March 21, 2011

"Saints may always tell the truth, but for mortals living means lying."

Said the judge:
"Phrases such as 'I'm working late tonight, hunny,' 'I got stuck in traffic' and 'I didn't inhale' could all be made into crimes," wrote Chief Judge Alex Kozinski, concurring with the federal appeals panel's denial of the government's request for an en banc hearing of the case. "Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as 'rational basis review.'"
Faced with a criminal indictment, Xavier Alvarez pleaded guilty to violating the Stolen Valor Act by telling his colleagues on a water district board in Los Angeles that he had been in the Marines for 25 years and had been awarded the Medal of Honor in 1987.

39 comments:

PaulV said...

Circumcize the Jdater with a stone knife.

Michael said...

I see Mr. Kozinski's logic, but the fact is, the Stolen Valor Act punishes only one very specific type of lie, falsely claiming service in or recognition by the United States military by wearing unearned medals.

Kozinski is making the classic slippery slope argument. It's a legitimate type of argument to make, because in some circumstances we should be worried about the slippery slope effect. But it's often overused.

I don't think the law would have a problem distinguishing between lying about military service and lying about other things.

What Kozinski is really saying is that there is nothing special about military service. He's saying the government shouldn't protect the very medals that it hands out to recognize national service.

It's one thing to say people can trash the flag, but it's worse to say that people can trash military medals.

Maguro said...

The whole getting a Medal of Honor in 1987 thing is probably what tipped them off, eh?

AST said...

Claiming 25 years of military service and the Medal of Honor is not a "white lie." How would Kozinsky feel about an attorney in his court who was found to have never studied the law or had someone else take the Bar Exam for him?

Julius said...

Okay, I'm coming out of the closet...

I'm actually Alex Kozinski in real life, Chief Judge of the 9th Circuit since 2007.

Yeah, I know...

You all think the 9th Circuit is a mess.

It's my bad.

First there was all the porn I was obsessed with.

The fucking press hounds made me give that up. Now I just troll Althouse, bitterly ranting and raving. I got 28 underlings and no more porn, so I've got a lot of frustration to work out.

Now that you know the truth, I'd appreciate being addressed as "Your Honor". Especially by Methadras and edutcher-- bow down before the black robe, bitches!!!

Synova said...

Try that with the little white lie, "I'm a medical doctor."

Bah.

Maguro said...

Or even "I'm a marine biologist".

Synova said...

I had a job interview the other day and my (hopeful) boss noticed my prior service and mentioned he was in the Army.

I had my one medal listed on my resume. It *means* something. It particularly means something to those who knows what it means, as does a simple rank and assignment description. And that's just for normal stuff.

Claiming to be a actual hero isn't a white lie that has no consequences. People do it because they get *substantial* benefit from it, not only socially, but financially. Is it no big deal, just a white lie, when someone embellishes their educational claims?

It's offensive, absolutely. We don't necessarily have a right not to be offended.

But it's also fraud. And fraud is something else.

Carol_Herman said...

James Madison said "if men were saints we wouldn't need government."

And Mark Twain, in his wonderful autobiography, just published 100 years after his death ... said no one could write anything and tell the truth. He called his art, the art of lying. Because of the way we remember things, not quite accurately enough to be the truth.

The Crack Emcee said...

I'm not crazy about his examples of white lies, or the claim that life means lying.

Just tell the truth - or master some social skills.

Geez.

Carol_Herman said...

I used to see pawn shops that had military medals in them for sale.

Oh, yeah. And, don't cha know, John Kerry was in Vietnam.

Firehand said...

Have to agree with AST: this was not one of those 'oil the gears' white lies people use, this was the clown claiming service he had not done and claiming the highest award for bravery we have.

If the bastard can't be convicted of a crime, can we at least introduce him to tar and feathers?

Uncle Pinky said...

*Or even "I'm a marine biologist".*

Is that a Titleist?

Hole in one.

Ben said...

Michael:

It is a "slippery slope" argument, but those come in different forms.

Sometimes they're practical and utilitarian, with the literal implication that allowing some innocuous-seeming thing could lead directly to something much much worse.

But just as often, pointing out the potential for a slippery slope--even one that seems extremely farfetched, as this one does--is just a backdoor way of illustrating the importance of the principle, even in a more innocuous context.

I think the first of these is much more common in politics, and the second is more common in legal opinions, such as this one.

Kozinski knows that the nightmare scenario he describes would probably never happen in this country--among other reasons, because it wouldn't withstand future judicial review. But the formal possibility alone is enough for him to think the principle is worth defending (unsurprising considering his libertarianism and his personal history).

vnjagvet said...

Why should a Stolen Valor Act lie be less criminally culpable than a lie in violation of 18 USC 1001(a) (1) and (2) which provides:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation....

Tyrone Slothrop said...

So if I were to threaten the life of say, Judge Alex Kozinski, I can't be charged with any crime, because I was just exaggerating a little. Wait, you say it's specifically illegal to threaten an officer of the court? Like it's specifically illegal to lie about winning the Medal of Honor? Who knew?

Seven Machos said...

Lying should never be against the law unless you are under oath, and even then the burden is on the jury to expect lies and to sort out the true facts.

First there was all the porn I was obsessed with.

Yet again, Julius, you prove yourself to be a moron who doesn't know what he is talking about. Hilarious. You know little, dude.

themightypuck said...

While I don't exactly agree with the way Kozinski put it, I agree with the result. The presumption should be towards no law unless a law a strong case can be made that a law is needed. There is already a law against fraud so make your case with that. An exception can be made for doctors because I'll bet everyone will agree an exception should be made for doctors and an exception can be made for lawyers because duh! winning.

William said...

I served during Vietnam. My service record doesn't indicate any medals or combat experience or even being stationed in Vietnam. That's because there's a lot of things the government doesn't want you to know about, even now. My sgt, "Doom Boom" Blumenthal lead us on many highly classified missions deep in the interior of Cambodia. We used to go upriver on a Lt. Kerry's boat, the Merry Ferry as we called it, disembark, then cut through the jungle and do our special ops. I can't reveal anything more about these missions. Perhaps, I have said too much already. I just wanted to pass this info along to let you know that you can't judge a man's service by his DD 214. I was glad to serve my country and do not want any special rewards for my valor. The shrapnel scar I carry, which is even more hideous than the one Kerry received, is the only medal I want.

EDH said...

"Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as 'rational basis review.'"

Yea, that's the ticket.

vbspurs said...

"Hunny"? I haven't seen it written that way outside of a Winnie the Pooh book.

vbspurs said...

This is the fate that probably awaited Admiral Jeremy Michael Boorda, who committed suicide rather than face the music of having lied about having added "valour devices" onto two medals, to which he wasn't entitled.

mythusmage said...

Fraud is wrong, period.

Seven Machos said...

Lots of things are wrong. So what, dude? Is everything that's wrong illegal?

If so, good luck making it through the day tomorrow without at the least a long jail sentence.

Bob_R said...

While there is something very special and important about military service, there is also something special about the words, "Congress shall make no law...abridging the freedom of speech." We're already on our ass sliding down the slippery slope. As long there is a "rational basis" congress cam make ANY LAW IT WANTS abridging the freedom of speech. If it wants to regulate political speech, they can do it if they think its a good idea. If they want to protect people who have braved bullets and bombs from jackasses who lie about their military record, no problem.

Fen said...

Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as 'rational basis review.

Fine. There was a time when the solution to posers stealing the laurels of vets was a simple beatdown that put them in a hospital bed for the rest of their life. If the law won't protect us, we'll just go back to the old ways.

Maybe we'll pass our own law: punishment for beating down a poser is a $5 fine...

tree hugging sister said...

I'm a lumberjack and that's okay.

SGT Ted said...

so, hey it'll be ok if I enter his courtroom and claim that I'm an attorney and a judge. I'm just trying to gain a social advantage, right?

Then again, since I am claiming to be an attorney, it will be a given that I'm a liar. Maybe thats the idea the judge is hinting at here.

But, we can go back to the old way of dealing with poseurs, as Fen has suggested.

Class factotum said...

It particularly means something to those who knows what it means, as does a simple rank a

And most people just don't get rank, although some do and are rude about it.

prairie wind said...

vbspurs, I stopped reading when I got to 'hunny' because it was distracting. It's such an odd misspelling--had Alex never heard 'sweetie,' 'sugar,' or 'honey' used as terms of endearment? On FB and texts, I see the kids using 'hun' but I'd bet a nickel that the kids do know that 'hun' is short for 'honey.' Only a nickel, though.

Fred4Pres said...

I am all for first amendment protections and do not want to see it eroded. But I also do not want to see individuals lying about awards they did not earn. What are the penalties for violating the Stolen Honor Act?

Fred4Pres said...

It is a crime to impersonate a lawyer, or doctor. Granted, faking being a war hero does not cause the same sort of harm (or potential harm), but it does cause some harm to those who truly earned such an award.

Fred4Pres said...

I would rather leave stolen valor to a civil issue.

Oligonicella said...

For years I had to listen to my bio father go on with interminable WWII stories. Stories where he experienced much, fought much, did many brave things.

A few years before this bragging pismire finally croaked, my mother told me that all the stories were lies. Worse, they were things *other* men had done that he simply absconded.

How did she know? She was a wire operator here in the states. He was one in Europe. They talked all the time.

*That* is why I find it abhorrent. It takes away from those who actually did.

Bryan C said...

This just isn't a criminal matter. If the guy used his false credentials to defraud someone, then there are civil remedies that person can pursue. If you're really personally offended, then go find the guy and tell him how you feel. You can even punch him in the nose, if you think that's worth the risk to your personal freedom. We don't need to pass a law against every social infraction, and then hide behind the government's skirts while courts and cops make everybody play nice with each other.

Joe said...

Freedom of speech doesn't mean you aren't held accountable for that speech.

Methadras said...

I'm Jack Handy. Yeah, that's the ticket.

Synova said...

"Fine. There was a time when the solution to posers stealing the laurels of vets was a simple beatdown..."

I'm good with that.

Synova said...

Class factotum: You're right and that's a great post you linked. I didn't put my rank on my resume, it would never occur to me to do so. I didn't ask my interviewer his rank or his specific job. You're right, that would have been rude.

I did once work at a manufacturing job with a guy who'd recently gotten out of the Army after being shot in Bosnia. Maybe it was a little rude, but the truth is that someone who knows, knows an awful lot simply by knowing "enlisted six years." And the bosses knew, too, and wanted him to apply for a supervisor position but he wasn't sure. We were talking about it and I sort of had to kick him in the butt over it and told him, "I *know* how much supervisory experience you've got. It's silly to think you're not qualified." So that was the context I was thinking about there.