Posted on 03/15/2012 11:24:27 AM PDT by american_steve
While we hold the military’s honor sacred, the government cannot penalize speech, whether true or false, simply because it might harm this honor.
Any law that seeks to protect the government’s reputation runs afoul of the most basic bargain of sovereignty, reflected in our Constitution. James Madison said, “The censorial power is in the people over the Government, and not in the Government over the people.” In this context, it is doubtful that the government can ever be libeled by a citizen, any more than a citizen can libel himself. We don’t let the government sue for libel — only individual officials. And even if the government could be libeled, the First Amendment forbids laws banning speech that challenges or impugns the government’s reputation.
The 2006 Stolen Valor Act, which makes it a crime to falsely hold oneself as the recipient of military decorations, is challenging these precepts anew. Unfortunately, if the recent oral argument at the Supreme Court is a guide, the basis of the law’s unconstitutionality is being misconstrued and the act might survive.
(Excerpt) Read more at washingtonpost.com ...
Merely claiming military service and/or awards of same in and of itself is not a crime - its free speech. I am not including the actual act of wearing awards, medals, or uniforms.
Getting caught in this type of lie deserves all the shame and embarassment that comes with the exposure.
However, if one claims military service/awards and then actually receives some kind of benefit from the lie[s] is fraud. As is wearing the awards/medals/uniform.
This is what should be a crime and ruled constitutional.
What is a fictional book, movie or television show but lies that are protected by the 1st Amendment?
Lying, in and of itself, is not illegal and I challenge you to produce an example where it is.
Fraud is a crime committed against another individual in order to steal their property. Perjury is lying under oath in a court of law.
If I go fishing and then tell my friends about the 'one that got away', I may be lying, but I am breaking no laws. If I write a book about the 'one that got away', it is a lie that is protected speech.
"Man, I had a 6-foot Marlin on the hook and the line snapped. It was a world-record catch."
Both are lies. Which should we prosecute? Why should we prosecute the first one and not the second one, too?
You say, "Fraud is a crime committed against another individual in order to steal their property." Actually, most fraud statutes I'm familiar with use verbiage along the lines of "something of value." For example, slander and libel are a form of fraudulent assertion that need not necessarily deprive one of property, but only besmirch or damage the reputation of another person . Perjury, as you point out, is lying under certain specific conditions.
Both crimes (and civil torts in the case of slander and libel) demonstrate simply that not all lies are protected speech. Perjury demonstrates that lies can be criminalized when they threaten the sanctity of a legal process and potentially victimize a party in a court of law. I would argue that "Stolen Valor" lies similarly victimize a class of persons in much the same way the passer of a counterfeit $20 bill victimizes every holder of a legitimately obtained, genuine $20 bill. The "honor" of a certain military award may not be quantifiable in monetary terms, but it is no less a thing of value than a person's reputation or good name. Moreover, to falsely claim say a Bronze Star, is to falsely assert an awards process that includes the generation of official documents. If one were to forge those documents there's no question that is not protected speech, even if one did not use the document to obtain "a thing of value". Falsely wearing or claiming the award falsely presupposes the existence of said documents, and in that regards is no different than generating the fake documents that support the issuance of that award.
SCOTUS says .... Holland v. McGinnis among others.
I still think it's wrong.
Sure. But it still does nothing to further your argument that simply lying about military service or medals should be criminalized.
I would argue that "Stolen Valor" lies similarly victimize a class of persons in much the same way the passer of a counterfeit $20 bill victimizes every holder of a legitimately obtained, genuine $20 bill.
I disagree. If the bank finds that a customer has given them a bad note, they do not stop accepting $20 notes from everyone. So, the value of my legitimate $20 note retains the same value after the discovery of a bad note as it had before. Therefore, I have not been harmed.
If someone lies about serving in the Coast Guard, it does nothing to lessen the service I provided.
Do you honestly believe that people falsely claiming military services was such a big problem that we needed a new federal law to address it?
If someone is misrepresenting themselves to defraud someone else, why aren't existing fraud laws good enough?
If someone is defaming or libeling you, can't you already sue under defamation or libel laws?
Similarly, if someone is committing perjury by claiming under oath to have received a medal, why aren't existing perjury laws good enough to prosecute?
IMO, we shoudn't jail people for lying about the 'one that got away'. As I wrote, lying, in and of itself, is harmless. It is the lies that harm that should be criminalized, and not too surprisingly, they are already against the law.
So, if I wear some BDU pants, I should be arrested and convicted under this act?
How about if I wear the BDU pants and blouse?
BDU pants, blouse and hat?
BDU pants, blouse, hat and boots?
Where do you draw the line?
Why should lying about military service be criminalized but lying about the 'big one that got away' be legal?
Shouldn't all lying about everything, including your height or weight, be punishable under the law? If not, why not?P
The last thing we need are more laws; especially when you look at the present ruling class - why would you want to give them the general authority to punish lying:
“Citizen, we hear you’ve been lying about the settled science of global warming; we need you to come down to the station and answer a few questions.”
But if they find the guy who passed them the note, they prosecute him.
"So, the value of my legitimate $20 note retains the same value after the discovery of a bad note as it had before. Therefore, I have not been harmed."
