ATTORNEY: Tea Party Marine Was Within His Rights

Marine Sgt. Gary Stein, 26, of Temecula — who faces for posting comments to Facebook critical of the president — was well within his constitutional right to post such comments because the actions were not a clear danger to the military, argues Jeffrey F. Addicott, director of the Center for Terrorism Law at St. Mary's University in San Antonio and former military lawyer.

“You really have to be doing something above and beyond what the military thinks is a danger,” he said, referencing a 1996 case U.S. vs. Brown:

In military, test for whether First Amendment protects speech is whether speech interferes with or prevents orderly accomplishment of mission or presents clear danger to loyalty, discipline, mission, or morale of troops, which is lower standard than clear and present danger test for speech in civilian community, and does not require intent to incite or imminent danger.

Addicott sent his opinion to Stein's separation board, spokesman Phil West said.

A USA Today opinion piece this week argues that, while Americans are free to say what they wish, their employers are also free to discipline workers who hurt the business.

The “Marine Corps Social Media Principles” guide tells Marines to use “common sense,” but doesn’t explicitly cover political speech.

“They don’t give firm guidance as to where the line should be drawn,” Addicott said, adding that he doesn’t believe Marines will be given clear guidance unless federal courts intervene.

If you were to write a new social media guide for the military, what would be allowed and what would be prohibited? (The Marine Corps Social Media Guide and the Department of Defense directive on political activity by military members accompanies this piece for reference.)