Friday, July 13, 2012


Free speech for lies?

So the  Supreme Court seems to have decided when it struck down the Stolen Valor Act

The act reads (in part), “Whoever falsely represents himself, 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.” An enhanced penalty is provided for falsely representing oneself as a Medal of Honor winner, which is what Xavier Alvarez did when he introduced himself as a new member of the Three Valleys Municipal Water District Board in Claremont, Calif.

Convicted under the statute, Alvarez appealed, arguing that his First Amendment rights were violated when he was prosecuted for knowingly making a false statement. The plurality opinion (written by Justice Anthony Kennedy) agrees, declaring that the category of exceptions to the First Amendment’s general protection of speech does not include false statements. The supporting citation is to New York Times v. Sullivan (1964), in which it is said that because false statements are inevitable in public debate, they must be protected “if there is to be an open and vigorous expression of views.”

Kennedy also points out that in those instances (perjury, fraud, defamation) in which false statements have been criminalized, the statements are part and parcel of a “legally cognizable harm.” In the case of stolen valor, however, there is, Kennedy avers, no such harm; the statute “targets falsity and nothing more” and therefore could be extended to false statements “made to any person, at any time, in any context,” including “personal whispered conversations within a home.”

Source

The verdict is pretty obnoxious but I can see the point of it.  The Act should have included a provision that an offence is committed only when someone gains a significant personal advantage from the lie.

22 comments:

Anonymous said...

any time a Democrat speaks we see 'free speech for lies' in action.

Anonymous said...

Jon, there are already laws on the books for when people lie to you to get "significant personal advantage" in the form of money or services. Those actions fall under the heading "fraud."

However, if you're talking such advantage as may be gained by lying about your past to obtain an edge in an election, you'll never get anything passed against that because most all politicians are conniving, deceitful sons of biatches. It's just "OUR" sobs are better than "THEIR" sobs....

Bird of Paradise said...

To privlaed liberals the U.S. CONSTITUTION pertains to them alone

Anonymous said...

ditto Stan B

A. Levy said...

It's decisions like this that cause many to wonder if the SCOTUS is still relevant. It was created to rise above politics, but that is obviously not possible, so who needs it.

The "last word" should rest with congress. At least we can fire them.

Dman said...

Interpretation of the 1st Ammendment has, IMHO, been perverted over the years from its original intent. I'm going to speculate here, but it seems to me that when the Founding Fathers created the 1st Ammendment, their intended scope was probably fairly limited. In their former countries, saying "the king sucks" (speech), or gathering in groups to say "the king sucks" (assembly)or believing that the king's faith sucked (religion), or publishing that the king sucked (press) was likely to find you in prison or dead. So to prevent this here, the wrote the 1st Ammendment. Those are great protections we enjoy here in the U.S. and I'm thankful for them. But I don't believe they ever intended it to be used as a license to "say what you want when you want." Courts have already stated the same. You can't yell fire in a theater, and you can't commit fraud to obtain goods and services. I think the argument could be made that the Stolen Valor act could be the fraudulent taking of intangible "goodwill" as used in the accounting sense. I'm not proposing that we simply make lying a defacto crime. Way too many complications, there. I simply wanted to table the discussion that we have gone well beyond what the Founding Fathers ever intended.

I also found it interesting that in New York Times v. Sullivan, they said false statements were inevitable in public debate. Well... false subjective statements might be inevitable (Bush hates puppies, Obama is the Anti-Christ), but false facts (I was awarded the Medal of Honor) need not be.

Sorry for the Wall O' Text.

Anonymous said...

"someone gains a significant personal advantage"

That's capitalism, buddy.

Anonymous said...

No, gaining significant personal benefit by lying is fraud, not capitalism.

Anonymous said...

1:58 AM - yes of course that was the original intention of the Founding Fathers - to allow free POLITICAL speech - because in 18th century Europe (and their colonies) it could be punished as "sedition" etc.

Anonymous said...

"No, gaining significant personal benefit by lying is fraud, not capitalism."

That's not what your pal Bernie Madoff says.

Anonymous said...

When I was a Supreme Court Justice, we discussed a case similar to this. That was after I won my Nobel prizes in Physics, Chemistry, and Literature. The problem with the Supreme Court's decision is that it legitimatizes lying about anything. Lie on your resume, it no longer matter. Alverez's lie created creditablity which furthers his position on the board. His lawyers idea that peole didn't believe him is just lawyer talk to defend his client.

Malcolm Smith said...

Dman is probably right. When people talked about "freedom of speech", they were considering the two types of speech essential to democratic life: the conveying of information, and the expression of opinions.
Of course, false statements are bound to turn up in such a milieu, because none of us can be 100% sure that what we are saying is 100% accurate. The courts shouldn't be allowed to fine test such statements. But when somebody says something he must know is an outright lie, I can't see how he can claim immunity.

Dr. No said...

Question:
While on the topic of the First Amendment, and the unlimited protections it affords the press, should those protections continue even when the press crosses the line and become political operatives?

Go Away Bird said...

Obama lies 24/7

Nameless Cynic said...

A few excerpts from the decision.

Absent from these few categories is any general exception for false statements. The Government argues that cases such as Hustler Magazine, Inc., v. Falwell, 485 U. S. 46, 52, support its claim thatfalse statements have no value and hence no First Amendment protection. But all the Government’s quotations derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement. In those decisions the falsity of the speech at issue was not irrelevant to the Court’s analysis, but neither was it determinative. These prior decisions have not confronted ameasure, like the Stolen Valor Act, that targets falsity and nothing more.

...And the pervasiveness of false factual statements provides a weapon to a government broadly empowered to prosecute falsity without more. Those who are unpopular may fear that the government will use that weapon selectively against them.

...Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.

TheOldMan said...

Define "significant personal advantage" and you will go around and around. The 1st Amendment is clear about fed gvmnt censorship.

DALE R. PATTERSON said...

If they had found that you could arrest folks for lying - even in cases like this, the next week all of the Creationists and Global-warming skeptics would have been rounded up...

I'm glad it turned out the way it did!

Anonymous said...

1:34 sure like that would ever happen. They'd have to arrest Owebama first for all his lies that are constantly revealed.

DALE R. PATTERSON said...

The problem, 2:01, is that the definition of "lie" would change with each administration.

And once the folks in power started arresting everyone they thought was "lying", then there'd not be any other administrations.

Anonymous said...

One man's lies are another man's truth. That's what belief and faith will get you.

Anonymous said...

good thing we have freedom of religion in America. We all came escaping the religious persecution of England, yet morons from there still try to persecute.

Anonymous said...

5:19 AM - your comment is stupid!