Facebook as a 'public' forum

A big news item this week in SoCal (if not nationwide) has been the military trial of the Camp Pendleton Marine who publicly criticized the president. A military hearing Friday ruled against Sgt. Gary Stein, 26, of Temecula, self-proclaimed leader of the “Armed Forces Tea Party.”

I wanted to root for Sgt. Stein, given my belief in free speech and my particular revulsion at deliberate efforts in 2000 to invalidate the votes of overseas military. At the same time, a civilian-controlled military (as the US has always had) must have certain lines that are not crossed.

The 2008 regulations for military conduct seem relatively fair. For example,

4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense...
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to … applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle

The restrictions for active duty military mainly ban “partisan” activity. Clearly, arguing for or against a president nominated by a political party would count. (Does that mean it would have been ok to criticize a President Perot? It would have been so easy…)

I don’t know all the facts of the case, including what he did and what warnings he received before the prosecution began. For example, many of the Tea Party organizations were organized as non-profits, advocated for things like reduced taxation and spending, but never endorsed (or attacked) specific candidates. I don’t know if Stein crossed that line, but the penalty — loss of his job, an other-than-honorable discharge, loss of post-separation benefits — seem harsh by civilian standards. (While his attorneys might argue for a “general” discharge, apparently this would not save his GI Bill benefits).

Still, one open question is whether certain forms of online participation count as public advocacy. (Again, I don’t know what Stein did — so this might not apply in his case). The Marine Corps Times — picked up by USA Today — reported that an attorney for the commandant of the Marine Corps is asking the DoD to clarify policies for “social media” in an updated version of the regulations.

Let’s get real here: we’re not talking about “social media” — we’re talking Facebook. An open Twitter stream is the same as posting to a web page or shouting on a rooftop, and today “Google+” remains a negligible portion of the world’s social media traffic (beyond Google employees). So for today, this is really (like so many other things) a Facebook issue.

I have 82 Facebook friends. My rule for Facebook is that I wouldn’t friend someone who I haven’t (or wouldn’t) invite into my home, or vice versa. (I generally add co-authors because these tend to be the most durable friendships that academics make.) My webpage is locked down (like those for the rest of our household) so that you don’t see much on my page unless I’m your friend.

So if I post something on Facebook that is only seen by my Facebook friends, is that really public advocacy? Yes, 82 is more than 5-10 friends on a night out, but it still seems analogous to talking in a bar or a poker party among a limited number of close friends. (Or certainly the annual Christmas letter). And is it right (or realistic) to ask our Armed Forces to give up having opinions or sharing them privately with their friends?

I’m not saying that such a policy would help Sgt. Stein. Although he doesn’t identify himself as a military member, it doesn’t appear that Gary Stein has limited his Facebook thoughts to only close friends, or his political commentary to non-partisan advocacy.

Unfortunately, bad facts make bad law: if we had a less polarizing president, it might be possible to debate the best policy without having the opinions so intimately tied to one controversial serviceman and his political criticisms. However, we haven’t had such a president this century — and maybe not since the 1950s — so that window may not open any time in the foreseeable future.