October 17, 2011

Does the Stolen Valor Act violate free speech rights?

The Supreme Court has decided to answer that question in the case involving Xavier Alvarez, who was prosecuted for claiming — while running for office — that he'd won the Medal of Honor. The 9th Circuit overturned the conviction on First Amendment grounds.
Chief Judge Alex Kozinski... said people often tell lies about themselves in day-to-day social interactions. He said it would be "terrifying" if people could be prosecuted for merely telling lies....

74 comments:

cubanbob said...

So fraud is now free speech?

Fen said...

Hi my name is Fen and I'm a a lawyer.

And a police officer.

Scott M said...

Ditto cubanbob

Kylos said...

Not a lawyer but I would think the existence of anti-fraud laws would contradict Kozinski's reasoning.

Tyrone Slothrop said...

What umbra or penumbra protects lying for personal gain?

BarryD said...

Good decision. A politician's opponent can look it up and drill him into the ground with this. This sort of lie would seem to be political suicide.

In the modern world, it takes five seconds to find out who has received the CMOH: http://www.cmohs.org/recipient-archive.php

I understand that this sort of thing is an insult people who have received such honors, but massive public shaming is the best consequence for the liar. Otherwise we come too close to letting the government be the arbiter of "truth".

Chip S. said...

Never mind treating corporations like people. How about treating people like corporations?

ndspinelli said...

I surmise our good professor has just moved on from the Brewers. It says she is either in denial or really didn't care that much. If it's the former, then I hope she works through the steps of grief. If it's the latter..c'est la vie.

Chip S. said...

@BarryD--Swiftboater.

Carol_Herman said...

Let's see. Did the guy win his election?

If he lost because he lied, then the "vote" is in.

What's worse is an accusation that you can't disprove.

Here?

If you heard someone swearing by his or her word ... and all you knew was that they were a soldier? Wouldn't that be good enough to go on?

Now. A lawyer. Thought so. Skilled at lying through their teeth.

Now, your in DC. Listening to a "confirmation hearing" in the senate. Believe anyone? I don't!

I'm actually SHOCKED at Alex Kozinski's statement!

Fran Lebowitz, of course, is better qualified. She said she has no trouble making up her mind. And, so she should sit on the US Supreme Court.

She'd be better than any of the other nine.

Chip S. said...

Anyone else a little concerned about a judge who's worried about people getting all worked up about a little dishonesty?

Fen said...

but massive public shaming is the best consequence for the liar.

There's been a contest over at ThisAintHell to pick the worst offender. 24 entries.

Name 3....

(ie. if public shaming worked, you wouldn't have any trouble naming them)

BarryD said...

BTW I also think that the Stolen Valor Act may have been legitimate before computerized databases were accessible to essentially anyone with an interest.

In the modern world, though, such a lie carries its own punishment, and the interest of protecting freedom of speech outweighs other factors. Since it is easy to find out who has received the medal, there's no reason to involve the court system in "outing" the liar.

Andy Freeman said...

In short, there's probably a 1st amendment right to false political speech but no 1st amendment right to make political speech.

The latter refers to the numerous restrictions on political speech under the guise of "campaign financing".

Movie about Hillary Clinton by Citizens United, bad. Movie about Hillary Clinton by Miramax, good.

Leaflet praising McCain by some random group of supporters, bad. Full page article praising Obama by NYT, good.

Mark O said...

Fraud requires at least 9 separate elements, not merely a lie. The attack on free speech is proceeding apace. Once speech is "tamed" and made "civil" we can really be regulated.

cubanbob said...

Mark O said...
Fraud requires at least 9 separate elements, not merely a lie. The attack on free speech is proceeding apace. Once speech is "tamed" and made "civil" we can really be regulated.

10/17/11 10:51 AM

He was looking for a job. There is your fraudulent intention. He stood to benefit from his lie. There was nothing innocent about it. He is as much a fraudster albeit unsuccessful as anyone who has ever lied on a loan application.

Saint Croix said...

Anyone else a little concerned about a judge who's worried about people getting all worked up about a little dishonesty?

