U.S. Marine Faces Uphill Battle in First Amendment Challenge

What happens when the First Amendment collides with military decorum and respect for chain of command?  

It looks like we'll get to find out as the matter of Sgt. Gary Stein, the Marine who on a Tea Party Facebook page slammed President Obama and threatened to disobey his orders, rolls ahead. 

Stein got drummed out of the Corps with an other-than-honorable discharge late last month, and his lawyer promised to pursue all his options in administrative proceedings and federal court.  But does Stein really have a case?

Well, he's already in trouble when it comes to one of the preeminent government-employer/free-speech cases, Pickering v. Board of Education.  In Pickering, a teacher was fired by his public school employer after he wrote a letter to the local newspaper complaining about the school board regarding a particular matter of public importance. The Supreme Court ruled the firing a violation of the teacher's First Amendment rights, saying that the teacher's speech rights outweighed the school's interests as an employer, given that the teacher's complaint had little to do with the fact of the teacher's employment. 

Stein's hurdle with Pickering is that his employment was not incidental to the subject at issue.   Stein wrote "Screw Obama and I will not follow all orders from him," thereby threatening his ability to function within the Marines' heirarchy.  His employment becomes the crux of the debate, rather than being "tangentially and insubstantially involved in the subject matter of the public communication."  That cleanly distinguishes Stein's issue from Pickering.  (I should add that Stein later said what he meant was he would not follow illegal orders from Obama, though I don't believe that will significantly change the analysis.) 

And Pickering was about a teacher; the First Amendment rights of a member of the military while in the service are a very different matter. The conflict between the First Amendment and military regulations governing conduct and the chain of command have popped up in the Supreme Court a couple times, most relevantly to Stein's case in Parker v. Levy, a 1974 decision. 

In Parker, an Army doctor refused to train Special Forces personnel, slammed the Special Forces, and urged black soldiers to refuse to go to Vietnam if ordered.  The doctor was courtmartialed for wilfully disobeying a superior officer, for "conduct unbecoming an officer or gentleman," and for "disorders and neglects to the prejudice of good order and discipline in the armed forces." The doctor, Parker, challenged the courtmartial in federal court, arguing the regulations were overbroad in violation of the First Amendment.

The Supreme Court was not receptive to Parker's argument.  Unlike civilian life, the court wrote, "the different character of the military community and of the military mission requires a different application" of the First Amendment.  "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." As such, conduct like that of the officer "was unprotected under the most expansive notions of the First Amendment," and the regulations at issue "may constitutionally prohibit that conduct" without risk of overbreadth.  

Unfortunately for Stein, Parker puts him in a pretty deep hole. 

According to Stein's complaint, he ran afoul of Article 134 of the Uniform Code of Military Justice, one of the same regulations that Parker violated.  And one could argue that he violated that regulation in a similar fashion too.  Though not quite as on the nose as Parker's discouragement of soldiers from obeying orders, "Screw Obama and I will not follow all orders from him" is at least in the same ballpark. Thus it will be hard to make those words out to be more protected than Parker's speech.

More importantly, the balance between Stein's speech rights and the military's interest in discipline weigh far more heavily in favor of the military.  The military has a strong, almost untoppable interest in the chain of command being followed and troops following the orders of their superior officers.  As such, Stein's refusal to "follow all orders from" Obama, the military's ultimate authority, threatens the basic functionality of the Marines and other armed forces.  It's hard to think of a value more paramount to the military's purpose.  I'd say that's a pretty big thumb on the scale in favor of the military's position.

It's also worth noting that both Pickering and Parker came down amid and just after the draft era.  Draftees, who made up a substantial portion of the military at the time, were put under the restrictions of being a soldier by force of law.  They didn't choose to waive their First Amendment rights, among many others, by entering service.  Parker himself was a "draft-induced volunteer," meaning that he was forced to serve, able only to control when he entered service by "volunteering."

Today, however, our military is all-volunteer – soldiers have a choice whether to sign up or not.  As such, they are voluntarily submitting to all limitations that come with being a soldier, including limitations on free speech.  Stein cannot legitimately argue that the military's regulations are forcing him into silence about his opinion of the president.  He chose to join the Marines, and thus he chose all that goes with it. 

I think that this puts Stein in an even bigger hole.  If the Supreme Court when evaluating soldiers' free speech was unwilling to consider the military's coercive powers during the draft era, why would it change course now when the military's coercion is at its nadir?  Stein voluntarily took on all the obligations of being a Marine, and that includes not challenging the authority of your commanding officer, even when you did get to vote for (or in this case, against) him. (And it's not like the regs were a secret; as the Parker court notes, "the military makes an effort to advise its personnel of the contents of the Uniform Code.")

On the whole, I think Stein's looking at a legal loss on his First Amendment argument.  And even with my general bias in favor of all things free speech, I'm okay with Stein's speech rights being outweighed here.  Even a bleeding-heart pacifist like me can see that if the military is to function properly, it needs to have an utterly reliable chain of command.  Stein's personal views don't get to trump that, particularly where he's under no obligation to serve in the military. 

Stein doesn't have to like Obama, but if he wants to be a Marine, he has to obey his orders.  Otherwise, he can quit.  It's too bad he didn't figure that out, and so the Marines had to make the choice for him.

Arthur is the research attorney and editor for the Digital Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor.  He tweets occasionally at @NominallyBright.

(Image courtesy of Flickr user MamboDan licensed under a CC BY-ND 2.0 license.)


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