Midshipman's status unclear as judge considers ruling in lawsuit over tweets
By HEATHER MONGILIO | The Capital, Annapolis, Md. | Published: February 13, 2021
(Tribune News Service) — A midshipman facing expulsion over tweets characterized as inappropriate may not be able to graduate in May from the Naval Academy.
Midshipman First Class Chase Standage is currently facing separation from Naval Academy because of a series of approximately 40 tweets from June that the academy leadership criticized as inappropriate and, in some cases, racist.
Standage, through attorney and Naval Academy alumnus Jeffrey McFadden, filed a request for a preliminary injunction, which would keep the midshipman at the academy until the federal judge determined if the Naval Academy superintendent and former secretary of the Navy violated Standage's First or Fifth Amendment rights.
McFadden argued that Superintendent Vice Adm. Sean Buck and former Secretary of the Navy Kenneth Braithwaite violated Standage's free speech rights because they are separating him because of opinions they do not like.
The government, led by Assistant U.S. Attorney Kelly Marzullo argued that the military has the right to separate Standage because free speech is limited in the military, based on if it negatively affects good order and discipline in the military.
Standage's tweets, which called for use of military force against antifa and classified Breonna Taylor's death as justice, negatively affected his standing and the military's, Marzullo argued in her opposition to the preliminary injunction motion.
Federal Judge Ellen Hollander did not rule on the preliminary injunction after a Friday afternoon hearing, and it is unclear how long it might take her to rule on it. She has previously characterized the case as one that keeps judges awake at night, a sentiment she repeated.
"I don't know when this case is going to be over, and that's what concerns me," she said Friday.
Even if she grants Standage the injunction before the end of May, it would not necessarily allow the midshipman to graduate because it holds the status quo, which would not include his graduation.
Standage started graduate school at the University of Maryland in the spring, and his coursework at the academy is finished. However, he still needs to complete some of his military requirements. He may not also be able to graduate if he has unresolved conduct charges.
McFadden is not arguing for his client to be allowed to graduate while the case for declarative relief is being hashed out in court, he said during the hearing. Instead, his client would be one of the midshipmen who have a delayed graduation.
Standage is also likely to be removed from the academy, as a temporary restraining order preventing the academy leadership from following through with the separation expires Feb. 19. Hollander did not extend the restraining order, Marcia Murphy, spokeswoman for the U.S. Attorney's Office, wrote in an email.
If Hollander grants the preliminary injunction, Standage would be able to return to the academy.
Braithwaite officially separated Standage in January, one of his last acts as secretary. In expelling the midshipman, he overturned the decision of the assistant secretary of the Navy, Manpower and Reserve Affairs, who Braithwaite delegated separation power.
McFadden, in his preliminary injunction motion and supporting documents, claims this was an unusual practice and one done to advance Braithwaite's political career. Marzullo argued Friday that the former secretary had the right to rescind his delegation.
Hollander spent most of the hearing Friday questioning the two sides, as she did during an Oct. 30 hearing in the case. Some of the arguments surrounding the First and Fifth Amendment complaints were rehashed Friday.
The focus was on the First Amendment violations because McFadden needed to show Standage faces irreparable harm if he is definitively separated, as well as his client's ability to succeed on his complaints. The irreparable harm, McFadden argued, is Buck and Braithwaite's action chilled Standage's speech and that of any other midshipmen with similar views.
Hollander does not condone Standage's speech, she said repeatedly, but she raised concerns that separation was too harsh of a punishment. She questioned Marzullo about why Buck chose not to send Standage to remediation.
"But he's 21," Hollander said. "And people who are 21 do dumb things. Are these people you don't try to salvage?"
In his decision to separate Standage, Buck wrote that if Standage did not know he should not have tweeted what he did after three years at the academy, then remediation would not be successful.
McFadden argued that Standage could not know the standard for social media conduct because it is enforced arbitrarily at the academy. He pointed to tweets from other unpunished midshipmen that compared former President Donald Trump to dictators or Klu Klux Klan members and one that called for Louisville, Kentucky, to be burned down after a grand jury failed to indict officers involved in the death of Breonna Taylor.
Marzullo argued that Standage received social media training and is taught the Navy core values, which Buck cited in his decision.
Under the "Commitment" section of the core values is one that read, "Show respect toward all people without regard to race, religion or gender," which Marzullo pointed out as one Standage may have violated.
Marzullo's office declined to comment after the hearing. McFadden did not respond to a call for comment.
Hollander did not indicate which way she was leaning by the end of Friday's hearing, telling the attorneys she did not know what her decision would be on what she described as "difficult issues."
It is clear that the military does not want Standage, she said, and she is not sure why she should force him into the military. However, she did question the possibility of having the midshipman graduate from the academy without serving.
Standage would likely have to repay the academy for his college degree, an amount of at least $175,000, because he would not be able to complete his service requirement if Hollander decides to rule in that way.
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