Or he's a free speech guy. (Kozinski's brilliant and should be on the Supreme Court). This is the basic problem with punishing lies. See how you just spread a rumor about Kozinski?

The basic problem with punishing "lies" is that it gives the people in power the ability to punish speech--even true speech--by calling it a lie. It's a big chill on free speech.

The Stolen Valor Act is very specific, though, what you might call "narrowly tailored," so it's a hard case.

Lies are not protected speech--think of perjury, fraud, defamation--but the more you expand criminal prosecutions for "lies," the more you endanger our republic.

Fen said...

Barry, still waiting on you to name 3...

Dustin said...

We've got way too many laws and lawyers.

We need a simpler legal environment.

Is this lying outrageous? Absolutely. Do we need to prosecute it? Of course not.

Fen said...

So if I pad my resume with false qualifications, I can't be fired after I'm found out?

Cool. I'm a Rhodes Scholar and Constitutional Law Professor.

And I have 48 hours piloting the Space Shuttle.

madAsHell said...

Guess the party?? Does he write a D or an R after his name??

He also claims to have played hockey for the Detroit Red Wings.

.....but wait, that's not all!!

He also claims to have rescued an ambassador during the Iranian hostage crisis.

There are pictures on Alvarez in a Marine uniform with a chest full of fruit salad.

I'm looking at his photo, and I believe he has a congenital eye problem. I think that would have precluded any enlistment in the Marines.

Fen said...

http://thisainthell.us/blog/?p=26635

AllenS said...

If a used car salesman tells you that a car is in perfect running order, and it turns out to be a lemon, there's nothing you can do about it?

What Mr. Xavier Alvarez did was fraud.

edutcher said...

The 9th Circus strikes again.

AllenS said...

If a used car salesman tells you that a car is in perfect running order, and it turns out to be a lemon, there's nothing you can do about it?

What Mr. Xavier Alvarez did was fraud.


Considering this was perpetrated to get into elective office, where there are all manner of opportunities to interfere with people's lives, it's more than just free speech.

MadisonMan said...

There are Lemon Laws that protect people from bad cars. Alas, not so for bad politicians.

Wouldn't a grand law be one that overthrows an election if the winner knowlingly told a lie?

X said...

If you falsely claim military service, you should be considered to have volunteered and subject to the UCMJ.

amp21s said...

Why was the stolen valor act needed when fraud is already illegal? Not sure he committing any type of prosecutable fraud but, just the fact he lied, doesn't that tarnish his reputation destroying nay political chances at all?

Roger J. said...

not much to add to the comments--there is a web page devoted to recipients of the MOH--he's there or he is not--it does speak to his judgment that he would lie about something so easily verified, but then there was that whole thing about oceans receding and the earth beginning to heal.

I frankly expect politicians to lie thru their teeth (at least many of them)--the lies are too easily found. Public shaming, a la Mr Weiner in NY.

Chip S. said...

@St. X, How does what I wrote about Kosinski constitute spreading a rumor? It's not like I said that I heard that he's a porn addict.

The Drill SGT said...

MadisonMan said...
There are Lemon Laws that protect people from bad cars. Alas, not so for bad politicians.


The Stolen Valor Act was Our Lemon Law. To prevent clowns who didn't serve or didn't earn the awards that we did, from devaluing OUR awards by their lies and behavior.

When somebody stands up in the public square and claims falsely to be a Vet, with decorations, when he was not, I am hurt. He trades on my deeds for his benefit.

The law isn't about Politicans, it is about swindlers.

Brian O'Connell said...

Lying shouldn't be made illegal, generally.

Fraud, where a lie induces someone to do something they wouldn't have otherwise, should be narrowly defined. There should be some immediate, tangible damages. And voting for a pol shouldn't rise to that level. They'd all be in jail in that case, which sounds ok on the one hand, but there are enough factors preventing good people from running as it is.

We should all be free to punish liars as we see fit- but let's not get the govt involved. I mean, that would kill Twitter!

wv: liedcaf, a Starbucks ad.

Chip S. said...

there are enough factors preventing good people from running as it is.

And how many of those factors involve being slimed by false accusations?

Roger J. said...

