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Judge denies Marine's plea to save his job

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  • Board seeks Marine's dismissal in Facebook case

    Board seeks Marine's dismissal in Facebook case

    Friday, April 6 2012 9:56 AM EDT2012-04-06 13:56:31 GMT
    A military board has recommended dismissal for a Marine sergeant who criticized President Barack Obama on his Facebook page, including allegedly putting the president's face on a "Jackass" movie poster. 
    A military board has recommended dismissal for a Marine sergeant who criticized President Barack Obama on his Facebook page, including allegedly putting the president's face on a "Jackass" movie poster. 

SAN DIEGO (AP) — A federal judge denied a request Friday to block military discharge proceedings against a Camp Pendleton Marine who called President Barack Obama an enemy on Facebook.

U.S. District Judge Marilyn Huff ruled the military has the right to respond to Sgt. Gary Stein's online comments in a case that has called into question the Pentagon's policies regarding social media and the limits regarding the speech of active duty military personnel.

A military panel has recommended to a general that Stein be given an other-than-honorable discharge that also would strip him of all benefits.

A general must still decide the outcome, but Stein's lawyers argued Friday in federal court in San Diego that Huff had the right to intervene because the ongoing proceedings go too far and are chilling the speech of Stein and other service members.

Attorney J. Mark Brewer told Huff the entire process violates the First Amendment, which federal courts have the right to uphold.

Huff disagreed, calling Stein's postings "truly troubling." Service members have had their speech limited since the Civil War, especially if their comments are believed to disrupt good order and discipline.

The judge pointed out Stein's March 1 comments on a Facebook page used by Marine Corps meteorologists in which the sergeant stated, "Screw Obama and I will not follow all orders from him."

Stein went on to state that he supports and defends the Constitution of the United States against all enemies, foreign and domestic.

"Obama is the economic enemy ... He is the religious enemy ... he is the 'Fundamentally change' America enemy ... he IS the Domestic Enemy," Stein wrote, according to court documents filed by prosecutors based on a screen grab of the page.

Stein later clarified in a posting that he would not follow any unlawful orders from the president. Huff commended Stein for doing that, but she said "nevertheless, he made a very strong statement."

In making her ruling, Huff told Stein that service members have several options to appeal any ruling within the military, including asking for a review by a board of civilians.

Stein acknowledged after the hearing that the options are available only after he has been discharged — which he wants to stop from happening.

The nine-year veteran who served in Iraq said he should not have his career wiped out for "15 words on Facebook."

"I've never disobeyed any order," said Stein, whose service ends July 28. He has said he wants to re-enlist.

"It's like a boxing match," he said of Friday's ruling. "I'm down two rounds now."

Stein plans to continue to fight outside the military and go to the 9th U.S. Circuit Court of Appeals.


THIS IS A STORY UPDATE. The previous story is below.

 

SAN DIEGO (CNS) - A Camp Pendleton Marine facing expulsion from the military for posting comments critical of President Barack Obama on Facebook lost his bid Friday for a restraining order to stop the discharge proceedings.

Last week, a three-member military panel unanimously recommended that Sgt. Gary Stein, 26, be kicked out of the Marine Corps with an "other-than-honorable" discharge.

Stein went to federal court in hopes of obtaining a temporary restraining order to prevent his discharge, but U.S. District Judge Marilyn Huff denied the request.

The military panel's recommendation will be forwarded to Brig. Gen. Daniel Yoo, the commanding general of the San Diego Marine Corps Recruiting Depot and Western Recruiting Region, who will make the final decision on whether to discharge Stein and under what conditions.

Stein was put on notice of a possible violation of the Uniform Code of Justice last month after he wrote on Facebook that he would not follow certain orders from the president. He later clarified the comments, saying he would not follow any unlawful orders from the commander-in-chief. He further said he believed his online activity was protected under the First Amendment.

Prior to the hearing at Camp Pendleton, Stein sought an injunction from Huff, arguing that he could not get a fair trial from military panelists. His request was denied.

Stein, a nine-year veteran from Temecula, attracted national media attention after he started the Armed Forces Tea Party Facebook page in 2010.

In a lawsuit filed in federal court in San Diego, Stein alleged that during the 17-month period from November 2010 through March 1, neither his commanding officer nor any other officer tried to restrict his Facebook activities. Nor, he says, was he told his Facebook activities prejudiced good order and discipline. The lawsuit claimed Stein's free speech rights were violated.

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