Stolen Valor and the First Amendment*
You don’t have to be a conservative who’s helped coopt the American flag as a rightwing Republican political symbol—replacing the Elephant, which no one under the age of 50 even recognizes anymore as the GOP’s official emblem—to be offended by someone’s false claim of having received a military honor, especially one awarded for extraordinary valor. Count me among those who both distain the GOP’s appropriation of the flag as its partisan symbol—my late father, a combat veteran, a lifelong liberal Democrat, and famously (among those who knew him) very mild-mannered, used to suggest angrily that the next time a military draft is needed, Congress limit it to registered Republicans—and who find repulsive the misrepresentation of receipt of such a military honor.
So I sympathize with the sentiment of the members of Congress who voted to enact the Stolen Valor Act, signed into law in 2006, which criminalizes the false representation of having received any U.S. military decoration or medal and which provides for a more severe penalty for falsely claiming to have been awarded the Medal of Honor than any other decoration or award. But not enough to want the Supreme Court to uphold its constitutionality, in the case in which it heard oral argument this morning. Nor do I expect that the Court will uphold it, notwithstanding Scalia’s apparent vote to do so, in seeming contradiction to his famous vote in a 1989 case to strike down a Texas statute that criminalized flag burning. (Notably, Scalia and Stevens swapped ideological roles in that case, with Stevens voting to uphold the law and Scalia providing the fifth vote to strike it down as violative of the First Amendment.) And notwithstanding his joining the opinion written by John Roberts for all the justices except Alito two years ago striking down as a First Amendment violation a 1999 federal statute making it a felony to depict in a video, or sell the video depiction, of people crushing small animals for sexual gratification. That’s because I don’t think Scalia’s vote will be needed.
I believe that the crush-video opinion, United States v. Stevens, is the more relevant one, because, unlike the flag-burning case, Texas v. Johnson, the purpose of the speech that the statute prohibits is not political, and therefore is not “core” First Amendment speech under the Court’s free-speech jurisprudence, but instead is made for the personal benefit of the speaker. Which is why I expect that Kennedy, who joined Scalia in the flag-burning-statute case, and Roberts will vote to strike down the Stolen Valor Act as unconstitutional.
Mark Sherman, the Associated Press’s Supreme Court correspondent, reported after this morning’s argument:
Some justices said they worried that upholding the Stolen Valor Act could lead to other limits on speech, including laws that might make it illegal to lie about an extramarital affair or a college degree, or to impress a date.
“Where do you stop?” Chief Justice John Roberts asked at one point.
But Roberts later joined other justices in indicating that the court could make clear that, if it upheld the law, it would only be endorsing an effort to prevent people from demeaning the system of military honors that was established by Gen. George Washington in 1782.
Well, yes. And had the Court upheld the crush-video statute as constitutional, it would only have been endorsing an effort to prevent people from sadistically crushing small animals to death—one of the videos at issue showed a woman killing a small dog by stomping the spike heel of her shoe into the dog—demeaning humanity, as Alito effectively implied in his dissent. He said that in his opinion, the most relevant First Amendment opinion was one from 1982, in a case called New York v. Ferber. Ferberheld that, even independent of the “obscenity” exception to First Amendment protection, child pornography is not protected speech, because advertising and selling child pornography provides an economic motive for producing child porn, which in turn is intrinsically related to child sexual abuse and which in fact usually involves the use of actual children, and which has little artistic value—and that the government has a compelling interest in preventing sexual exploitation of children.
“I believe,” Alito said, “that Ferber’s reasoning dictates a similar conclusion here.” No, he granted, the government’s interest in preventing sexual exploitation of children is more compelling than its interest in preventing the sadistic sacrifice of defenseless animals in the name of profit. But the government does nonetheless have a strong interest in preventing the sadistic sacrifice of defenseless animals in the name of profit, and that interest is compelling enough to overcome the strong presumption of First Amendment protection, given that the sole purpose is profit, not art, not politics, not information. Just profit.
To which I, a dog lover of the first magnitude, and someone who near-literally feels the physical pain of an abused animal she’s read about, said to myself, “I agree.”
But John Roberts didn’t and either did Antonin Scalia or Anthony Kennedy.
“When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished by charlatans. That’s what Congress thought,” Sherman quotes Scalia as saying this morning.
Well, maybe that is what Congress thought, but it enacted the statute without first holding any hearings on it. And Sonia Sotomayor provided some evidence this morning to refute the contention that the lies have devalued the military medals, including the Medal of Honor, have been diminished by the lies of people claiming falsely to have been awarded them. Acknowledging that the lies justifiably provoke an emotional reaction, she noted that the Court has long and repeatedly held that the provocation of offense, alone is insufficient to justify government censorship. Her money line? “So outside of the emotional reaction, where’s the harm? And I’m not minimizing it. I, too, take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true.”
Sherman mentions after the quote that Sotomayor is divorced.