Drill--BTW congrats on your wife's retirement and thank you and her for both your service.

I am a different mind when it comes to stolen valor--I can, as I know you can, back up your claims with a DD214--I have the all the citations to complete my record.

Is it pathetic when people do that? of course, but then again my BS detector rises when people people claim award they have not received. It makes them poorer, but does not diminish what we know we have accomplished.

Tacky yes--very tacky. But in the end its their problem, not mine.

Paul said...

Fraud is fraud.... And by claiming he was a vet he was defrauding.

Plus, you claim you are a cop and you are also violating the law, right? No difference.

Book'em Danno.

Joe said...

I'm uneasy with the Stolen Valor Act. Where is the line between claiming you received a military award that you did not and receiving a military award for dubious claims? Or those who did heroic things, received honors, but then their story gets a little more dramatic with each telling?

More down to earth, what about the fellow my department hired who claimed to be a principal engineer on a project at his previous company, but was very likely barely a supporting engineer, if that?

Brian O'Connell said...

"And how many of those factors involve being slimed by false accusations?"

A bunch. I take it you mean that if lying became illegal, it would encourage better people to run for office? Even if true, it would chill political speech extremely. A lot of "false accusations" are quasi-true, if looked at from a certain angle. I don't want the govt getting into settling those questions.

Should all those Obama is a Muslim emailers be in jail? Or Truthers? They're wacky, but shouldn't be criminalized.

The Drill SGT said...

More down to earth, what about the fellow my department hired who claimed to be a principal engineer on a project at his previous company, but was very likely barely a supporting engineer, if that?

And what about the fact that people's lives depend on his designs? That's why you guys have the PE. I want my doctor to have an MD as well.

Roger, Thanks. My post was a bit overstated, I don't feel huge pain seeing a bunch of guys driving around with BSM license plates. I was vocalizing a general vet perspective. now if i had your awards, i'd feel more pain.


pps: I'm retiring the blue start and going to my pederast picture.

William said...

This just steams me up. I was a member of Blumenthal's Raiders during the Vietnam War. This cheapens my service and the Congressional Medal of Honor with an Oak Leaf Cluster that I won while on a super secret mission behind enemy lines. I certainly hope that now Senator Blumenthal will craft legislation to keep these fraudsters out of public office.

Alan said...

After "9/11 was an inside job," I can't see how any kind of lying other than perjury can be criminalized.

Alan said...

Well, perjury and business fraud - but other than that...

traditionalguy said...

Fraud is the statement of a known to be false representation of a current fact (not predictions of future ones) that is made to receive something of value.

But is a voter's preference something of value and does being given a medal or not make one more or less likely to receive that vote?

I like making acceptance of a public flogging an optional atonement.

Chip S. said...

I take it you mean that if lying became illegal, it would encourage better people to run for office? Even if true, it would chill political speech extremely.

That says a lot about the content of political speech.

Should all those Obama is a Muslim emailers be in jail? Or Truthers? They're wacky, but shouldn't be criminalized.

IANAL, but it seems to me that under British libel laws GWB could sue one or more Truthers. Certainly Palin could go after McGinniss. And the penalties can be monetary, not necessarily prison time. Are you prepared to argue that Britain's political speech is less vigorous than ours?

Sheesh. I came to this issue an ardent no-limits-on-political-speech guy, but the arguments aren't nearly as persuasive as I'd imagined them to be.

caplight said...

You have to consider the next step. Who is to determine what is a lie? Would it be "The Science Is Settled On This" Al Gore? I'm afraid Kozinski got this one right.

As my lawyer daughter just said to me, "It might be misdemeanor stupid or felony dumbass but it's not a crime."

Brian O'Connell said...

My examples were bad since they introduce libel, which is a different issue. (I would not want GWB to be able to sue Truthers- but again, this is a separate question.)

Have a look at PolitiFact, and let me know what the fine or sentence should be for every Pants on Fire.

I could mention that the govt might come up with different results than our center-left friends at PolitiFact, but I won't bother for reasons which should be obvious.

Sigivald said...

The answer: Obviously, yes.

Fraud is meaningful deceit about a commercial transaction, guys. Even lying about a medal when running for office is not a commercial transaction.

