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Volokh Conspiracy often is best read for its comments. As is sometimes the case, they can have the better of the argument than contributors, though others simply go off the rails. It is interesting to read the responses to these people too (and helpful to read the wrong-minded ones) as it was back in the day when I started commenting privately to op-eds, which provided convenient abbreviated summaries of issues of the day. So it went with the "stolen valor act" case that just was heard by the USSC, this time Prof. Volokh supporting criminal penalties for certain categories of speech, certain viewpoints in fact. Contra:
In 2007, Xavier Alvarez of Pomona, Calif., was elected to the board of the Three Valleys Water District. At a board meeting, Alvarez introduced himself by saying: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” Alvarez did not just lie about being a war hero; he lied about many things. His catalog of untruths include playing hockey for the Detroit Red Wings, marrying a Mexican starlet, and rescuing an American ambassador during the Iranian hostage crisis.
Now, out of all the lies he told, one of those is punishable by the Government. Why? Well, because. Because it pisses some people off. But why stop there? What if you falsely claim to be a postman to your friends? What if the government sets up a database of other facts that you shouldn’t contradict?
What if the Government really, really like the Detroit Red Wings?
Look, don’t get me wrong. False statements have (almost) no value. And they can be actionable (see, inter alia, fraud). But America, for lack of a better word, was built on puffery, exaggeration, re-inventing yourself, and, yes, lies.
Prof. Volokh (the USSC link provides his brief) wants to draw the line at knowingly false statements of fact (mistake or satire not the issue here) via neutral laws such as against false statements regarding all medals of honors. This would allegedly get around R.A.V. v. St. Paul, which struck down a hate crime speech law (a law only about cross burning, that is, perhaps like the long ago law about wearing medals, was treated differently later on) that targeted only some types of class based hate. The ACS Blog link above dissents from the "this law is neutral" argument particularly since the law doesn't criminalize false denials. Also, the law narrowly addresses one sort of honor, just like the other law was criticized for targeting only certain types of hate.
Volokh also belittles (contra to a strong concurrence by his former boss, Judge Kozinski) the possibility that a whole list of possible lies might be criminalized. Not likely to happen. Oh? A silly argument by a scholar who is aware of a slew of petty laws out there against speech. This very law is petty, particularly if the thing is interpreted narrowly (as any law targeting speech should be). The very name -- stolen valor? This sounds like the stereotypical primitive who thinks his/her soul is stolen via photographs. What is "stolen" in any real sense by some liar here? If lies of this sort will now be criminally actionable theft, where is the stopping point? There isn't one, so we will have selective prosecution depending on what particular viewpoint we find important at the moment.
If the issue is that it influenced the obtaining of a job or something, that might be different, though a neutral law about lying on a government application can easily apply there. But, this is speech and as the appellate court opinion noted, strict scrutiny should apply unless some exception is involved. Yes, false statements of fact were deemed not by themselves to have constitutional value, but criminalizing them all would be problematic since free speech needs breathing space. Thus, it is hard to claim libel when matters of public importance are at stake, even if the statement is untrue. Judge Kozinksi also noted the importance of personal expression, litigating personal lies could be problematic on that level. The original (Kozinksi concurred on en banc review) appellate court panel noted:
In sum, our review of pertinent case law convinces us that the historical and traditional categories of unprotected false factual speech have thus far included only certain subsets of false factual statements, carefully defined to target behavior that is most properly characterized as fraudulent, dangerous, or injurious conduct, and not as pure speech. We are aware of no authority holding that the government may, through a criminal law, prohibit speech simply because it is knowingly factually false.
Like cases involving animal cruelty and violent video games, this law provides a somewhat novel question that forces the point, a type of "pure" false statement that an overly literal (see the dissent below) application of dicta might be thought to allow. This case is not about lying to a federal agent or as Volokh (with his co-writer) suggests about lying online to talk to a minor about sexual matters.* A special relationship or protecting minors CAN possibly be a compelling state interest. There is no compelling state interest in this case. It is a symbolic piece of legislation to provide a type of shame to those who lie about military records. It is not even about someone who actually was in the military who has some additional responsibility. This interest is not totally trivial, but not enough when speech is involved.
The best case that might be imagined is to think of it as a type of trademark security, though again, not all government honors are so protected even there. It is also a somewhat strange trademark law, even if one argument was made to shoehorn it in. The government is clearly not really relying on that argument. As SCOTUSBlog notes, it will try to uphold the most they can by interpreting it more narrowly than its language suggests. This is common practice. I'll stick with the NYT and others to argue it is not worth the effort and trivial as the case might be on some level, the underlining principle is not. Petty laws targeting speech are not only shallow but set forth dangerous precedents.
I listened to some of the oral arguments and it was somewhat disconcerting to hear the defendant's counsel (who after all won below) sound so disjointed. Judge Kozinski wrote a strong opinion about the troubling nature of the law but for a significant amount of time, you failed to get a sense that much was at stake but general principle. The advocate even made a "concession" that it might not chill any speech. Rather striking. Contrast Judge Kozinski, cited by the LAT:
"Lying about being a military hero is despicable and may have some impact on the government's ability to recruit genuine heroes, but it's hard to understand why it's so much worse than burning an American flag, displaying a profane word in court, rubbing salt into the fresh wounds of the families of fallen war heroes," or other unpopular speech held to have constitutional protection, Kozinski said.
"Some impact" is not a reason to criminalize speech and if other speech or speech-like acts can cause similar harms, why are they not chilled? Santorum, e.g., (h/t TPM) had an ad that mentioned his "Armed Services" experience, alluding to his time on the Armed Services Committee. Arguably, this misleadingly sends the message he was in the armed services. The government would likely argue that the (the literal reach of the statute possibly notwithstanding) that this does not count since he didn't intend to falsely send that message. Is the court of law a place to determine such statements by politicians? Some statement in some media interview or the like? Add this to the "Without the robust protections of the 1st Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship" argument, you had an opening for a strong case against the law. Not quite at the USSC earlier in the week, however.
An appellate court as this case was pending upheld the law and a better case should have been made here, even if one does not think oral argument matter that much. Bottom line, criminal penalties should be used sparingly given "Congress shall make no law." Special interest exceptions need not apply. And, even putting aside that, this is a petty piece of symbolism while more important protections are not provided.
[And Also: Prof. Volokh and some others also do not find much to be upset about in regard to proxy baptisms by Mormons, particularly of Holocaust victims like Anne Frank. To briefly comment, particularly since I'm taking a break from doing so there, I'm inclined to be with those who find it at least somewhat troubling on respect grounds. Since this law is largely about just that, there is a connection. And, here too, the main concern is what should be done, not something that should be legally actionable. The former means a lot more at the end of the day.
I find it troubling that some go on and on about how religion is rubbish, so who cares? I find much religious belief wrong, but I find a disconnect with some who I agree with on other issues when they find it necessary to rub their nose in it. After all, there are quite a few liberals who practice Christianity and other faiths that have beliefs that seem irrational. Why gratuitously take potshots? When they want to remove rights from others, sure, but in general, it seems bad manners. And, the idea of some that even being offended is stupid seems rather much.]
* Any exception to the general prohibition against censorship tends to bring with it problems, underlining the misguided approach by Prof. Volokh here in the pursuit of doctrinal purity.
As someone online for years, I can tell you that even this apparent no-brainer matter is not without complications. For instance, in chatrooms, people often knowingly pretend to be someone else for role playing purposes, including being another sex or age. Criminalizing lying in this context can be problematic, particularly when entrapment is mixed in.