Update 9:15 a.m.:
Despite a lawsuit filed on his behalf Tuesday night in Federal Court, an administrative separation hearing for Sgt. Gary Stein will proceed as scheduled Thursday morning, staff with the organization Oathkeepers said.
Stein, 26, is accused of breaching good order and discipline by making statements critical of President Barack Obama on his Facebook page, Armed Forces Tea Party, and violating a military directive against political involvement by managing the page.
Stein was served a notice of the proceedings March 21, and the lawsuit, filed on his behalf by Gary Kreep of the U.S. Justice Foundation, alleged that the hearing was a breach of due process, leaving Stein without time to build a defense as his superiors tried to “railroad” him out of the Corps.
Others who have come to the eight-year Marine’s defense, saying his First Amendment rights have been violated include the conservative veterans’ group Oathkeepers and the San Diego chapter of the American Civil Liberties Union, whose legal director, David Loy, penned a letter to Stein’s superiors on March 30.
“The alleged grounds for separation appear to be based solely on Sergeant Stein’s speech on matters of public concern,” Loy wrote. “…In light of the serious constitutional issues at stake, the ACLU strongly believes that 15 days is far less than sufficient time for Sergeant Stein and his counsel to prepare for the hearing and ensure the board is fully informed of relevant matters.”
Stein learned Wednesday afternoon that his hearing would proceed Thursday morning as scheduled. He is due to appear at 8 a.m. Pacific Time before a three-member panel including a Marine lieutenant colonel, major, and sergeant major, and faces reduction in rank and pay and separation from the Corps with an other-than-honorable discharge.
While the Uniform Code of Military Justice bars troops from speaking at political rallies or running for office, it does permit limited political activity as long as troops are acting as individuals, and not as representatives of the Defense Department.
Stein was exercising his First Amendment rights and was not in violation of military policy when he criticized President Barack Obama on his Facebook page, according to athe lawsuit filed in California’s southern district Tuesday night.
The case has received nationwide attention after conservatives and others rushed to his defense, staging a rally outside the Marine Corps base at Camp Pendleton and starting Facebook pages and at least one website to raise support for his cause.
“Though the First Amendment may operate differently in the military and civilian context, the military must still respect a service member’s freedom of speech,” the lawsuit, obtained by Human Events, says.
The filing names Stein’s battalion commander, Col. C.S. Dowling; Navy Secretary Ray Mabus; the Department of Defense; the United States of America; and the general officer convening the board, Brig. Gen. Daniel Yoo. It was filed on behalf of Stein by Gary Kreep of the United States Justice Foundation, reads. A ruling is expected Wednesday.
“Sergeant Gary Stein has served with honor in the Marine Corps, and he had spoken on matters of public concern in his capacity as a private citizen. Taken in their full context, his statements are protected by the First Amendment to the United States Constitution, as interpreted and applied by both civilian and military courts,” court documents say.
The suit alleges that the Marine Corps is trying to “railroad” Stein out of the Corps, depriving him of due process and his rights as an American citizen.
The comments in question appeared on a Facebook page, the Armed Services Tea Party, which was launched by Stein to discuss and protest big government, the Obama administration, and other policy issues.
From 2010 to 2012, the suit claims Stein maintained the page, discussing personal opinions as an individual, but not as a representative of the armed forces. In April 2010, Stein received permission from his unit leadership to appear on Hardball with Chris Matthews, but en route to the studio, he received a call from Headquarters Marine Corps ordering him back to his base. Following that incident, the complaint alleges, he was approached by a superior about his Facebook page with concerns about how the page was presented and that it could be construed as coming from military sources.
Stein removed his page, but re-launched it after reviewing the matter and the content, adding a disclaimer, still on the site, that the material was personal opinion and not affiliated with the armed forces. He claims he was not then advised to take down the page and has not been told to do so since then.
A spokesman for MCRD San Diego, Maj. Michael Armistead, confirmed that Stein had been warned in 2010 about the page.
According to the Uniform Code of Military Justice, a service member may engage in limited partisan or political activity, but not do so in a way that implies that the Defense Department has taken an official position on or has other involvement in the issue. In addition, commissioned officers are explicitly barred from making remarks contemptuous of the president, under the UCMJ.
The complaint asks that military departments will issue more specific directives regarding restrictions to Internet speech and activity and requests an injunction on legal proceedings, withdrawing the accusation or giving Stein at least 30 days’ notice to prepare a defense.
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