And the SVA criminalizes even wearing decorations as part of a costume, not just lying about medals you didn't earn.

"Mere lies" are not fraud. Fraud is not a "mere lie".

Lying about decorations is despicable, and best handled by shaming behavior. The SVA as written is dramatically overbroad and should be struck down. None of the State's business to criminalize even deliberate lying about receipt of a decoration, let alone costume use.

Paul: Pretending to be a cop is illegal because cops have power granted them by the State.

Pretending to a Silver Star or Medal of Honor gives you no power over someone else. It's a claim to respect (from decent folk, at least), but not one of coercive power.

Someone pretending to be a cop can coerce the common man into all sorts of things nobody but a duly invested police officer in legitimate process of his duty can do. That is why it's illegal to pretend to be a cop, for reals.

(And note that unlike the SVA, it's not illegal to dress like a cop as a Halloween costume, or for a film, so long as you don't tell people you're an Actual Police Officer.)

Completely inapplicable.

Chip S. said...

There's no ambiguity in whether someone did or did not receive certain medals for military service. That's about as bright a line as possible. So is pretty much any claim about previous experience.

Consider also how a requirement that factual claims be documented could force a candidate to release information about himself that he otherwise wouldn't (like, say, his academic transcripts). Such a reticent candidate's opponent could make a claim about the guy ("never took an economics course") that would stand unless the candidate demonstrated its falsity. Not unlike the way the birth-certificate issue was resolved.

This doesn't have to be a matter of setting up a tribunal to determine the facts of climate change or tax incidence.

Lawyers seem awfully quick to accept the impossibility of making distinctions that don't seem all that murky.

William said...

Beyond Stolen Valor, there exists the category of Embroidered Valor. Gen. MacArthur realized that there might be something in it for him if he scratched LBJ's back. He awarded LBJ the Silver Star for travelling on one airplane ride that was subject to anti-aircraft fire. Senator McCarthy claimed to have flown 32 combat missions when the real number was about six. Kerry served honorably and bravely, but his duty was not the stuff of legends. Politicians know how to puff themselves. Their war records receive the same spackling and sequins as their voting records.

William said...
This comment has been removed by the author.
Chip S. said...

Completely inapplicable.

Thanks for illustrating the legal distinction between "mere lies" and fraud, but I don't see what that has to do with a law against lying about one's military history. If that behavior clearly constituted fraud then there wouldn't have been a need for a separate law, would there?

Brian O'Connell said...

"...a requirement that factual claims be documented...."

By the govt!? Now you're really off the reservation. :) Who's running this Campaign Documentation Board? Let me guess: 3 Republicans and 3 Democrats. That'll work out.

jimbino said...

WWJD?

He told an even bigger lie and paid with his life. (He's probably spinning in his grave just reading this!)

fleetusa said...

Lying has become so normal in everyday public life that I think this as good a place as any to start redressing it.

Hagar said...

I do not think that Congress should have passed "The Stolen Valor Act," but they could and did.

The 9th Circuit is out of line again.

But one has to wonder what it is with these people insisting on spinning these tales about military service they have not done. Mr. Alvarez is far from a solitary case; there are lots of them, and some are quite prominent people that should be smart enough to realize they would be checked up upon.

Chip S. said...

By the govt!?

Oh, heavens no, we can't have the government in charge of election laws. That would lead to all sorts of mischief. For instance, imagine if the organization that paid for a political ad were required to identify itself at the end of its ad. That could really chill speech.

Sorry, but I can't seem to get all bent out of shape about requiring candidates to provide evidence in support of their advertised assertions of fact about their personal histories. The legal consequence could simply be that the candidate wasn't allowed to continue to advertise a challenged and unsubstantiated factual claim about himself.
Just like he can't run an ad without identifying who's paying for it.

However, you've persuaded me that most of what's wrong with US politics could be fixed by relaxing the "malice" standard for libeling public figures. That would go far toward getting a better class of politician. So to heck with the rest of it.

caplight said...

A guy is sitting in a bar. Has a couple of drinks and starts fabricating his wartime exploits complete with false claims of being decorated. That should be a crime? Seriously?

purpleslog said...

