I see nowhere in the Constitution where the Congress is given authority to tell us we cannot lie, even about whether or not we received a military honor. The Supreme Court agreed last week, and struck down the Stolen Valor Act.
Yes, Congress can make laws about lying in certain cases where it might cause direct harm to someone else (e.g., fraud) or obstruct justice (e.g., perjury). But lying about a medal? While that could cause some hurt feelings and justifiable anger, that's not nearly sufficient to justify a valid law under our Constitution.
Justice Alito recognizes this principle in his dissent, but claims that such lies "inflict real harm." But even if true, certainly they do not always inflict real harm, and the law's language ignored whether or not harm occurred. Alito talks about people who commit fraud with their lies, but that is already a crime, and this law includes all lies, whether they cause such harm or not.
He then says these lies "tend to debase the distinctive honor of military awards," that families are harmed "when an impostor takes credit for heroic actions that he never performed," and that it is a "slap in the face" against people who did serve. None of this is an infliction of real harm. I don't want to get psychoanalytical here, but we control our own feelings. If their lies make you feel bad, that's on you, not them.
It really is just about personal feelings. And there's no implication in our Constitution that protecting personal feelings is sufficient cause to take away our fundamental rights. The KKK has the right to say terrible things about various religious and ethnic groups, causing significant hurt feelings, and most of what they say is lies, too (though granted, it's not the same thing, but the hurt feelings and negative effects on society are significantly worse).
The decision was correct. The conservatives -- usually in the right -- were wrong on this one.
Cross-posted on <pudge/*>.
Posted by pudge at July 05, 2012 08:44 AM | Email ThisYou are off on a tangent talking about hurt feelings and the like. Let's see....okay here it is: "Whoever, with intent to obtain anything of value, knowingly makes a misrepresentation regarding his or her military service, shall--"
Sounds like fraud, thievery and all sorts of horribleness.
Is it a crime to misrepresent yourself for financial gain in other ways? Oh yes it is according to the first part of Chapter 47 of Title 18.
To me it seems that in general your right of free speech does not include the right to commit fraud for gaining something of value - except now it is okay to do so specifically if you are lying about military service. Seems to be a stretch that the liberals (all five of them) did on this one.
Posted by: doug on July 5, 2012 09:45 AMThat understanding is, to my understanding, incorrect.
According to the text of the law, value is only mentioned once, and in a different context. This is what it says, in the most salient part:
Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.
That's it. No fraud required. The Stolen Valor Act has nothing to do with fraud, receipt of anything of value, or any kind of direct harm. This law makes it a crime to lie about receiving military decorations, regardless of the context of the lie.
As I recall, this legislation was introduced in both the House and Senate by D's; it passed the House on a voice vote and the Senate by unanimous consent. This was a rare piece of bipartisan legislation. Further, the government's case was argued by Obama's SG.
As far as who was right and who was wrong on this one, it would be hard for a true conservative to read Justice Alito's dissent and not conclude that it was the Court's majority that was wrong.
Posted by: old timer on July 5, 2012 11:45 AMThe question is not so much 'who could it hurt' as 'who could it help'?
As conservatives, we can all help ourselves and our cause by lying as much as possible to put ourselves in a better light than we deserve.
And now, we have the green light from SCOTUS to do just that.
Posted by: Better Cheddar (Remember Wisconsin) on July 5, 2012 12:12 PMI meant the conservatives on the Court.
it would be hard for a true conservative to read Justice Alito's dissent and not conclude that it was the Court's majority that was wrong.
False, as I've already demonstrated.
It's odd that you condemn lying, while at the same time lying about what I said.
I never implied in any way whatsoever that I am in favor of lying.
The question is not so much 'who could it hurt' as 'who could it help'?
That is incorrect. The question you pose is irrelevant. The Constitution, via the First Amendment, creates a presumption that speech is legal. Any law banning speech must only do if the speech causes harm.
As conservatives, we can all help ourselves and our cause by lying as much as possible to put ourselves in a better light than we deserve.
And now, we have the green light from SCOTUS to do just that.
You're confused. It's always been legal to lie as much as possible, except where you cause harm (through fraud, defamation, etc.). The Supreme Court didn't change that.
They did change that. Congress, with whom the Supreme Court holds too much deference, found in the act that harm was being caused.
What the liberal arm of the Supreme Court just did was kick open a bigger door to let in more offenses to the room that houses 'no victim' crimes. It is one more step to not prosecuting heroin users, animal abusers, seat belt violators, assisted suicide, parental notification of abortion, prostitution and many others.
It won't take very long for the court to say that those crimes, contrary to Congress' or the States' opinions don't cause harm, even though they found them to.
