Sunday, July 1, 2012

In Another Important Decision Issued Thursday by Supreme Court, They Get It Wrong (Again) on Free Speech

How Can This Many So-Called Constitutional Experts Be So Consistently Wrong

The Supreme Court, lead by the Conservatives and sometimes joined by the more rational members of the Court have ruled on issues of 1st Amendment Rights to Free Speech in a manner that is so wrong it leads one to wonder if they even read the Constitution or know anything about American history.  For example, the Court has ruled that corporations have the same rights to political speech as person and they have ruled that protesters may invade the most private of ceremonies, burial services for fallen soldier to disrupt those services with offensive protests that have nothing to do with the event at hand.

As for restrictions on lying, it is well established that in certain circumstances lying is a criminal act.

            it has long been assumed that the First Amendment is not offended by prominent criminal statutes with no close common-law analog. The most well known of these is probably 18 U. S. C. §1001, which makes it a crime to “knowingly and willfully” make any “materially false, fictitious, or fraudulent statement or representation” in “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” Unlike perjury, §1001 is not limited to statements made under oath or before an official government tribunal. Nor does it require any showing of “pecuniary or property loss to the government.” United States v. Gilliland, 312 U. S. 86, 93(1941) . Instead, the statute is based on the need to protect “agencies from the perversion which might result from the deceptive practices described.” Ibid. (emphasis added).

Now the Court has addressed the issue as to whether or not Congress can make it a criminal act for a person to lie about their military service and claim to have been awarded medals which they were not awarded.  The Stolen Valor Act was designed to prevent this practice and to punish those who engaged in it.  The Supreme Court however believes otherwise, that the right to lie about military honors is protected speech.

Here is the government’s extremely logical and appropriate position.

The Government defends the statute as necessary to preserve the integrity and purpose of the Medal, an integrity and purpose it contends are compromised and frustrated by the false statements the statute prohibits. It argues that false statements “have no First Amendment value in themselves,” and thus “are protected only to the extent needed to avoid chilling fully protected speech.”

But Justice Kennedy, writing for a majority came to another conclusion.  He thinks that by allowing the government to criminalize a lie about military valor this would give the government the power to criminalize all sorts of other lies.

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. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

This reasoning, of course, is absurd.  Government restricts all manners of speech and lies.  One cannot claim that free speech protects a person who is not a police officer from claiming to be one.  Nor does the right of free speech protect perjury, or defamation, or libel or a whole list of other deliberately wrongful use of speech.  A long time ago the Court ruled that the right to free speech does not give one the right to cry ‘Fire’ in a crowded theater.

A person deliberately and falsely claiming military honors defames an entire group of men and women who served honorably and bravely in the military.  The such a person is protected by the First Amendment, whose focus was and is to allow unlimited political speech and opinion is an affront to the Constitution.  Justice Alito’s dissent is eloquent here.  In discussing the opinion he said.

This radical interpretation of the First Amendment is not supported by any precedent of this Court. The lies covered by the Stolen Valor Act have no intrinsic value and thus merit no First Amendment protection unless their prohibition would chill other expression that falls within the Amendment’s scope.

And Justice Alito goes on to show how prohibiting lying about receiving military honors has no impact on protected speech.  Once again the Supreme Court has a chance to get it right on free speech, and once again it gets it wrong.

1 comment:

  1. I applaud the DPE's constancy on the First Amendment, but agree with the Court's decision.

    The problem with the Stolen Valor Act is it criminalizes conduct that does NOT defraud or defame. Lying has to cause actual injury before it can be criminalized. (Insulting groups of people, such as veterans, is not defamation.)

    The decision does not prevent the Act from being written to criminalize conduct that is actually fraudulent or defamatory. The majority was right to err on the side of caution here.