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February 22, 2012

A sentencing spin for constitutional controversy over Stolen Valor Act?

An interesting and potential important First Amendment case is to be argued this morning in the Supreme Court: The Justices will hear oral argument in United States v. Alvarez concerning the constitutionality of the Stolen Valor Act.   Lyle Denniston has previewed Alvarez in this post at SCOTUSblog, which starts this way:

For the past three years, the Supreme Court has been unusually active in deciding cases that might have put some forms of speech or communication entirely outside the shelter of the First Amendment’s free speech clause.  It has refused, each time, to create a new exception. It rejected claims to deny First Amendment protection for depictions of animal cruelty, protests at the site of military funerals, and violent video games.   Though each of those kinds of expression might well offend or even outrage some parts of the public, the Court has been unwilling to allow that reaction to justify new loopholes in the First Amendment.   In the case of United States v. Alvarez, the Court faces a new kind of utterance that can rouse deep emotions, often stirred by patriotic fervor.

The federal government, in the Alvarez case, has insisted that it is not trying to create a new exception — for lying on purpose — because it finds little if any protection in history for intentionally telling a falsehood. The case, though, is shaping up as a test of government power to ban lying, in and of itself.   It might, indeed, require creation by the Court of a new exception to permit a criminal ban on lying — period.   The Court, over the years, has been on both sides of the false statements issue, sometimes saying that such utterances are so lacking in social value as not to qualify as a protected form of speech, and sometimes saying that there are situations in which speaking falsely might have some value worth protecting.

Other forms of intentional lying have been subject to criminal prosecution, or civil lawsuit: some obvious examples are perjury in an official proceeding, defamation or libel, false statements during a government investigation, and statements that amount to fraud. Each of those involves something more than merely speaking, or writing, falsely: there has to be proof that the speaker or writer knew they were lying and intended some harm or consequence that such a law was seeking to avert. But even some of those, such as defamation and libel, do have exceptions that have First Amendment protection.  The Court is now facing where, within the Constitution or beyond it, to place a federal law, which Congress labeled the “Stolen Valor Act.”   It was passed in 2005 and took effect in 2006.

Under that Act, it is a minor crime (a “misdemeanor”) to “falsely represent . . . verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the armed forces of the United States.”   Conviction of the crime can lead to a prison term of up to six months in prison.  If, however, the false claim is that the individual had won the Congressional Medal of Honor, or some other highly prestigious decoration, the prison term can go up to a year.

I can think of lots of ways that a broad ruling in Alvarez could have some (unexpected?) sentencing bite, but I somewhat doubt we will get a broad ruling in Alvarez.  But perhaps someone who has followed this case more closely than I have so far might have special insights as to whether I ought to start paying a lot more attention to this high-profile (and low-impact?) constitutional controversy.

February 22, 2012 at 09:51 AM | Permalink


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Nope, no sentencing spin here. This case presents the binary question of whether the government can or cannot punish bald-faced lies on the subject of military medals. No analog question of how severely it can punish is at issue.

Alvarez got only probation and a fine, BTW.

Posted by: Kent Scheidegger | Feb 22, 2012 12:26:04 PM

Please, give me a break, this should not be there. The guy involved has already been publicly shamed and is in fact now serving a sentence for a real crime. The public shame alone should be more than sufficient for something like this. Start using some common sense and stop wasting the courts time and money with imbecilic issues like this.

Posted by: comment | Feb 22, 2012 1:05:16 PM

my only question is now that the govt is punishing people for lieing! Can we now use the same law against THEM?

Posted by: rodsmith | Feb 22, 2012 2:32:46 PM

Not the same law (unless the government officials lied about medals), but other laws against other kinds of lies can be used. One of the counts in the indictment of John Edwards is lying in his campaign finance disclosures.

Posted by: Kent Scheidegger | Feb 22, 2012 5:06:07 PM

Well - there goes satire.

Posted by: beth | Feb 22, 2012 5:59:00 PM

If it can be a crime to lie about a military medal, it should be a crime to lie about where the President of the United States was born.

Posted by: pantsonfire | Feb 23, 2012 7:25:47 PM

Actually, rodsmith brings out an EXCELLENT point. The case may be "binary" as Kent S. mentioned above, but the subject of the lie may not necessarily be limited to military medals and honors. I can see a GOP operative filing suit against Edwards, for instance, in the aforementioned example, if SCOTUS rules in favor of the state in this case. Certainly, it can be the precedent for many different issues, not just related to politics but to other first amendment issues.

In short, this decision may appear to be focused solely on the military, but may have broad implications down the road in other venues.

I can cite an EXCELLENT analogy: Smith v. Doe, the decision to allow states to maintain public registries for sex offenders. The reasoning was that the registries did NOT inflict damage on the registrant save for showing up on the internet. John Roberts, counsel for the State at the time, argued that since no travel, employment, residency, financial, or technological restrictions existed, the registry was only regulatory, not punitive.

Of course, we all know what's happened since that ruling. That ruling seems placid compared to the current state of registration requirements that encroach on all aspects of RSO's lives.

My point, however, is not to bring up the plight of RSO's regardless how you feel about them. My point is to show how a ruling on an issue can be interpreted as a green light by future lawmakers to react to this ruling in ways not intended by the actual ruling itself. Military valor may be the particular subject at hand, but it certainly is not the only subject that will be affected by the ruling.

Posted by: Eric Knight | Feb 23, 2012 7:26:55 PM

how true eric and let's not forgot the ever popular RICO Act you know that Took the govt JUST HAD TO HAVE to stop the mobsters! which these days is used against EVERYONE BUT THEM!

Now that the govt has been stupid enough to make it a crime to lie! it CAN be applied to them!

Just takes a DA with enough balls to be the first one to file the charges!

Posted by: rodsmith | Feb 24, 2012 1:49:57 AM

Just think we have YEARS of recorded CSPAN covereage to dig through for places they have SHADED the truth!

Posted by: rodsmith | Feb 24, 2012 1:51:20 AM

Ridiculous. Are blue laws coming back?

Posted by: Huh? | Feb 26, 2012 3:24:14 PM

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