Posted by: doug on July 5, 2012 12:40 PMBut here's where I am unclear on this. Say for example someone claims to be a Medal of Honor winner who isn't and has a website selling widgets that proclaims, "Buy widgets from me because I am Medal of Honor winner". People presumably buy these widgets partly because of this reason, but they are otherwise just regular widgets you can get on Amazon. Is this now legal under this decision? Customers might feel cheated, but they otherwise received a product that they paid for. Is it fraud?
Posted by: Palouse on July 5, 2012 01:06 PMIt is proven that the televangelist is no war hero and is simply mailing a kleenex to contributors as a 'prayer blanket' over which he has said only one prayer to a warehouse of Kleenex boxes.
After all, the contributor still has a perfectly useable kleenex, right? Who has been harmed?
Posted by: Better Cheddar (Remember Wisconsin) on July 5, 2012 01:26 PMThat's incorrect. I did.
Frankly, I find Justce Alito's dissent much more compelling.
Shrug. I showed where he was wrong. If you disagree, say where and why; otherwise, you add nothing to the discussion.
Well, they stated it. They never showed harm, and the President never demonstrated it. They simply asserted it. And when you're talking the First Amendment, you can't merely assert it, and even providing evidence isn't good enough: it has to be sufficient evidence that justifies overriding individual rights. And hurt feelings, and silly analogies to trademarks, is insufficient.
What the liberal arm of the Supreme Court just did was kick open a bigger door to let in more offenses to the room that houses 'no victim' crimes.
You're wrong. This was based on existing precedent that speech is presumptively legal and cannot be banned. In the case of speech, yes, it has long been the case that there is no such thing as a "no victim" crime when it comes to speech.
That said, I do think victimless crimes should not be on any books ... but this doesn't get us any closer to that, being based on the First Amendment presumption of legal speech, and not my conservative view that my right to swing my fist ends where your nose begins.
My understanding is that a. this would be covered under existing fraud laws now, and b. if not, that such a fraud law could be constitutional if written. I could be wrong on either, but I don't think so.
Cheddar: After all, the contributor still has a perfectly useable kleenex, right? Who has been harmed?
If someone lies to get you into a contract, that in itself is generally considered harm, as I understand it. It's fraudulent misrepresentation, and from what I've read and heard, the criteria for fraudulent misrepresentation does not include whether or not the false statement of fact is relevant to the product or service received.
For example, someone saying money will be used for charity is fraud, even if you gave that money for a good or service.
Anyway, as you can tell by my wording, I am not sure about this aspect ... so, grain of salt etc.
'Dumb as a mud fence', as Sheriff Arpaio is fond of pointing out to illegal aliens.
Posted by: Better Cheddar (Remember Wisconsin) on July 5, 2012 02:09 PMI do believe Fraud is only categorized as "harming" someone else....I think Fraud is mainly categorized at personal "gain".
When the majority says that the Stolen Valor Act would be constitutional if they specified the harm to an individual (vs. to the institution of the medals, or in EPA parlance harm to the environment), they intentionally ignored the "personal gain" angle.
Fraud is specifically defined in the US Code, not as a 'harm' to others, but as a personal 'gain'.
This act was written because law enforcement wasn't bothering with charging fraud in these cases, likely because of the no 'harm' done idea. They wrote the act to double up on the charge and specifically identify it so law enforcement would start prosecuting the fraud.
There are good examples of where the Stolen Valor Act worked and Alvarez is just one where it didn't, the court shouldn't have tossed the whole act, though.
In Alvarez the personal 'gain' was dubious, but likely still there.
Posted by: doug on July 5, 2012 03:40 PMWhich cases? If it were to combat specific cases of people being harmed, then they should have written that way. If there was no actual harm, then ... well, then it's obviously protected free speech.
I couldn't care less about personal gain. Every act we perform in our lives is -- we think at the time -- for self-gain of some kind, or else we wouldn't do it. All I care is that he isn't causing direct harm to someone else. Other than that, the government has absolutely no right to step in.
There are good examples of where the Stolen Valor Act worked and Alvarez is just one where it didn't, the court shouldn't have tossed the whole act, though.
No. If the law is overly broad such that it applies to clearly protected free speech, then you have to throw out that entire portion of the law.
You have just touched on why the government has fraud laws that make fraud a crime for personal gain, rather than direct harm.
Attempted murder could be a crime that has no direct harm. Shoplifting, lying to get a job on a contract --- those are all cases of the harm being indirect, just like environmental laws, speeding laws.
In the case of Fraud resulting in personal gain rather than direct harm, the law is there because congress or legislatures did it to protect society (drug offenses, incest, etc).
Not every act that we do for personal gain is a result of fraud, though. And for those that are, they should be prosecuted under the fraud laws, it just so happens they weren't prosecuting this type of fraud so Congress tried to make sure they were.
Doesn't much matter, the same wing of the Supreme Court doesn't want anyone prosecuting for immigration violations either --- just no direct harm I guess.
Posted by: doug on July 6, 2012 08:17 PM