Stolen Valor and the First Amendment*

Beverly Mann | February 22, 2012 8:44 pm

Law
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.

—–

* 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.

Tags: , , , , , , Comments (18) | |