Can the Federal Government Arrest You For Lying About Your Military Record?
On Wednesday, the Supreme Court will hear arguments on United States v. Alvarez, a case that challenges the Stolen Valor Act. I posted about this case back in October -- the Stolen Valor Act is a federal law that makes it a crime to falsely claim to have won military honors.
The case involves a minor politician in California who publicly claimed to have been a retired Marine, a wounded veteran, and the recipient of the Congressional Medal of Honor. But he was none of those things. The Ninth Circuit held that the Act violates the First Amendment’s protections of free speech. Although the Obama administration couldn't bring itself to defend the Defense of Marriage Act, it is going all out to get the Supreme Court to reverse, and uphold the Stolen Valor Act.
There's an excellent summary of the arguments pro and con over at SCOTUSblog. In a nutshell, the government is trying to convince SCOTUS to evaluate the law under "intermediate scutiny," which requires only that the government produce an "important" interest to abridge free speech, rather than a "compelling" interest.
Well, hey, I have nothing but contempt for anyone who falsely claims to be a decorated veteran, but balancing tests like "intermediate scutiny" are pure judicial inventions. The plain text of the First Amendment says that Congress shall make "no law" -- none whatsoever -- abriding free speech. The framers did not say that Congress can abridge free speech so long as it has a really "important" reason. This same kind of balancing test has been used repeatedly to uphold laws that forbid abortion protests in the vicinity of clinics. The framers accepted laws against libel, fraud, and perjury -- because all of those types of statements produce concrete harm.
No doubt, falsely claiming a military honor is an insult to all those who earned such honors. But is there any harm? The Administration argues that false claims undermine "morale, mission accomplishments, and esprit de corps within the military.” I'd like to hear if readers with military experience can opine on that argument -- I can't. But I do note that the same arguments, when made in the context of "don't ask, don't tell," were given short shrift by the Administration.
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Dec '10
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Isn't it a simple matter of his having defrauded his constituents by inducing them to vote for him in part due to his misrepresentations? The harm isn't only to his opponents whose votes he "stole," but to his constituents in giving them a materially different representative than the one they thought they were voting for.
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Well, fraud usually requires some sort of economic harm to the victim. But since politicians are forever picking our pockets, one probably could make the case...
Jul '11
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
I'd like to see this hypocrite on Dr.Phil.
Nov '10
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
An unavoidable suspicion here is that the Obama administration does not really care about upholding the Stolen Valor Act as much as it cares about having an “intermediate scrutiny” precedent in a First Amendment case because that will prove useful in other and future contexts.
Future Second Amendment cases, for example.
Edited on February 21, 2012 at 6:32pmMar '11
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Well, here is one military veteran who thinks the law is utterly silly. It only exists to puff the peacock feathers of politicians who likely never served at all. Disgusting, sure. But a crime? Nuts.
(Army Bands, 1977-2004)
Nov '11
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
I'd think that the limiting factor is what "harm" can be defined as, in a legal sense.
Morally I would say there's harm in how the claim is used: we've repeatedly seen people, mainly leftists, falsely claim the mantle of military service to give them a shield against criticism: see Jesse MacBeth for example. But if that harm is actionable is debatable.
Dec '10
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
There are a few bits of language that currently are not protected by the 1st Amendment that should come under its umbrella should the law be upheld. This veteran would like to use some of that language to and about Mr. Alverez.
Mar '11
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
It's vile to claim honor to which one is not entitiled, but it shouldn't be illegal. Shame can be a publicly beneficial concept -- it's a pity we don't seem to have any anymore.
Mar '11
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
On the one hand I think to myself "I'd be willing to see the law repealed if Mr. Alvarez swears under oath in a legally binding court order not to press charges against any veterans, now or in the future, who see fit to take corrective action against him via physical means."
On the other, I remember that we're a nation of laws, and sometimes the greater good of those laws sometimes means that they protect scoundrels. I respect the good-hearted and sincere intentions of those who passed the Stolen Valor Act, but it seems to me the 1st Amendment wins the day here.
The nice thing about that is, turns out, the 1st Amendment works for us too. I therefore thoroughly support the use of all available modes of speech to expose and publicly shame and condemn this scurrilous man and his ignoble example.
May '10
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Intermediate scrutiny is a crock in alienage or sex discrimination cases as well. Kill it! Even the 9th Circuit gets the occasional case right.