Which brings the question back full circle, to Roberts’ question, “Where do you stop?” My guess: With a well-meaning statute that criminalizes the making of a false claim to have received a military honor. Which, offensive as it, does not encourage sadistic killing of animals in order to videotape them for profit.
The case argued today is U.S. v. Alvarez.
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* UPDATE: Dahlia Lithwick’s Supreme Court Dispatches report on the oral argument, posted tonight on Slate, is a must-read. My take, after reading it: That trademark infringement is now gonna be a criminal offense. Well, not having the trademark, actually, but saying you have a copy of it when you don’t.
Uh-oh. I better stop saying that that crystal vase in my living room is a Waterford. Y’know, when people ask.
Yikes.
Bev:
Boneheads! And this reached SCOTUS? What freakin idiots.
There is no damn medal awarded then or today which will bring back my friends who perished for something stupid while I still stand here before you. The devaluing of any honor bestowed comes from the ignorance of what such honors have cost those who no longer can stand with us today. They are utterly worthless when measured against such losses. Pieces of pot medal and cloth. I am with Kerry and you can have mine if it would bring one friend back . . . just one.
And this is so much more important than states claiming mens rea and actus rea must be plead under insanity thereby sending those who lack cognigirtive ability to prison for crimes unkowningly committed.
run
allow me to say i agree with you wholeheartedly.
i would venture to guess that the SC has friends who get turned on by crushing small animals. and unlikely to have friends who wear medals they didn’t earn.
but after they make it illegal to display real medals not earned, will they make it illegal to display fake medals not earned? or illegal for young men to tell silly girls that they are navy seals?
Well, in fairness to the Court—and I’m just about gagging saying that—they just about had to agree to hear the case once a lower federal court held the federal statute unconstitutional. The Court virtually always agrees to hear the case when that has happened, because otherwise the federal statute is treated as unconstitutional within that several-state appellate region, and because the Supreme Court believes that ultimately only it has the authority to declare a federal statute unconstitutional.
I read that another federal appellate court ruled that the statute is constitutional. I don’t know how long ago that was, but presumably that criminal defendant also filed a cert. petition with the Supreme Court, or if the appellate ruling was very recent, will do so. I don’t recall reading that the Court denied a cert. petition in a case of that sort, so the ruling is probably very recent, but I’m not sure.
But the reason I’m gagging in writing this is exactly what your point is: that these lazy, profoundly arrogant jerks agree to hear about 70 cases per year, most of them at the request of a state or a state- or local-government employee, in order to reverse a lower-court ruling in favor of a criminal defendant (especially when a federal court dared to grant a habeas petition on a state-court criminal conviction), or when some government employee has been found guilty in a civil lawsuit claiming a civil rights violation. Or if it’s some corporation whose been sued by a consumer. Or if you’re the rightwing plaintiff in a culture-wars case.
These jerks work only part-time; they just returned from a three-week vacation, after having a long Christmas break, etc., etc. They receive about 9,000 cert. petitions per year, and require an expenditure of about $5,000-$7,000 in order just to file one—unless you also file a so-called paupers petition. Guess how many cert. petitions they grant filed by so-called paupers petitioner? Yup. You got.
Those “justices”—what a misnomer—disgust me beyond belief.
You really are onto something, coberly, when you write “i would venture to guess that the SC has friends who get turned on by crushing small animals. and unlikely to have friends who wear medals they didn’t earn.” Dahlia Lithwick wrote a great article not long along in Slate saying that the justices’ Fourth Amendment search (e.g., government surveillance) jurisprudence seems to be determined by whether they think that they themselves could be the object of it. But I think a whole of their jurisprudence is based on what they think could affect them personally or someone they care about.
These jerks don’t get nearly the scrutiny they should, although to some small extent Citizens United changed that by breaking some taboos about it, I think.
“Where do you stop?”
I really don’t find the slippery slope argument by itself very convincing. It can be asserted against just about any regulation. what is the principle behind asserting it here andnot in other instances?
Not sure I understand, Chris. Most regulations don’t have First Amendment implications. They may be challengeable on other grounds. But on First Amendment grounds? Uh-uh.
make clear that, if it upheld the law, it would only be endorsing an effort to prevent people from demeaning the system of military honors that was established by Gen. George Washington in 1782.
this is meaningless b.s. George Washington’s name is dragged in to evoke a misty feeling of patriotism to support a bad law.
GW did not establish a system of military honors. That system is as old as Hammurabi or older.
As for preventing the demeaning of… military honors, why do we need a law at all? Wouldn’t public disclosure of the false display and subsequent shaming accomplish all that was needful?
disclaimer… when I was about four, my uncle let me wear his medals when i played soldier in the back yard. i suppose it is only my self interest… i wouldn’t want my four year old self hauled off to jail.
my uncle, who actually got shot at, unlike, say, Roberts, expressed his opinion of military honors when he gave them to his four year old nephew to play with.
What, they don’t know any old men with foggy memories? Seems unlikely. Doesn’t everybody have an uncle who tells stories?
