The Supreme Court's Other Bogus Ruling
Does lying serve a useful social purpose? Is it a protected form of speech? These are the questions I take up in my column this week for Hoover's Defining Ideas.
The nonstop debate over the constitutionality of the Patient Protection and Affordable Care Act has regrettably drawn attention away from the Supreme Court’s 6–3 decision in United States v. Alvarez, which struck down the 2005 Stolen Valor Act (SVA) on First Amendment grounds. The operative provision of that statute reads:
FALSE CLAIMS ABOUT RECEIPT OF MILITARY DECORATIONS OR MEDALS. — Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States . . . shall be fined under this title, imprisoned not more than six months, or both.
The statute increases the maximum penalty for the offense to one year when the misrepresentation applies to the Congressional Medal of Honor.
The great flaw in our current First Amendment jurisprudence starts from its false premise that lies are really not that bad after all. Here, the Court became emboldened to strike down the SVA, which rests on a powerful intellectual pedigree.
The truth is, the Court’s constitutional jurisprudence has become increasingly incoherent. The root of the current constitutional malaise—which I have written about here and here—stems from the complete dissociation of constitutional law from ordinary theories of personal responsibility as developed by the common law. Hence, we find ourselves in an unhappy position. The government today is unable to cope with certain forms of admitted fraud. At the same time, it is not required to honor its most basic commercial and business imperatives, as its recent ruling on special assessments inArmour v. Indianapolis demonstrated. You cannot get results that bad by accident. It takes a deeply misguided constitutional worldview to get there—a worldview that is all too often practiced by a majority of the justices on the Supreme Court of the United States.
Continue reading at Defining Ideas.
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Comments:
Apr '11
Re: The Supreme Court's Other Bogus Ruling
So does that make penalties for similar offenses under the UCMJ unconstitutional?
Nov '11
Re: The Supreme Court's Other Bogus Ruling
I'll accept just about any prohibition against force or fraud, but this goes further than that.
Webster's define's fraud as
Did Mr. Alvarez do such a thing? Or did he merely lie. His lie did not incite a riot. No mob attacked anyone. No one was defamed. No violence was done and no one lost property.
So this comes down to a case of mere lying, and sloppy lying I'll add because you can find every Medal of Honor Citation here.
Yes, lying is bad. Yes, we as a society should discourage it. But should the state be involved in such a thing? Such a brazen and stupid lie, so easily checked, that does no physical harm to anyone, nor deprives them of property, should not be unlawful.
Aug '11
Re: The Supreme Court's Other Bogus Ruling
After debating at lenght on this, and on a topic I really do want to agree with spiritually, all I can say is "What is next? banning 'FBI: Federal Body Inspector' T-shirts?" they arguably have the same effects as SVA. De miniumus non curat lex!
Nov '10
Re: The Supreme Court's Other Bogus Ruling
My friends the cave dwellers never give up! Fred Cole and Dramman we have argued this to death in another thread and all I can say is that this ruling in effect legalizies a lie, something that i do not believe has ever been done in the US before. In the end, like Kelo, this decison will cause more havoc and will eventually go back to the Court for some, errr, refinement.
Jul '12
Re: The Supreme Court's Other Bogus Ruling
(H'mmm. I wrote the below before I saw that others have sorta asked the same question. I'm asking about the legal philosophical basis. And hoping I can understand the answer. I'm big on "bonds of trust," btw, not that it matters.)
I'm stuck. Not your fault. I've muddled myself the past two hours trying to find the right victim of the crime. If I falsely enhance my reputation and am not in a position to profit or to usurp authority--I'm not pretending to be a policeman or fudging my professional qualifications or selling snake oil--is the only victim society--whose bonds of trust I weaken by telling lies? Does there need to be any other more demonstrable victim for it to make sense to prohibit the action? If not, is this like the prohibition of false swearing in court?
I'm feeling like I felt having to flip to the answers in the physics book for the question: do two objects continually halving the distance between them ever meet? (Zeno's Paradox). The answer there was: Of course they do. Are you RETARDED?
Jan '11
Re: The Supreme Court's Other Bogus Ruling
Fred Cole: I'll accept just about any prohibition against force or fraud, but this goes further than that.
...
Did Mr. Alvarez do such a thing? Or did he merely lie. His lie did not incite a riot. No mob attacked anyone. No one was defamed. No violence was done and no one lost property.
So this comes down to a case of mere lying, and sloppy lying I'll add because you can find every Medal of Honor Citation here.
Yes, lying is bad. Yes, we as a society should discourage it. But should the state be involved in such a thing? Such a brazen and stupid lie, so easily checked, that does no physical harm to anyone, nor deprives them of property, should not be unlawful.
Agreed! And, seriously, many veterans expect much too much gratitude to be bestowed on them from non-veterans. If one is giving a veteran something (like a job, for instance) just because of some prestigious award and not for the over-all merit, skills, talents, and knowledge of the individual, something is wrong.
Apr '12
Re: The Supreme Court's Other Bogus Ruling
Professor Epstein:
The sin is acute, but like many here, I must agree this doesn't seem to be the legitimate purview of our laws (local or federal), nor our Constitution.
Consider the fact that Lyndon Johnson was awarded the Silver Star during operations in the Pacific in WWII. During the action in question, only Johnson ever claimed that his plane had come under enemy fire. According to the air crew and flight records, the plane returned to base because of engine trouble, and never came under fire--though several other planes in the mission which made it to the target, did come under deadly fire and were shot down.
Johnson was a Congressman at the start of the war, who had established a warm and friendly relationship with President Roosevelt. We are forced to presume that for this reason alone, McArthur awarded him the Silver Star (since there was no other verifiable reason).
Most of the men in the service understand this happens occasionally.
Bedsides, legitimate MOH Awardees will often claim the ones who really deserved their medal never returned home.
The Red Badge of Courage is a poignant story about pretended valor.
The lesson is: valor's invisible.
Apr '12
Re: The Supreme Court's Other Bogus Ruling
Just one other point, Professor, if I may: in your article at Defining Ideas, you claim a harm was done. Without producing evidence in the form of numbers, I have to doubt your math.
Definitely harm was done, I agree, but it seems exclusively to Alvarez, alone.
I think there is a greater harm in encouraging the general belief that the government is our main line of defense against fraud. The law is definitely an important societal tool, and punishing fraud is indeed a legitimate and major function for a free society. All my libertarian brethren on the left and right spectrums will agree; the power to penalize fraud is a fundamental key to ordered liberty.
Your concern that the law is increasingly unable to exercise this power against fraud is valid enough.
However, we must all burn the meaning of caveat emptor into our hearts. This too is an important fundamental for a free society.
Protecting ourselves against lies with law is not only cowardly, it's counterproductive. If you've never been scammed by anyone, you won't understand humanity.
Victimless crimes should not be punished by the law, since this is always, without exception, a double punishment.
Edited on July 11, 2012 at 3:34amNov '10
Re: The Supreme Court's Other Bogus Ruling
For once I agree with Fred. I don't know whether this law is unconstitutional or not, but it is unnecessary. There is no wrong prevented by this law which is not already covered by existing anti-fraud statutes. If what the offender did doesn't rise to the level of fraud, that's a reason to shun him, not lock him up.
We need more shunning nowadays.