SAN DIEGO — For a second time, a federal judge Friday refused to order a halt to the Marine Corps’ process of discharging a sergeant who made comments critical of President Barack Obama on Facebook.

District Judge Marilyn Huff refused a request from civilian attorneys for Sgt. Gary Stein to issue a temporary restraining order to block the discharge process.

But she did schedule a hearing for Friday to hear the attorneys’ assertion that the Marine Corps is violating Stein’s First Amendment rights and that the Administrative Separation Board is an unfair process that denies due process.

A Marine Corps administrative board voted 3-0 Thursday at Camp Pendleton, Calif., that Stein violated the policy when he posted anti-Obama comments and images on Facebook, including allegedly putting the president’s face on a “Jackass” movie poster.

The board recommended that Stein be dismissed with an other-than-honorable discharge. The recommendation will be sent to the commanding general of Marine Corps Recruit Depot San Diego.

If Brig. Gen. Daniel Yoo, commander of Marine Corps Recruit Depot San Diego, agrees with the Administrative Separation Board’s recommendation, the 26-year-old Stein could be discharged before his enlistment ends in late July. An other-than-honorable discharge would make him ineligible for veterans’ benefits.

On Wednesday, Huff had turned down a request from Stein’s civilian lawyers to order the Department of Defense and Marine Corps not to hold the board hearing.

In civilian court, Stein is represented by attorneys from the U.S. Justice Foundation, the American Civil Liberties Union, and Oathkeepers, as well as J. Mark Brewer from a firm in Houston and lawyers from a firm in Vienna, Va.

Stein’s lawyers, in seeking a restraining order in San Diego federal court, said the Administrative Separation Board hearing at Camp Pendleton was unfair because the board refused to hear several defense witnesses, including a retired Marine Corps brigadier general.

Stein’s impending discharge is “unjust and illegal,” the lawyers said.

Joe Kasper, spokesman for Rep. Duncan Hunter, R-Calif., said Friday that Hunter’s office was notified of the plans in a letter from a Marine Corps major general.

Hunter had urged authorities to withdraw discharge proceedings against Sgt. Gary Stein because he said the Pentagon’s policy limiting service members’ free is ambiguous about the use of social media.

A matter of opinion

Stein’s lawyers and Hunter and argued that the Pentagon policy is vague and military officials do not understand it.

Stein has said his opinions are his own and he put a disclaimer on his Facebook page saying so. His attorneys argued that service members have a right to voice their opinions as long as they do not appear to be presenting their views as being endorsed by the military.

“If there is anything good to come out of this, it’s the fact that the Marines realize the guidelines need to be updated,” Kasper said Friday. “It’s just too bad it took all of this to get there.”

The Marine Corps has said it decided to take administrative action after Stein declared on Facebook that he would not follow orders from Obama. Stein later clarified that statement, saying he would not follow unlawful orders.

The military has had a policy since the Civil War limiting the free speech of service members, including criticism of the commander in chief.

Pentagon directives say military personnel in uniform cannot sponsor a political club; participate in any TV or radio program or group discussion that advocates for or against a political party, candidate or cause; or speak at any event promoting a political movement.

Policy update is urged

Hunter told Marine Corps officials in his letter supporting Stein that the policy “is both vague and contradicting in the context of new ‘social media.’ In fact, nothing in the directive actually mentions social media and what activity is or is not approved for active duty service members.”

He said the policy needs to be updated to reflect “the changing dynamics of social communication” that includes a forum for the interaction between friends, families and acquaintances.

During Stein’s hearing, the prosecutor, Capt. John Torresala, said Stein ignored warnings from his superiors about his postings.

The government submitted screen grabs of Stein’s postings on one Facebook page he created called Armed Forces Tea Party, which the prosecutor said included the image of Obama on the “Jackass” movie poster. Stein also superimposed Obama’s image on a poster for “The Incredibles” movie that he changed to “The Horribles,” the prosecutor said.

Torresala also said anti-Obama comments by Stein that were posted on a Facebook page used by Marine meteorologists were prejudicial to good order and discipline, and could have influenced junior Marines.

Stein’s lawyers argued that the nine-year Marine, whose service was to end in four months, was exercising his First Amendment rights.

“We’re truly surprised and disappointed but it was an honor to fight for a hero like Sgt. Stein and every other Marine’s right to speak freely,” Stein’s defense attorney, Marine Capt. James Baehr, said after the hearing that ended close to midnight Thursday.

Stein told board members he loved the Marine Corps and wanted to re-enlist, Baehr said.

Stein said his statement about Obama was part of an online debate about NATO allowing U.S. troops to be tried for the Quran burnings in Afghanistan.

In that context, he said, he was stating that he would not follow orders from the president if it involved detaining U.S. citizens, disarming them or doing anything else that he believes would violate their constitutional rights.

Stein said he was removed from his job at the Marine Corps Recruiting Depot in San Diego last month and given a desk job with no access to computers.