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Thursday, February 23, 2012

Is Lying Constitutionally Protected Freedom of Speech?
Stolen Valor law and the swiftboaters

The Stolen Valor law is intended to protect those heroes who have earned their medals.  If that is fair and proper - and I believe that it is - then it should also apply to those who try to 'Swiftboat' heroes.  If someone lying about having earned a medal of honor dilutes and diminshes that honor, so does denying they've earned it by lying about their heroism.  The damage done amounts to two sides of the same coin; they are inextricably connected

Clearly, what is before the court is a type of lie, a type of misrepresentation, that is very narrow and specific.

But it raises an interesting question about free speech and the capacity to limit it. I've been very concerned at what appears to be attempts to make dissent more difficult, from the pepper spray incidents and other excessive actions at the occupy movement, to the arrest and removal from a public hearing, at the orders of the Republicans in control of Congress, of the documentary film maker of the movie Gasland, the Academy Award nominated movie about fracking. That arrrest seemed to me to be entirely about the subservience of our Republican members of Congress to their masters, their big oil and natural gas donors, a part of their selling us out to special interests where freedom of information and freedom of speech was MOST important. But the military, and representations about the military and service and awards seems very individual, in scale, in contrast. That was what struck me first; it is about a person trying to gain some form of recognition, possibly some individual profit, from a fraud on a very small scale. But it is a particularly onerous and offensive fraud, one that - I'm agreeing here with a Supreme Court Justice with whom I usually differ - one that diminishes the accomplishments of those who DID truly make heroic sacrifices, take terrible risks, demonstrate extraordinary courage to merit their military award. In the case of the Gasland film maker, he is diminished by his loss of free speech, and free access to our representative government which is supposed to serve the people not special interests, and by freedom of information being diminished...........and so are we all diminshed by his loss of freedom which is also our loss. He is harmed, and we are harmed. In the case of the man who lies about receiving a medal for war service, the crime is one where the liar benefits in some way or ways, in this case by a position, at least in part. And many more people are harmed, and those we most honor are diminished by a kind of theft, a kind of fraud.

I think Justice Kennedy has it correct, that the better approach to properly protect the medals and the honor, is to provide them some sort of trademark or copyright protection that acknowledges the very special nature of this kind of national award so as to protect those who do earn such recognition from having that taken from them, or diminshed.  And included in such protection of those we honor, and of the medals themselves, perhaps we should include a penalty for those who lie about someone's service that would encompass the Swiftboaters for example, as well, for the same reasons, that it diminishes those who earned those honors and the medals they were awarded.  If we are going to have a truth test, let's have a real test of truth relating to these very specific and precious honors, one that punishes those who falsely claim service, and those who falsely deny the service of others. Both would, under the same reasoning, cause the same kind of harm.

I don't know that imprisonment is an appropriate consequence for this kind of action. In that regard as well, I'm uncomfortable with what this law does. At some future point in time, could some important form of dissent or criticism be encompassed by a fictional reference to having earned a medal in some way? Could some valid and valuable form of expression be diminshed by this decision? I don't know, but that too needs to be protected, and in that regard the direction of a trademark or copyright infringement seems the most balanced and careful preservation of all possible rights of eveyrone in this controversy. We have all encountered people who have misrepresented military service, perhaps most notably some of those seeking public office. It is offensive, but our response to it should be measured and appropriate. The proper court for that is the court of public opinion, not a judicial courtroom. However, given the sacrifice for our freedom by those serving in the military, I would also support some form of legislation that penalizes people who substantially and materially lie about military service for profit or gain, as a parallel honor and recognition for all of those who really have served so that their genuine service and sacrifice is also not diminished. In recognition of free speech, which apparently according to the SCOTUS, includes the freedom to lie, we should perhaps categorize this as protection from being defrauded by that lie, the way we should be protected from being defrauded by other kinds of lies and deliberate, significant misrepresentation. That would put the pick-up line dishonesty between strangers who should properly be skeptical of what they are told in a social setting, on an appropriately more trivial standing than someone misrepresenting their service, or making it up entirely, to an employer or for benefits of some kind, where the representation is more serious, and where the potential abuse of trust is more tangible. 
From NBC:


The CBS coverage goes into greater detail:

February 22, 2012 12:28 PM 
High court torn over law banning lie about medals

(CBS/AP) WASHINGTON - The Supreme Court appears to be sharply divided over a law that makes it a crime to lie about having been awarded top military honors.
The justices engaged in spirited debate Wednesday over the constitutionality of a 2006 law aimed at curbing false claims about military exploits.
Some justices said they worried that upholding the Stolen Valor Act could lead to laws that might make it illegal to lie about an extramarital affair or a college degree.
But others indicated that the law is narrowly drawn to try to prevent people from demeaning the system of military honors that was established by Gen. George Washington in 1782.
On Wednesday's "CBS This Morning," correspondent Chip Reid reported on the case of Xavier Alvarez, who told an audience in 2007 that he received the Medal of Honor, which was false. He was charged and convicted under the Stolen Valor Act, which makes lying about military honors an offense. Alvarez appealed to the high court, saying that the law infringes on his right to free speech.
Should lying about military medals be a crime?
Law professor Jonathan Turley of Georgetown University concurred. "People have to feel they can speak without being criminally punished ... We don't need to start to criminalize all things that the government declares to be lies."
However, retired Air Force Col. Leo Thorsness, who was awarded the Medal of Honor for his service in Vietnam, told "CBS This Morning" that it is ethically wrong to lie about receiving that distinguished military recognition. He also said that people should be penalized for doing such things regarding military honors.
"He is diminishing the honor of the people who want it, who deserve it -- people who deserve it the most," said Thorsness.
As for the implications if the Stolen Valor Act is struck down by the justices, Reid reported that Congress is working on alternate legislation to make it a crime to lie about a military award for profit.

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