A military discharge case could lead to new legal precedents regarding servicemembers’ free speech rights and their use of social media.

Marine Sergeant Gary Stein landed himself in legal and administrative hot water recently, a result of his creating the Armed Forces Tea Party Facebook page. The site includes statements critical of President Obama and his policies, including a controversial statement by Stein that he would refuse to follow any orders from the Commander-in-Chief which the sergeant found to be illegal. Stein faces a possible discharge for his activities, which his commanders claim are in violation of several Department of Defense Directives and Uniform Code of Military Justice (UCMJ) articles. Stein asserts he is within his First Amendment rights in creating the Facebook page.

At issue here is whether military members have the same First Amendment rights as civilians. It’s an oft-accepted (or bemoaned) de facto reality that our troops — especially those on active duty — do not get to exercise their constitutional rights as fully as private citizens do, despite their having sworn to defend the constitution, and sacrifice themselves in that defense. In general, military members are legally afforded the same rights as their civilian counterparts, but provisions in the UCMJ allow military regulations to preempt those rights in a number of situations, particularly where the exercise of constitutional rights might inhibit the military in its mission, disturb discipline and order (including inciting desertion or mutiny), compromise national security or personnel safety, misrepresent the military’s official position, or use an appointed post to influence the democratic process. When you think about the broad range of missions and activities the military participates in, the nearly 1.5 million troops currently employed in active duty roles, and the differing opinions and judgments of unit commanders, these provisions have the potential to cover a lot of ground. Consequently, such provisions are not always universally or consistently enforced.

Sergeant Stein claims that the Marine Corps is enforcing such provisions in this case in order to make an example of him. “I am facing an Administrative Discharge from the Marine Corps for simply expressing my right to free speech and stating I would not follow unlawful orders,” he wrote in a statement published around 2:00 am EST today: “The allegations drummed up against me are no more than an agenda by the Marine Corps to use me as an example. I have never spoken on behalf of the Marine Corps or in uniform. I have stayed within guidelines DOD Directive 1344.10 and made sure to.”

“Now that is not what the papers handed to me exactly said but that is what it meant,” he added. “It means that military do not rate the same basic rights that all other Americans do.”

DoD Directive 1344.10, which Stein appeals to and claims to be in compliance with, is titled “Political Activities by Members of the Armed Forces.” It includes official DoD policy regarding both the political activities that active duty servicemembers may participate in, and those which are forbidden. According to § IV of the directive, such policies apply “[i]n keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement.”

The document ensures the rights of servicemembers to, among other things, vote, display bumper stickers, and join or attend partisan and nonpartisan political clubs and activities when out of uniform. It prohibits personnel on active duty from serving in high-visibility or official capacities of organized partisan political groups. Provisions in this directive that may apply to Stein’s case include:

4.1.2. A member of the Armed Forces on active duty shall not:
• 4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
• 4.1.2.5. Speak before a partisan political gathering, including any gathering that
  promotes a partisan political party, candidate, or cause
• 4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
• 4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature

Moreover, Article 88 of the UCMJ makes it illegal for commissioned officers to use “contemptuous words” against a number of high level government officials:

• 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 Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

Sergeant Stein is not a commissioned officer. But he could still be held culpable for his statements under the General Punitive Article 134. Under clauses 1 and 2 of that article, a member of the armed forces may be disciplined for any offense not otherwise covered in the UCMJ, but which is found “to the prejudice of good order and discipline in the armed forces,” or “of a nature to bring discredit upon the armed forces.” The prosecution in Stein’s will likely argue that some of the sergeant’s public comments, particularly of those criticizing the Commander-in-Chief, were in violation of Article 134.

Two other UCMJ Articles also limit the free speech rights of military personnel. Article 117 prohibits “provoking or reproachful words or gestures” toward another military member, and Article 82 makes it illegal to encourage fellow servicemembers to desert or mutiny.

Stein has defended himself by stating that he makes it clear his opinions are his own, and that he and members of the Facebook group do not act as official representatives of the U.S. armed forces. “I have never spoken on behalf of the Marine Corps or in uniform,” he stated. And the About section of the AFTP Facebook page begins with this disclaimer: “We do not represent, and are in no way affiliated with the military, or United States Armed Forces.”

The sergeant also claims that in one of his more controversial statements — wherein he announced that he would refuse to follow any unlawful order issued by the President — he was merely reiterating his sworn duty to protect the constitution. Upon joining the armed forces, all servicemembers swear an oath which affirms:

“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.”

While Stein claims he was merely reaffirming his sworn duty, some observers feel that his statement was implicitly rebellious against the Commander-in-Chief. Others cite that Stein’s original statement did not include the “unlawful” modifier. The Huffington Post reports that Stein originally declared he wouldn’t follow orders from the President, but later “softened his statement to say he wouldn’t follow ‘unlawful orders.'” The context of the comments also merits review.

In answer to allegations that he is in violation of DoD Directive 1134.10, Stein claims that he is not a leader of the AFTP, nor of the wider Tea Party movement. “I am no more the Leader of the Armed Forces Tea Party than any other of 18,000 members are,” he writes in this morning’s statement, “I just happen to be normal guy who started a facebook page and who hold the Tea Party values close my heart and believes the Tea Party can enact real change in this county. We are all leaders in the Tea Party!” He signed the statement: Semper Fi; Gary Stein; Founder, Armed Forces Tea Party.

Stein’s case sits on complicated and interesting legal ground. The Marine sergeant seems to have a strong defense in his arguments that he publicly stating his sworn duty, and that his posts and comments bear the disclaimer that he speaks as an individual and not a representative of the military. His freedom of expression is protected “to the maximum extent possible, consistent with good order and discipline and the national security,” under DoD Directive 1325.6. However, determination of the consistency of his remarks “with good order and disclipline” is left to the “calm and prudent judgment of the responsible commander.”

Meanwhile, Stein will have a harder time arguing that he is not a leader or a sponsor of a partisan group. The Armed Forces Tea Party page is decidedly partisan, featuring posts, photos, and even a bumper sticker fundraiser that are overtly allied with conservative candidates and ideals, and antagonistic toward President Obama and the Democratic Party. Moreover, Stein created the group, publicly identifies himself as the group’s “Founder,” and is responsible for posting a significant portion of the group’s content.

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What makes the situation particularly tricky is that there is little legal precedent in military free speech cases regarding social media, especially as it applies to Directive 1344. The most draft was most recently revised in 2008 — and while social media platforms have had widespread success long before that date, both military regulation and legal precedent tend to lag behind the success of the media. As such, Stein’s activity’s may have to be tried under related provisions regarding participation in public rallies, dissemination of printed materials, or appearance on TV, radio, or other programs. Even if these charges fail to stick, he could still be culpable if the court finds he posted on the sites from government equipment, or while on duty. Stein’s case could set a whole new precedent regarding the use of social media by personnel, and, depending on the outcome, could even lead to new provisions in Directives like 1344 when they are revised in the future.

[DTIC, NLG Military Law Task Force, About.com US Military, Huffington Post. H/T: AP]