Federal Courts Have No Business Striking Down the Stolen Valor Act

When I was a young lad, I was taught that, in general, it was wrong to lie and proper to tell the truth.  As I got a little older, that black and white version of the world got suffused with some gray.  Tact was an important element in life, so that white lies, which are intended to ease social interaction were regarded as an important tool for getting along with other people.  As I thought more deeply about the subject, I also realized that there were some situations in which people were under a duty to lie.  Hence, my regard for philosophy suffered a body blow from which it has never fully recovered when I first learned of Immanuel Kant’s absolutist assertion that it was even wrong to protect an innocent person against certain death by a vicious assailant who was seeking him out.  Lying as self-defense seems to be as natural as using force in self-defense.

Now it turns out that the Ninth Circuit thinks that we may have set the presumption in the wrong way.  The cause célèbre involves a common problem whereby all sorts of dubious characters make false statements about their bravery and heroism in war.  A recent story in the New York Times now reports that learned judges have concluded that the First Amendment protects these individuals from prosecution under the Stolen Valor Act. 

The question is why.  To Judge Milan D. Smith Jr., the argument was simple enough.  If the courts upheld act, “then there would be no constitutional bar to criminalizing lying about one’s height, weight, age or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke.”

The response to this argument comes in two parts. The first is that in some of these cases, the misrepresentation is more serious than these flippant remarks let on, at least when people rely on these false statements to their detriment.  Perhaps we should not criminalize all of them, but lest we raise this argument to a constitutional principle, we might as well say that we should not criminalize taking property from others by false pretenses, insider trading, or threats of murder.

The second is that misrepresentations of military prowess is in fact a very serious violation of a strong code.  I can recall at least some instances in which soldiers who wore medals that they did not earn killed themselves in disgrace after their wrong was discovered.  It is also the case that many individuals might well be prepared to give jobs or support to individuals on the strength of these representations, which makes them look like a particularly heinous form of fraud. 

All in all, the First Amendment protects the freedom of speech, which is not to say that it protects all speech acts.  The idea of freedom of action is always cabined in by the libertarian constraint against force or fraud.  Once that principle is kept in mind, the judicial invalidation of the Stolen Valor Act should be seen as a mistake of giant proportions.  Thank heavens other courts have been prepared to mete out some well-deserved punishment.  As for the Ninth Circuit decision, my guess is that it will be overturned by a 9-0 vote if the matter ever reaches the Supreme Court.

  1. LowcountryJoe
    Richard Epstein: It is also the case that many individuals might well be prepared to give jobs or support to individuals on the strength of these representations, which makes them look like a particularly heinous form of fraud. 

    I think this is a problem in itself. Supplying opportunities to people should be based on some sort of merit that is connected to the opportunity, not something that took place under very different circumstances.  Yes, character does matter and sometimes an act of bravery on the battlefield can be connected to someone’s overall current character.  But not always!  I personally know of an instance where a Non-Commissioned Officer was awarded a Silver Star for supposed valor during an evening where he gave an order to engage a target that just happened to be one of our own and it resulted in a fratricide (a few of them, actually).  He can honestly tell people that he was awarded that medal.  And I’m sure that when he tells people the circumstances, he omits portions of the events.  

    How would a court get to the bottom of these kinds of representations?  Should it even concern itself?

  2. wilber forge

    It should be well known what will come out of the Ninth Circut Court.

    A question to you… Would the common practice of TestiLying by police officers be upheld as free speech in some context. Whether under oath or not ? Or given in evidence ? 

  3. Robert E. Lee
    Michael Labeit: If it can be demonstrated that a particular act of lying involved fraud, slander, or libel, then I think such an act should be criminalized. However, if neither fraud, slander, nor libel are involved, then I believe it should be protected speech, however base. · May 21 at 10:31pm

    I couldn’t have said it better.

  4. Pseudodionysius

    We will make a Thomist out of you yet, Mr. Epstein. No man should be haunted by the Categorical Imperative in his middle years. I invoke the Long Doctrine on a recent Rob Long Martini shot episode (yes, I read Aquinas, Epstein, The Code of Justinian and relax with Rob Long’s martini shot radio spot) whereby Facebook is commonly understood to be a fictional countenance of your real life activities.

  5. Michael Labeit

    I wouldn’t criminalize insider trading.

  6. Michael Labeit

    If it can be demonstrated that a particular act of lying involved fraud, slander, or libel, then I think such an act should be criminalized. However, if neither fraud, slander, nor libel are involved, then I believe it should be protected speech, however base.

  7. Sisyphus

    The awarding of medals for occasions of fratricide is an abhorrent exception, not the rule. The Ninth Circuit Court is to jurisprudence as John Kerry is to military honor. Ack! Paper cut! Another purple heart! Lying about military decorations is categorically fraud, seeking to achieve the status and esteem that society (as opposed to academe) places on heroism in defense of the republic. Whether it is to bed someone, to get a job, to get a drink, or simply to gain social access otherwise unavailable. There is no good reason. And if a case involving a good reason did find its way to court, a prosecutor, judge and jury should take that into account in the spirit of justice.

  8. ShellGamer
    Michael Labeit: If it can be demonstrated that a particular act of lying involved fraud, slander, or libel, then I think such an act should be criminalized. However, if neither fraud, slander, nor libel are involved, then I believe it should be protected speech, however base. · May 21 at 10:31pm

    When does lying become fraud? In common English, I don’t think it would be unusual to refer to someone who falsely claimed to be a war hero as a “fraud.”

  9. Grendel

    The question is whether true speech is an absolute value in itself or must serve some higher principles.  Pace the 9th Circuit, I would say the latter.  One of those principles is respect for the nature of the human person, whose intellect is made to seek the Truth.  Telling an untruth offends against both the speaker and the hearer.  Yet our humanity and society both countenance lies of varying strengths while acknowledging the force of “Thou shalt not bear false witness against thy neighbor”.  The commandment implies the second principle, Justice, by which “one returns to each that which is owed him” (Aquinas).

    Thus, in the classic example, the intellect of a Nazi searching for Jews is not an autonomous truth-seeking machine.  It is in service to an evil will, and the Nazi is not owed the truth.  The case for social lying is weaker; hence, society has created ambiguity in phrases such as “(not) at home”.

    The Stolen Valor act forbids not mere social lies but an injustice:  claiming merit that belongs to others.  This is fraud, trading in false currency of social respect. Society is right and required to protect the honor of those who serve it.