U.S. Marine Faces Uphill Battle in First Amendment Challenge
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Posted By: How May I Help You NC on May 08, 2012 Posted May 7th, 2012 by Arthur Bright 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. More: http://www.citmedialaw.org/blog/2012/us-ma... If you enjoyed this article, Join HBCU CONNECT today for similar content and opportunities via email! |
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