Does the First Amendment Protect Fibbing?
Over at SCOTUSblog, there's an interesting discussion about the Stolen Valor Act, a federal law that makes it a crime to falsely claim to have won military honors. Last year, the Ninth Circuit held that the Act violates the First Amendment’s protections of free speech (United States v. Alvarez).
The Obama administration is trying to get the Supreme Court to reverse the Ninth Circuit, on the grounds that knowingly false statements are outside the scope of First Amendment protections. Interestingly, the administration has adopted the argument of Jay Bybee, our own John Yoo's former colleague at the Office of Legal Counsel, who is now a Ninth Circuit judge and who dissented in the Alvarez case.
The facts of the case do not elicit sympathy for the defendant. Alvarez was a California public official. He stood in a public meeting and announced that he was a retired Marine, a wounded veteran, and the recipient of the Congressional Medal of Honor. He was lying on all counts.
Still, I'm not comfortable with the conclusion that "false" statements are outside of the First Amendment. Generally, courts distinguish things like defamation and fraud because there is harm attached to them (eg, if Alvarez used his phony war record to obtain money, he'd be guilty of plain old fraud, and there would be no First Amendment issue). But to imprison a man for merely uttering a statement that is deemed to be "false?" My fear is that the administration is so keen on this because they want to lock up all "climate change deniers" for making "knowingly false statements." See where I'm going with this?
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Aug '10
Re: Does the First Amendment Protect Fibbing?
"knowingly false statements are outside the scope of First Amendment protections"
How far would this doctrine extend? Would it mean that science fictional political commentary -- knowingly written as fiction -- is outside the scope?
Would it mean that the government could use the DoJ to prosecute those who they believed were issuing "knowingly false statements" in opposition campaign ads?
Would it mean...?
This is a broad doctrine, and one that I feel distinctly uncomfortable with -- and I'm someone who thinks that public figures and the government should have more recourse in cases of libel/slander.
Dec '10
Re: Does the First Amendment Protect Fibbing?
This is a tough one. I'd just call him a boob right up to the point he claimed the CMH. At that point I'd have real CMH recipients line him up against a wall and open fire. Falsely claiming such an honor is slander against those who rightfully receive it.
Jun '10
Re: Does the First Amendment Protect Fibbing?
If it was enforced vigorously across the board, it would criminalize Progressivism, so that's how we know it would only be selectively enforced, or not enforced at all.
May '10
Re: Does the First Amendment Protect Fibbing?
I think if it is limited to claims about military service it's permissible and the act seems to be narrow and specific enough.
May '10
Re: Does the First Amendment Protect Fibbing?
False statements are already a crime when you make the to the police. In court, if your memory differs with someone else you can be convicted of lying. (Libby). Even true statements that run counter to what the DA said about you can get in jail (Stewart).
Since we are already way down at the bottom of this slope, why should we draw a bright line over scum claiming these accolades.
Now, if we want to stand against the above issues, then sign me up on this one.
Nov '10
Re: Does the First Amendment Protect Fibbing?
I started to say "Clearly you cannot put someone in jail for simply lying" but clearly that is not clear. But I am certainly not in favor of criminalizing the simple act of lying. If he got a job because he lied, that's one thing. As you say, "plain old fraud." But standing up in a meeting and telling a lie....dumb yes, criminal no.
Apr '11
Re: Does the First Amendment Protect Fibbing?
Not only is there technically "no harm" in merely lying about service, but too many unintended consequences could accompany the remedy. I see this like I see flag burning or the right of the KKK to march. If we can't depend on private sector outrage and ostracization to remedy these situations we're well beyond the help of laws.
Besides, is it really worth compromising our principles over such scum?
Re: Does the First Amendment Protect Fibbing?
True, but in all those cases, the lying results in a recognized harm: obstruction of justice, ie, an innocent man could be convicted or a guilty one could go free. So I think there is a fairly clear distinction between Alvarez's foolish boasting and perjury, etc.
Apr '11
Re: Does the First Amendment Protect Fibbing?
Oh, and let me clarify that by no "no harm" I mean no physical harm. When it comes to the law that's all I'm concerned about. Once we get into the business of criminalizing emotional harm, or causing offense, we open the door to all manner of nonsense.
As conservatives we know all too well that no law remains "narrow and specific" for very long.
Aug '10
Re: Does the First Amendment Protect Fibbing?
I agree that it shouldn't be a criminal offence, but I sure hope the State of California fired him.
Aug '10
Re: Does the First Amendment Protect Fibbing?
Adam Freedman
True, but in all those cases, the lying results in a recognized harm: obstruction of justice, ie, an innocent man could be convicted or a guilty one could go free. So I think there is a fairly clear distinction between Alvarez's foolish boasting and perjury, etc. · Oct 13 at 12:33pm
Also, perjury involves lying under oath. Should the First Amendment really apply once somebody has been sworn in?