It is our job to do homework. And this guy surely ran against the most incompetent opponent ever with respect to oppo research.
Jan '11
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Seems to me that the relevant philosophical question here is whether an insult is a harm. Legally.
Is hate speech, when it isn't complemented by any acts of discrimination, or any reasonable threat, a mere insult or is it legal "harm?"
(On a side note: I have a personal interest in this issue, because when my wife calls me an idiot, I want to know if I have standing for legal relief. )
Aug '11
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
It used to tickle me that persons of assumed importance would wax grandiloquent as they honored us with their interpretations of that hard to grasp phrase, "Congress shall make no law." You have to admit it is a poser.
Did the framers mean "Congress shall make to law ... unless the speech is something that annoys someone?"
Perhaps they meant "Congress shall make no law ... unless it's a recording, because that isn't really speech, but translation of electronic signals?"
It would all seem very silly were it not for the fact that not long ago we had a president who professed confusion about " just what the meaning of 'is' is and a similar uncertainty about the meaning of that obscure (possibly from Old High Frisian?) word, "alone."
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
If husbands had standing in that situation, KC, it would truly open up the floodgates of litigation!
Jan '11
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Adam Freedman:
If husbands had standing in that situation, KC, it would truly open up the floodgates of litigation! · 0 minutes ago
Darn. I had hope there for a fleeting moment.
I guess it's back to "yes, dear."
Dec '10
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Adam Freedman
Well, fraud usually requires some sort of economic harm to the victim. But since politicians are forever picking our pockets, one probably could make the case... · 2 hours ago
Isn't election fraud a criminal act? If a candidate falsifies his filing papers, he's subject to prosecution in most jurisdictions, I believe. So I'd put his factual misrepresentation of his military experience -- as opposed to misrepresentation of his political positions, which are protected political speech -- into at least the same moral category as falsifying his filing papers. Whether the Stolen Valor Act or any other law criminalizes that aspect of defrauding the voters is a separate question (I doubt the Act was written with that specific aspect in mind).
May '10
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Seeing a politician with out the lies for the first time is kind of like the first time you see your wife without her makeup... It's not pretty but you knew it was going to happen eventually. But is it fraud?
Where else might one be prosecuted for claiming a credential? Should I be able to say I am a lawyer because I listen to Epstein and Yoo? Should I be able to represent myself as a doctor? Obviously those are the extreme cases in licensed trades.
But on the other hand, John Kerry almost rode his lies to the White House...
Nov '10
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
I'm former Army, just to establish my credentials. I have, if I remember correctly, the Army Good Conduct Medal, a Battalion Certificate of Achievement, and something else which I can't remember. You know why I can't remember: because getting those awards aren't important to me. They are the result of my general good character, not the reasons for it. If you think that somehow a guy lies about his military service or lack thereof affects military esprit decor it is because you yourself don't understand it. Alvarez's lies don't take away from my experience as a soldier; if they did then my experience is worthless. Let the citizens of the great state of California deal with him as they see fit, but for the sake of all that's holy, don't infringe on what is perhaps our most cherished of rights in a vain attempt at making those of us who do and have served feel some sort of justice exists. We aren't that stupid.
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Ducatista: An unavoidable suspicion here is that the Obama administration does not really care about upholding the Stolen Valor Act as much as it cares about having an “intermediate scrutiny” precedent in a First Amendment case because that will prove useful in other and future contexts.
Future Second Amendment cases, for example. · 4 hours ago
Edited 4 hours ago
I agree. Unfortunately, both the 7th Circuit and the DC Circuit have tended toward an "intermediate" approach to the Second Amendment. Brett Kavanaugh's dissent in the DC Circuit's "Heller II" decision is an excellent read on this point, and he thoroughly discredits the whole idea of using a balancing test for the Second Amendment. His brethren, alas, seem to be impervious to logic.
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Duane Oyen: Intermediate scrutiny is a crock in alienage or sex discrimination cases as well. Kill it! Even the 9th Circuit gets the occasional case right.
It is our job to do homework. And this guy surely ran against the most incompetent opponent ever with respect to oppo research. · 4 hours ago
Agreed! See my response above to Ducatista's post.
Feb '12
Re: Can the Federal Government Arrest You For Lying About Your Military Record?
Lying -- except when "under oath" -- isn't a crime. "Can the Federal Government Arrest You For Lying About Your Military Record?" Sure. You didn't ask, "may the federal . . . ?"