, and he sent
a letter Tuesday to Col. C.S. Dowling, a commander at Stein’s post and the
first defendant named in Stein’s suit.

“This upsets me,” Hunter said in a March
interview with The Hill. “He should not be discharged for talking to his
friends and using the new social media of the day.”

Stein’s administrative separation hearing is scheduled for 8:30
a.m. PDT Thursday.

04-03 Stein Complaint