Gene Policinski: In the military, speech can be punishable conduct

  When it comes to freedom of speech and members of the U.S. armed forces, there’s always been an obvious irony: The very people who risk their lives in defense of the First Amendment live under regulations banning their full use of it.

  The global reach of the web, combined with the explosion of social-media tools such as Facebook and Twitter, challenges how military rules rooted in the Civil War apply in the Internet age.

  Such is the background for the continuing saga of U.S. Marine Sgt. Gary Stein, an active-duty Iraqi War veteran whose online diatribe some weeks ago about President Barack Obama may well lead to an other-than-honorable discharge and loss of veterans’ benefits.

  U.S. District Judge Marilyn Huff ruled a few days ago that the military has the right to respond with disciplinary action to Stein’s words, posted March 1 on a Facebook page that could be used by other Marine Corps personnel.

  The nine-year serviceman said in his Facebook post, “Screw Obama and I will not follow all orders from him.” Stein also wrote, in an apparent play on his oath to protect the U.S. Constitution from “enemies foreign and domestic,” that “Obama is the economic enemy … He is the religious enemy … he is the ‘Fundamentally change’ America enemy … he IS the Domestic Enemy.” Stein also used the president’s picture in a parody of a “Jackass” movie poster.

  Stein said later that he meant that he would not obey any “unlawful” orders from Obama to violate certain constitutional rights of U.S. citizens. The Uniform Code of Military Justice, the legal rules for the U.S. armed forces, generally requires obedience to all lawful commands.

  So far, a military panel and Judge Huff have ruled that the military can discipline Stein — which likely would mean an end to his Marine career. Stein contends his comments clearly were personal, and that he should not be punished for simply expressing a private opinion.

  Longstanding military polices bar criticism of the commander in chief, and forbid uniformed military members from taking part in a variety of public political activities. Some say Stein’s claim to First Amendment protection challenges the military’s ability to operate a system based on obedience to superior officers and on order and discipline.

  E-mail, Skype and myriad Internet channels make it possible even for front-line troops to stay in touch with those at home — raising issues of accidental release of troop locations or other sensitive information. And the explosion of social media has made it equally easy for troops to offer private opinions to a huge audience, in addition to what in earlier years would have been just family or friends.

  For 20-year veterans — or for those whose only expertise rests in a screening of “Saving Private Ryan” — it seems obvious that there is a need for a chain of command and the necessity of obeying orders from superiors.

  But the UCMJ manages to mirror various parts of the Bill of Rights, such as the right to due process and the right to avoid self-incrimination, in adapting civilian legal principles to military service.

  The Marine prosecutor in the Stein case told a military board that “our own people are questioning why this Marine is not being held accountable.” Accountable for what? For engaging in our most-protected form of speech — political speech? No, it’s that from a First Amendment viewpoint, Stein’s organizing an “Armed Forces Tea Party” would seem to be conduct that more clearly runs afoul of regulations than mere personal commentary with a partisan tinge.

  Restrictions on the time, place and manner of our speech — but not the ideas behind them — are mainstays of the law regarding freedom of expression by those of us in regular life. The context of speech matters too: Court decisions have held that government has a greater ability to restrict speech as an employer, of police or teachers, for example, than it has over other citizens’ expression.

  Such clear contrasts between conduct and speech would seem a good standard for citizens of all stripes to follow.

  About the author: Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, radio, television and online.

  This article was published by the First Amendment Center.