Beverly
i think i do understand chris
the Supremes are reluctant to take away first amendment protections from what is arguably (to them) speech. They are willing to take it away from child porn because they see that pron as enabling a crime against children. they are less willing to take it away from crushing small animal porn… because, they say, maybe the next step would be taking it away from “regular” porn, or even from Lady Chatterly. What they mean is that the crime of crushing small animals does not offend them… or community standards… as much as the crime of sexual abuse of children, so they find the “bright line” between protected “speech” and not protected difficult to justify on any grounds that seem solid enough to them in this case.
i would argue that there is “no principle” here.. only the eye of the beholder. This seems to me to be the case with most of the other “solid legal principles” the justices rely upon in their four to five decisions.
“The Law” as we have it is probably better than no law, or flagrantly arbitrary law, but one should not push it too hard looking for eternal principles that guide the Justices always to reach a “correct” decision.
What we have, and what the Founders knew we had, is just another “power” to through into the balance to tend to restrict the growth of tyranny. works as good as anything else. but a little hard to stomach sometimes.
downpupy
you must be thinking of the time Reagan liberated the concentration camp. but i think people in that class don’t often resort to displaying medals they didn’t “earn.” Though they may bloviate about their Service to the Country.
If the military services simply kept a file of all recipients of truly significant medals for valor and maintained that file as pen to public inspection there would be little or no need for such dumb ass legislation. If fakers know there is a significant chance of being outed for their fakery they will be less likely to fake it. If there is no dollar value to a false claim of heroism why should anyone care all that much about chicken hawks who falsely claim to have been awarded for valor?
Jack the proximate cause for this legislation and the court case push-back was precisely the efforts do citizen-soldiers to establish the equivalent of such registries and to publicly out the fakers.
Your proposal is right on, how difficult would it be for the services to establish a web check able registry? But absent them following your advice your ire seems pointed in the wrong direction.
Yeah the Pentagon could get off its collective fat ass and make this legislation and subsequent court actions superfluous. But absent that action the law still in my opinion has a point. Particularly when the liars often if not always use the lies to gain a power advantage over competing speech: “I am an ex-Seal and a Navy Cross awardee so shut up”. Maybe that should not have anymore effect on me than some guy claiming to be a three sports star at his prep school, but as a vet from a military family these guys are claiming deference at a deeper level. And when I run into it, and I have, I resent the hell out of it.
Bruce
I am sorry you feel that way. But I can understand it.
I come from a background that does not despise military heroism, but does despise the system of using “honors” as a way of seducing young men to go get themselves killed for the benefit of their landlords. the military honors system is more important to the rulers than to the guys who win the medals.
I could say “i am the first one in my family…” to avoid military service. it was a near run thing. i had all the stupidity of the average boy child – teenager, but a combination of circumstances led me to miss the call. one of those circumstances was the absolute contempt with which my relatives regarded military honors… again, not contempt for those who won them, but contempt for those who awarded them.
Bruce
I am sorry you feel that way. But I can understand it.
I come from a background that does not despise military heroism, but does despise the system of using “honors” as a way of seducing young men to go get themselves killed for the benefit of their landlords. the military honors system is more important to the rulers than to the guys who win the medals.
I could say “i am the first one in my family…” to avoid military service. it was a near run thing. i had all the stupidity of the average boy child – teenager, but a combination of circumstances led me to miss the call. one of those circumstances was the absolute contempt with which my relatives regarded their own military honors… again, not contempt for those who won them, but contempt for those who awarded them.
i am aware that this note will cause some people to be angry at me, and may even cause pain to those who earned honors or loved those who did. But people need to learn not to get hurt, or angry, at someone else’s opinion, or false displays of “honor.” They might disagree, but there is no reason to be hurt by it. On the other hand, there is good reason for folks to learn not to be seduced by pretty ribbons and testimonials and glorious funerals to giving their lives, and their children, to maintain their rulers in the style to which they have become accustomed.
put it another way
someone wearing a medal is just another hero. as long as people believe he is, he does not “demean” real heros. i would not vote for someone just because he is a hero. courage does not always equal wisdom.
should that person turn out to be lying about his medals, his heroism, he will suffer the shame he deserves. that still does not demean the honor of real heros… who, it has been my observation, tend not to brag about it.
The problem Bruce is that I don’t see how it can be made illegal to bullshit one’s way to fame or noteriety. Lies can only be confronted. Unfortunately lies aren’t illegal, and most political candidates would be in jail if lying were illegal. On a scale of relative harm I think lies about personal valor are less destructive than lies about political record and/or ideology.
If you’re interested in the concept of valor check out this video. Understand what the subject is saying about his personal experiences, especially in battle, and reflect on the fact that it took the Army several decades to honor the man for his incredible exploits. There ought to be a law against the military failing to identify instances of exceptional valor.
BTW, I found his very brief reference to his need to pray most interesting and amusing.
Embedding attempt #2: