February 23, 2012

"When should knowing lies be restrictable on the ground that they cause emotional distress?"

Eugene Volokh paraphrases the question the Supreme Court Justices were asking yesterday, as they considered whether the Stolen Valor Act violates the First Amendment. Volokh opines:
[T]he potential chilling effect on true speech of punishing the lies about oneself (a matter on which one should rarely fear an honest mistake that could be misinterpreted as a deliberate lie) is less than the potential chilling effect on true speech of punishing lies about others. So this is one of the things that leads me to think that the Stolen Valor Act should be upheld....

22 comments:

MikeR said...

I saw the post in Volokh, and had the same reaction as here: Please don't use confusing titles, I get confused enough. I hate it when I can't tell what's the verb.

EDH said...

Filing an amicus brief on behalf of petitioner, Commander McBragg, veteran of the Khyber Pass.

Bob Ellison said...

The phrase "intrinsic First Amendment value", which General Verrilli uses, is interesting. Must a practice of a right have intrinsic value in order to be protected?

The Court did not pick up on this.

Bender said...

Fraud and false pretenses for personal gain have never been deemed to be protected speech.

Being not protected, the nature of the injury resulting therefrom (financial loss, emotional distress, etc.) is a question of criminal law or tort law, not constitutional law. And whether there was any injury at all is a question of evidence, not constitutional law.

Here, Alvarez engaged in fraud, telling known lies, in order to gain some benefit for himself, even if only public praise which might increase chances of later reelection to office, etc.

edutcher said...

Think Winter Soldier and the question answers itself.

PS Somebody, maybe Power Line, had a great line to the effect that all these posers are Ranger, SF, SEAL Team; nobody was an oboe player in the 82nd Airborne.

Methadras said...

Let me understand this? The SVA is being challenged by people or someone wanting to lie about their non-existent military career or to gin up the little bit of one they had by adding known falsehoods to it? And this person or people want to use the 1st amendment as a shield to defend their lies or rather their 'right' to lie?

Honestly, this really isn't America anymore. We are no longer fighting for freedom, liberty, or happiness. Instead we are fighting for the breadcrumbs of the falsehood of what we think America is to us. The idea that people would go to such lengths to protect fraud and lying is beyond contempt. The idea that any court would entertain this on any legal or philosophical grounds is even more strikingly dangerous. I think Santorum might be right about the spiritual warfare going in this country against its people and striking at its heart. There is a clear and present movement to neuter people of character, principal, integrity, and honor and it shouldn't stand or be tolerated anymore.

Triangle Man said...

You're all doing it all the time. Erving Goffman said so.

traditionalguy said...

Apparently the SVA needs an Amendment. So let's pass one.

Unknown said...

What edutcher said--most poseurs are seals, rangers or SF--when anyone extols their virtues in these lines of work, the default position is they are lying. The number of men who have been thru elite training programs is very small.

As to the substance of the issue, I really dont give a damn if people lie about their accomplishments--happens all the time. Certainly dont see it as some first amendment issue--if someone puffs you up with bullshit, simply ask them for their DD214 (which to the last of my recollection, Mr Kerrey has never produced)

Peter said...

It's hard not to see a slippery slope here. Today, it's lying about your military service or something connected with it.

Tomorrow it will be embellishing a war story? Or a sports victory?

Especially in the age of internet, anyone who makes stuff up about military service, medals, "I was at the battle/front/whatever" is almost sure to be outed, and then subject to withering ridicule.

Is that not enough?

Richard Dolan said...

Bender's comment would have more force but for the fact that, where the First Amendment is implicated, an appellate court is required to conduct an “independent appellate review” as a matter of “federal constitutional law.” Bose Corp. v. Consumers Union, 466 U.S. 485, 510 (1984). “[T]he rule is that we examine for ourselves the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment . . . protect.” Id. at 508 (internal quotation marks and citation omitted). Ordinary rules about " whether there was any injury at all is a question of evidence, not constitutional law" misses the point of Bose. In the same vein, the Court has held that it is not free to add new exceptions to the First Amendment -- we have the historic ones and that's it.

Sotomayor, Kennedy and Kagan all seemed focused on fitting the claim of harm here into some recognized category that the cases have historically accepted. At the same time, the justices were concerned about a rule that might invalidate, e.g., 18 USC 1001 prosecutions.

From the oral argument, it sounded like the Gov't could only count on Scalia's vote, with possibly the CJ as well. Sotomayor, Kennedy, Kagan and Ginsburg all sounded quite skeptical.

The best exchange in the argument was clearly this:

Justice SOTOMAYOR .... 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.

GENERAL VERRILLI: As a father of a 20-year-old daughter, so do I, Justice Sotomayor. ...

Another great moment in SCOTUS history.

LarsPorsena said...

Unknown:

'.......Certainly dont see it as some first amendment issue--if someone puffs you up with bullshit, simply ask them for their DD214 (which to the last of my recollection, Mr Kerrey has never produced).'

99% of American's don't have a clue to what a DD214 is.

The Drill SGT said...

LarsPorsena said...
99% of American's don't have a clue to what a DD214 is.


LOL,

that's one of the SVA test questions :)


PS: Alvarez was guilty IMHO.

Levi Starks said...

I don't see it as a free speech issue. You're free to say anything you want. The problem isn't that you're saying something that isn't true, the problem is when you knowingly benefit in some tangible way from a lie you told, when in fact that benefit should have gone to another. Hence the name "stolen valor" you stole valor that belonged to someone else. The constitution doesn't entitle you to steal something that belongs to someone else.
It's not the telling, it's the taking.

Jim Howard said...

Article 1 Section 8 specifically gives Congress the duty to make "necessary and proper" laws to "To raise and support Armies" and "provide and maintain a Navy".

Does it not follow that there is a compelling public interest in protecting the military from the obvious harm that can arise if any person can intentionally claim rank, awards, decorations, and types of service for the purpose of deceiving others?

The Constitution isn't a suicide pact. A narrowly focused law like the Stolen Valor Act is clearly constitutional.

Certainly SVA is at least as constitutional as a law that defines growing a plant in your back yard or not buying insurance as engaging in interstate commerce!

Richard Dolan said...

"Does it not follow that there is a compelling public interest in protecting the military from the obvious harm that can arise if any person can intentionally claim rank, awards, decorations, and types of service for the purpose of deceiving others?"

No, it doesn't. Unfortunately, the harm is far from obvious and the Solicitor General had trouble articulating who was harmed and how. It's clear enough that lying about receiving a decoration is an effort at self-aggrandization. But the premise is that the award itself is highly pretigious. Claiming for oneself prestige yuo didn't earn doesn't reduce the prestige that (rightfully) accrues to those who did earn the decoration. Other than generalized statements asserting harm, there didn't seem to be any real showing that any such lessening of the benefit of an earned decoration had occurred. The effect of 'stolen valor' is really more in the nature of an insult.

The closest the SG came to articulating harm was analogizing it to intentional infliction of emotional distress. That seems a bit far afield (the 'stolen valor' isn't targeted at anyone, and under the statute it is irrelevant whether anyone knew about it or suffered any such distress).

The court spent some time trying to figure out whether any sensible line can be drawn between lying about receiving an award, lying about serving in the military (or, really, any other organization), and lying about educational achievements. None emerged from the argument. And it's hard to see, e.g., how someone who lies about having attended Harvard harms those who really did. Justices Sotomayor, Kagan, Kennedy and Ginsburg were all interested in those issues.

Justice Breyer was mostly interested in exploring whether there were less restrictive alternatives to criminal prosecutions that would serve the Govgt's legitimate interests. The classic response (which the defendant's attorney gave) was 'more speech, not prohibitions on speech.'

This is a case that many thought the Govt would win because of its symbolic value and the Court's reluctance to second guess Congress. But this Court takes First Amendment issues very seriously -- the Court is much more protective of those values than its predecessors. From the argument, it's hard to say how it will come out.

Richard Dolan said...
This comment has been removed by the author.
Synova said...

Sure, it hurts feelings, but I don't think that's important at all.

I think that what is important is that military hero status is personal capital. It's worth a great deal. It's worth actual money and it's worth even more in indirect ways. People *do* it because it *gets* them things.

Michael The Magnificent said...

Couldn't the free speech utilized in telling the lie be countered with more free speech utilized in exposing the liar?

If this is really an issue, perhaps someone can create a charity we can all donate to which will go towards paying for full-page newspaper ads exposing and shaming the liar.

Synova said...

Except, you see...

Exposing the liar does, indeed, harm a particular person. That's the point of it. How do US laws treat that?

In any case, there are all sorts of laws that punish people for pretending to have qualifications they don't have. I don't understand why it's impossible to write a law that does the same for veterans as it does for active duty or police or lawyers.

Sure, some of these guys are caught taking advantage of a reputation they didn't earn in social venues, but most often when they get *caught* they're operating as the moral authority to some anti-war group.

I don't understand why it's so impossible to explain who is being harmed by that.

SGT Ted said...

Saying that people who lie about military service don't gain anything is patently false; they gain the trust and respect of community and veteran organizations.

They gain undue status in their home towns. Sometimes parades are thrown for them, based on their lies.

They get public speaking gigs and ground breaking gigs and other public profile stuff. Some try to use it to launch political careers.

The justices approach seem to want to ignore the material benefits that can come from faking wartime service or Valorous Awards, like pretending they've never heard of the military and the history of our nation honoring our war vets and how that could lead to personal gain.

They could maybe apply some of those Hardvard and Yale smarts to realise that they themselves get speaking gigs by virtue of them being a Chief Justice.

I highly doubt any of these Justices would support false speech if it were somebody impersonating a USSC Justice and getting speaking gigs and other public accolades.

SGT Ted said...

I don't understand why it's impossible to write a law that does the same for veterans as it does for active duty or police or lawyers.

Which is why I think the objections are mere handwaiving and subject changing. If laws against impersonating a cop or a lawyer are Constitutional, why isn't the SVA?