Falsely representing yourself as an US Armed Forces Veteran and as a MoH recipient isn't an everyday white lie. It is the actions of con artist, a flim-flam man, committing a fraud against US citizens and veterans in order to gain respect, privileges, and good will - all of which is has not been earned.

Roger J. said...

I have one rule pertaining to military exploits. when someone tells you they were a ranger or a seal or delta force, suspend all belief immediately. Its gonna be bullshit from there on out. Not that many of the dudes around and most of them dont say very much.

As for claims of valor or gallanry, ask them to show you their dd214s (now available on line)

Buy em a beer, pat em on the ass and tell them to grow up.

Cedarford said...

Sigivald said...
The answer: Obviously, yes.

Fraud is meaningful deceit about a commercial transaction, guys. Even lying about a medal when running for office is not a commercial transaction.
======================
I would say that lying to get something one covets through deception is fraud, not just trying to get money in a "commercial transaction". I believe the line drawn should be "lies done for personal gain and in doing so damaged the interests of other, more truthful citizens" through deception.

Lies that suck up the value of social services obtained fraudulently. Lies by illegals that give them work over competing American applicants. Lies to obtain "minority contracts".

People seek other things than money these days. Especially power, a government office, and an insider track when dealing with elites. Jobs, appointments. Sex - though slightly archaic, we have bigamy laws meant to punish travelling men that lied about their marital status to obtain sex and other favors. We have laws that punish caregivers that attempt to manipulate the elderly to sign over their money and possessions - by end of life Will changes.

Cedarford said...

caplight said...
A guy is sitting in a bar. Has a couple of drinks and starts fabricating his wartime exploits complete with false claims of being decorated. That should be a crime? Seriously?

===============
A different case. Lies to raise reputation with no expectation of getting money or other entitlements through the lie. Not a good thing to do, through, in the presence of REAL Vets who have "extrajudicial means" of dealing with it.

caplight said...

Cedarford
I heartily support the "REAL Vets who have "extrajudicial means" of dealing with it," as you term it. Lesson learned.

NotquiteunBuckley said...

http://www.denverpost.com/news/ci_18538820


Current related OWS news:

"Strandlof's previous military ruse, performed under the name Rick Duncan, ignited the wrath of many veterans, even though he seemed earnest as an outspoken advocate for homeless veterans in Colorado Springs. He didn't appear to profit from his duplicity but was prosecuted under the Stolen Valor Act.

However, a federal judge ruled that the law, which makes it a misdemeanor to lie about receiving military honors, violates free-speech rights. He dismissed Strandlof's case, which stands as a potentially important test of the act's constitutionality and currently awaits a ruling at the appellate level."

wv: honatest That which some fail at more than others though all at times.

NotquiteunBuckley said...

http://blogs.denverpost.com/crime/2011/10/16/fake-vet-resurfaces-as-occupy-denver-protester/2011/

That's what I meant to link. Sad story all around, but interesting as con men sometimes are.

The griftier the better.

Fen said...

There are Lemon Laws that protect people from bad cars.

Not apt. There are two classes of victims here.

1) those that were duped into providing something material to the fraudster

2) those who's acts of valor were stolen.

Its more like Identity Theft:

Fayetteville Observer - Black Hawk Down, based on the Mark Bowden’s book by the same name, was nominated for four Academy Awards, won two and grossed nearly $173 million worldwide after its release in late 2001.

Harris found out about the movie when Ridley Scott, co-producer and director, and his production company started hounding him for his account of the bloody day. But he refused to contribute.

In a bloody scene in the middle of the movie, a young soldier’s leg is blown off, opening his femoral artery. In pain and bleeding heavily, the young man’s strained face relaxes and he dies.

“That would have been me,” Harris said. “I got shot, and cut my femoral artery, but we got out the next morning. I lived, but that wouldn’t have been as good of a story line.”


Except Harris wasnt there. It was a soldier who made the ultimate sacrifice. The least we can do is remember his name... we don't... and we shrug it off when a slimebag like Harris steals his identity?

