Sgt. Gary Stein is in serious hot water. The now famous marine got into the proverbial hot water after he made comments that the President, his commander-in-chief, was an enemy of the state and said that he would refuse any unlawful orders from Obama. While this is not the first time that he has been in hot water for politically charged comments, these comments are probably going to get him kicked out of the Marine Corps.
In steps the ACLU which is historically anti-military on nearly every issue. David Loy, legal director for the ACLU Foundation of San Diego & Imperial Counties and legal council for Sgt. Stein has come out and issued a statement on Stein's behalf. While his argument that merely stating your beliefs in no way constitutes a violation of the ACLU is valid in a black and white sense, neither David Loy nor a lot of other people are taking into consideration the breakdown in the command structure that this causes. With a breakdown in the command structure the United States military loses the one thing that tends to separate it from any other fighting force in the world. They will lose the ability to fight for the flag they fly and start to question the people who give them their orders. Unfortunately, this cannot be allowed to stand.
Here is the issued statement by David Loy:
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.
So as you can see, there is some legal precedence as to why he should be allowed to keep wearing his uniform. He makes the case that a white supremacist's(U.S. v. Wilcox) was overturned because he did "not present the "clear danger" to loyalty, discipline, mission or morale necessary to justify censorship." He also makes the argument that "If the military were to discharge every servicemember who has ever done the same(spoke out against the President), the armed services would be decimated."
Here is an interview of Sgt. Stein from a few days ago where he is explaining why he did the things he did.