Apr '11
Re: Does the First Amendment Protect Fibbing?
It isn't quote deemed to be "false" unquote [Excuse me, but the snarky, dismissive "deem" is a hot button: "how dare you go deeming without bureaucratic certification and authenticated legal counsel"]. It is flat, self-evidently false.
He has claimed a reputation (in public service, btw) that others have earned and he has not. That such a reputation is desirable and valuable is demonstrated first by his claim itself, second, by the fact that it is accorded only to men who have performed worthy and even extraordinary service, and third, by the fact that men are willing to accept notable hardship and danger to earn it. By falsely claiming military honors, Alvarez has cheapened those honors by reducing their rarity (inflation) and the achievement they imply (labor theory of value). The falsity of his claim has called into question rightfully earned honors, just like affirmative action: when a psychiatrist is pushed through medical training because of his race and religion and then shoots a dozen people, it reduces the respect given to the credentials of others of that race or religion.
Hence, Alvarez has damaged many people, and it is incontestable that if his behavior were to escape sanction, those people would be at risk of much greater injury. Further, Alvarez has harmed social welfare, by damaging the web of trust that is a valuable and necessary good for a functioning, self-governing society.
It is preposterous to suggest that in 1791 the people of the US considered part of "the freedom of speech" to be an inviolable right to bear public false witness about one's military service.
Edited on October 13, 2011 at 9:52pmDec '10
Re: Does the First Amendment Protect Fibbing?
The people who want to nibble away at our freedoms always do it this way; find some particularly terrible abuse and proclaim that we must, we simply must, do something to stop this kind of thing.
How about, for a change, the government just accepts the fact that life is imperfect, and doesn't succumb to "Do Something Disease". I like the First Amendment just the way it is.
Feb '11
Re: Does the First Amendment Protect Fibbing?
Alvarez was a local water district board member when all this came down. He was convicted of some unrelated crimes and did serve time for them as I recall. He trashed his own reputation in the community, as his statements and behavior were well publicized locally over a long period of time. I think his behavior was despicable, but, unless a person is under oath, I think it is problematical whether such statements are or should be criminal.
Re: Does the First Amendment Protect Fibbing?
Misthiocracy
Also, perjury involves lying under oath. Should the First Amendment really apply once somebody has been sworn in? · Oct 13 at 12:44pm
Good point, yes I should have mentioned that. I agree that there is a difference between simple lying and lying after having sworn to tell the truth. Not that Bill Clinton would necessarily agree.
Re: Does the First Amendment Protect Fibbing?
Grendel: Hence, Alvarez has damaged many people, and it is incontestable that if his behavior were to escape sanction, those people would be at risk of much greater injury. Further, Alvarez has harmed social welfare, by damaging the web of trust that is a valuable and necessary good for a functioning, self-governing society.
Edited on Oct 13 at 12:52 pm
I appreciate the force of your opinions, but I think that if we allow Congress to criminalize any speech that could "harm[] social welfare" etc, it would seriously weaken the First Amendment's guarantee.
As for "deeming," well, that's the reality of law enforcement. The Act is not self-executing; a prosecutor has to "deem" the statement to be false and then a judge and jury have to agree. Alvarez may have been a clear case, but I'm not sure all cases will be so clear. Did John Kerry "falsely" lay claim to a Purple Heart, particularly after he professed to renounce the medal?
Apr '11
Re: Does the First Amendment Protect Fibbing?
Adam Freedman
Did John Kerry "falsely" lay claim to a Purple Heart, particularly after he professed to renounce the medal? · Oct 13 at 1:11pm
This is an excellent point. Does it do harm for somehow who actually served in the armed forces to mislead as to their actual role? When politicians invoke military service it implies heroism. So, if a politician runs simply as a "World War II veteran" voters may conjure up images of someone storming Omaha Beach and vote for a "war hero," even if the person was stationed stateside and saw no battle or served in a relatively safe support role. In this case, the politician may not have lied, but in a way he did benefit from the sacrifices of others.
Look at the endless debates in 2004 over Kerry's medals and Bush's Guard service?
May '10
Re: Does the First Amendment Protect Fibbing?
He should be fine. Parody is protected free speech. If he claimed to receive a Congressional Medal of Honor, clearly he must have been joking. There is no such thing.
May '10
Re: Does the First Amendment Protect Fibbing?
Adam Freedman
True, but in all those cases, the lying results in a recognized harm: obstruction of justice, ie, an innocent man could be convicted or a guilty one could go free. So I think there is a fairly clear distinction between Alvarez's foolish boasting and perjury, etc. · Oct 13 at 12:33pm
I'd like to know who Scooter Libby or Martha Stewart hurt with their statements.
Jan '11
Re: Does the First Amendment Protect Fibbing?
Seems to me it would depend on circumstances and degree of non-compliance. Answering "I do" when swearing or affirming in a court of law is one thing. Doing so in a marriage ceremony, quite another.
Etc.