By Jeremy Herb - 04/04/12 09:39 PM EDT
Sgt. Gary Stein, the Marine facing dismissal for posts he made on Facebook criticizing President Obama and saying he would not follow orders, has filed a federal lawsuit to stop his discharge, saying his First Amendment rights had been violated.
Stein filed his lawsuit in U.S. District Court on Tuesday with the help of the American Civil Liberties Union and U.S. Justice Foundation, which seeks to delay his administrative hearing, scheduled for Thursday, and stop the Marines from discharging him.
He also alleged that the Defense Department directive that restricts political activity for service members violated his First Amendment rights because it is vague and overbearing.
“Though some of the language he used in discussing certain hypothetical unlawful orders might have been viewed as intemperate, he subsequently clarified … that he was only discussing the settled principle of military law that service members should not follow unlawful orders,” the lawsuit says.
Even if his actions did violate the Pentagon directive, the lawsuit says, the directive “violates the First Amendment as applied to Plaintiff, because it is vague and/or overbroad, unconstitutionally restricts core political speech, and/or unlawfully discriminates, based on content or viewpoint of speech.”
The Department of Justice responded to Stein’s complaint Wednesday by arguing that Stein’s hearing should not be delayed and an injunction stopping his discharge should not be granted.
“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections,” the DOJ response says.
“Specifically, plaintiff stated that the President is the 'domestic enemy,' that he would not follow 'all orders from him,' and that he will not salute President Obama,” the response said. “These comments could fairly be characterized as undermining the command structure and do not qualify as protected speech.”
Stein’s case goes back to 2010, when he was invited to appear on Chris Mathews’s MSNBC show “Hardball.”
His lawsuit says that after being told not to appear on air, he was asked to review the Pentagon directive on political activity. He did so, he said, and added a disclaimer that his views did not represent the Marine Corps.
Rep. Duncan Hunter (R-Calif.), a Marine reservist, has called for the Marines to drop the case against Stein, and he sent a letter Tuesday to Col. C.S. Dowling, a commander at Stein’s post and the first defendant named in Stein’s suit.
“This upsets me,” Hunter said in a March interview with The Hill. “He should not be discharged for talking to his friends and using the new social media of the day.”
Stein’s administrative separation hearing is scheduled for 8:30 a.m. PDT Thursday.