Stolen Valor Act or roving STA Teams that handle such theft with direct action. Let the perps decide which they prefer.

Fen said...

ah forgot the link:

http://thisainthell.us/blog/?p=25728

Roger J. said...

Fen: here's my thought, and not wanting to put words in Drill SGTs mouth, but he said it best several years ago. When we fight, we dont fight for country, honor or any other abstractions. We fight for the men around us--our comrades in arms. Only they know what we have accomplished and only their approprobation is important. And thats the only thing that is important in my book.

Oh well--times are apparently different. Those who served know who the good guys were; those that didnt only speculate. the medals are immaterial--no one will care when I am dead and gone. If some scumbag wants to claim valor, so be it. They have only themselves to live with.

cubanbob said...

Lie to the FBI, go to jail.
Lie to Congress, go to jail.
Lie to get elected, thats OK.
Am I missing something?

Jim Howard said...
This comment has been removed by the author.
TosaGuy said...

The government awards medals for service, heroism and valor. It also grants Veterans's status and all of the substantial social and financial benefits that comes with that.

The US has come along way since it spit on its veterans. The victims of stolen valor are those who have been duped been unwittingly duped by these scumbags and may now have a diminished loss of respect for true veterans.

TosaGuy said...

The government awards medals for service, heroism and valor. It also grants Veterans's status and all of the substantial social and financial benefits that comes with that.

The US has come along way since it spit on its veterans. The victims of stolen valor are those who have been duped been unwittingly duped by these scumbags and may now have a diminished loss of respect for true veterans.

Jim Howard said...

So do I have the free speech right to claim to be a lawyer?

Stolen Valor directly harms a really significant public interest in maintaining an all volunteer military? Does the first amendment allow fraudulent speech that directly harms the national interest?

I'm retired military, so take that into account.

Still, if it can be a crime to lie about a vegetable, it doesn't seem out of line to me to make it a misdemeanor to wear military uniforms and/or medals that were not earned.

The Drill SGT said...

Roger J,

I said that here, but it was written first by SLA Marshall in "Men Under Fire" in about 1855.

Based on truths that all vets know. We fight for the respect of our peers, our squadies. To not be the weak link. To have it reported home to our wives and Mothers that we weren't cowards.

That Spartan Mom's words to her son:, "come home with this shield, or on ot".

Peter said...

I served two full tours in Viet Nam, plus a little piece of another one. I only did a couple of really hero, er, stupid things and nobody important was watching then. I'm perfectly satified with my three little ribbo9ns. And I haven't worn anything green since.

I am damned pissed at all those Hee-rows out htere. Sen. Harkin. Is it not enough that whenever the Navy asked, he strapped a big ol' bird to his ass and flew it wherever they told him? No, he had to lie. And, please, don't tell me that getting found out is enough, the SOB is still in the Senate.

It's one thing to exagerate a little when tellin' stories in a bar. It's quite another to tell those lies for political gain.

Everyone who ever put on Uncle's suit signed a promissary note for anything up to and including bleeding out while waiting for Dustoff. Most of us managed to slide through driving trucks and bending wrenches. Still, it happened to even the REMFs, a lucky gomer with a rocket or that time in 1968 when rifle squads filled with cooks and bakers, clerks and jerks "climbed the walls of Hue City and killed the gooks."

I was no hero. For a few years, though, I was able to stand with them. The man, and now woman, who lies about military sevice for monatary or political gain is using air that a real hero might someday need.

Fen said...

When we fight, we dont fight for country, honor or any other abstractions. We fight for the men around us--our comrades in arms

And we continue to fight for them even after they die. If our comrade sacrifices himself for us by charging a machine-gun nest, we don't let some scumbag steal his story and make it his own.

Carol_Herman said...

Well, for the good news. Alex Kozinski's opinion FORCED the Supreme's to take the case!

I see a 5 for split decision. With Anthony Kennedy siding with Scalia, Thomas, Roberts, and Alito.

It would be "funny" if Kagan ... to write the opinion on HONESTY being a factor ... made the sixth vote. And, got an opinion out there that might stop people from being scared of her like nobody's business?

You mean you don't think politics is at play? REALLY?