(NEW YORK) — A Camp Pendleton Marine who criticized President Obama on Facebook is facing an “other than honorable discharge,” a move his lawyer said is an infringement on the tea party supporter’s right to free speech.
A federal judge on Friday rejected Sgt. Gary Stein’s injunction to halt a military tribunal’s recommendation that he receive the discharge following anti-Obama comments he made on a private Facebook page in March, according to court documents.
Stein, 26, has maintained a webpage for the last two years about the armed forces tea party group he founded, including a disclaimer that the views were his own and didn’t reflect those of his employer.
But according to his attorney, Stein never ran into any trouble until last month, when he wrote: “Screw Obama. I will not follow all orders from him.”
That was when an administrative separation board made up of three Marines recommended that Stein receive an “other than honorable discharge” from the Marine Corps, meaning he would not receive any benefits following his nine years of military service. His contract with the Marines was scheduled to expire on July 28.
Stein tried to stop the tribunal’s processes by filing a preliminary injunction in the U.S. District Court in the Southern California District, but on Friday federal judge Marilyn Huff denied the request.
She told one of Stein’s attorneys, “You understand it’s a pretty sensitive comment that he made,” adding, “He can’t do that,” according to ABC affiliate KGTV in San Diego.
“We were very disappointed because we feel very strongly that the Department of Defense regulation that was used to oust Sgt. Stein is not constitutional, because the law is really clear that a person does not give up their First Amendment right of free speech when they go into the military,” J. Mark Brewer, one of Stein’s attorneys, told ABCNews.com.
According to the injunction, “The statements were construed by [Stein’s] supervisors as disrespectful and insulting to the President, in violation of Article 134 of the Uniform Code of Military Justice,” and that “[Stein’s] supervisors “found the comments showed a lack of personal and professional discipline expected of an active duty Marine and were prejudicial to the good order and discipline of his unit as a whole.”
Assistant U.S. Attorney Tom Stahl of the Southern District of California, one of the attorneys representing the Department of Defense, wrote in an email that he would not comment on a case that’s currently in litigation.
In March, after posting the “screw Obama” comment, Stein was alerted that he’d made a possible violation of the Uniform Code of Justice, but he then amended his comments, saying he meant he wouldn’t follow unlawful orders from the president, KGTV reported.
On his Facebook page, Stein wrote: “I have said over and over that the words that I used were tasteless and I could have articulated my point more clearly. I am man enough to admit my mistakes which I did from the beginning.
“I have never been given an order to stop posting. … I firmly believe that Military members do enjoy the same rights guaranteed by the Constitution to every American. Furthermore I firmly believe my comments, no matter the tastefulness, are protected by the Constitution,” he wrote. “Service members do not lay aside their God given, Constitutionally protected, civil rights when they enlist.”
Ultimately, Brigadier Gen. Daniel Yoo of the Marine Corps Recruit Depot’s Western Recruiting Region will make the final decision about whether Stein will be discharged.
Brewer said the judge told them they could file in the 9th Circuit Court of Appeals, but that Stein and his attorneys were weighing their options.
However, on Friday following the injunction hearing, Stein wrote on his Facebook page: “The court hands it off to the 9th circuit,” perhaps indicating that he would file an appeal.
Copyright 2012 ABC News Radio
Ray Sanchez, CNN Newswire
Chuck Johnston, CNN Newswire