Key words: "...after the discovery..." Every bad $20 floating around out there devalues, and therefore victimizes the holders of genuine $20's. In the case of a single $20 note, its an infinitesimally small lessening of value, but it diminishes the value nonetheless. Similarly, an awardee of a Navy Cross has been duly recognized for his service. While the value of that recognition can't necessarily be quantified in monetary terms, the just recognition he receives is lessened when you have 50 other people running around claiming the same recognition.
"If someone lies about serving in the Coast Guard, it does nothing to lessen the service I provided."
Of course not, but it lowers the value of your service in the eyes of others. Maybe not to a huge or perceptible degree, but if everybody else in your town was running around saying they were a Coastie, the recognition you were due, and have earned would be undermined. Keep in mind also, that the SVA is not for lies about service per se but about lies about the receipt of specific awards, recognizing specific acts.
"Do you honestly believe that people falsely claiming military services was such a big problem that we needed a new federal law to address it?"
Yes. If you look at it from the opposite end of the question, do you think the military should recognize valorous acts with awards? If your answer is, "yes", that begs the question, "Why?" Once you've answered that question to yourself take the allowance to its extremes...either give every American an MOH to wear around town, or simply have the military do away with giving awards for valorous service. One undermines the recognition bestowed by a grateful nation upon a select few, and the other adversely impacts the morale and motivation of the armed forces as a whole.
"If someone is misrepresenting themselves to defraud someone else, why aren't existing fraud laws good enough?"
Because most fraud laws as written require an overt act to obtain a thing of value expressed in some monetary amount. As I stated earlier, there are things "of value" (i.e. reputation, liberty, etc.) that can not always be quantified in those terms. Our legal system in general, recognizes that there are things of value that can't be quantified as such, but most fraud laws don't measure or encompass them.
"If someone is defaming or libeling you, can't you already sue under defamation or libel laws?"
Those laws typically require a specific victim. Stolen Valor Act offenders victimize a general class.
"Similarly, if someone is committing perjury by claiming under oath to have received a medal, why aren't existing perjury laws good enough to prosecute?"
Provided that the lie is materiel to the case, the perjury accounts only for the victimization perpetrated upon the court. If however, say that (false) testimony is given about an award as a matter of mitigation for a defendent or to bolster the credibility of a witness, both the community at large, and the legitimate holders of that award are victimized by the cheapening of recognition due to recipients of that award.
"IMO, we shoudn't jail people for lying about the 'one that got away'."
And I agree with you. If however, you tell the warden you have a fishing license, you better damn well have the paperwork to back it up.
"As I wrote, lying, in and of itself, is harmless. It is the lies that harm that should be criminalized, and not too surprisingly, they are already against the law."
And there have long been laws against false claims of the MOH. All that Stolen Valor did was expand the law to protect recipients of lower precedence awards.
Suppose a corrupt cop in a small town with one intersection lets his buddies and the city fathers run the one stop light with impunity, but if he doesn't like you, or God forbid, you show up with out of state plates, you're going to get a ticket even if you came to a complete stop.
That does nothing to support the contention that stop lights at intersections are a bad idea. Even the most just, righteous laws can be poorly or abusively enforced. That doesn't mean we need to, or should, do away with them, just the corrupt enforcers.
I knew a guy in Chicago who passed himself off as a Viet Vet, and actually did a lot of passionate work on veterans’ behalf and then it turned out he had never served at all.
Are people's lives so miserable that they glom on to veterans status because they otherwise think of themselves as unacceptable human beings?
I don't get this. In my state, you can get a “Vietnam veteran” plate if you were in the service during those years, even if you were never in-country. I intentionally got the “honorably discharged vet” instead, because I thought it presumptuous to put “Viet vet” on my plate when the closest I got to Vietnam in those years was Texas.
That seems like the opposite sentiment from that of the Founders’ when drafting the Constitution. They created a system of checks and balances to protect the nation even when corrupt enforcers were in charge. Of course it’s quite easy - just to assume that you can put the right people in charge and everything will turn out ok; but that won’t happen, from time to time corrupt enforcers will find their way into power, which is exactly the time that the theory of limited government is intended to take over and prevent them from causing inordinate damage.
We know that when leftists are in power they’ll do everything in their power to expand the scope of the state. One would hope that when right-wingers had the opportunity they would use their power to limit that scope - you might actually have a level of equilibrium. Leftists come into power and write pages of new, unnecessary laws; rightists come into power rescind them all. If only.
There is good legislation, and bad legislation, and unfortunately there is far too little of the former and far too much of the latter, so much so that many of us on the right are prone to knee-jerk reactions to repeal any law we can so that the left doesn't get the opportunity to abuse it.
With respect to the SVA, the system of checks and balances is working. It was passed by a popularly elected legislature, signed by a President elected by the electoral college, was struck down in a lower court and is now under appeal at the SCOTUS.
Yes its easy to say we should just strike down any law we can because the left may expand and abuse their enforcement powers, and there's much bad legislation on which I heartily agree with that. However, we need to be very careful good laws don't get thrown out with that bathwater, because the left has bigger designs on the culture, and undermining the credibility and respectability of the military is one of those objectives.
By cheapening the recognition of meritorious service and damaging the respect due those who have honorably served this nation, their ends are furthered. This law inhibits their ability to do that.
One thing is that it’s becoming very easy to check claims. If you walk into a bar claiming to be a Medal of Honor winner, someone can pull out a smart phone and figure out if you are telling the truth in about three minutes.
One guy told me how he won a major award in the Grenada operation. It took me about five minutes after I got home to find out he was full of it.
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