Posted on 01/12/2016 12:08:14 PM PST by Zakeet
A federal appeals court on Monday tossed out a veteran's conviction for wearing military medals he didn't earn, saying it was a form of free speech protected by the Constitution.
A specially convened 11-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the First Amendment allows people to wear unearned military honors.
(Excerpt) Read more at foxnews.com ...
Whatever - but right now a bill was introduced by a Democrat to declare anything hateful against mussies as hate speech. So in reply, I’m not worried about your non-conjectures. Sorry.
9th Circuit says it all... this will be overturned by SCOTUS. 99% sure.
“It’s not “speech.” The protected elements of “speech” are the right to voice (or say print or act out) an opinion.”
No, that is untrue. The courts have very clearly ruled that nearly any kind of expression can qualify as “protected speech”, and that the government is especially restricted as to any type of law that limits the content, as opposed to the manner or circumstances of that expression. Unless the speech falls in an unprotected class, such as obscenity, the government must prove a “compelling state interest”, and the law must be written as narrowly as possible to protect that interest while allowing as much expression as possible, or the courts will strike it down.
If what you propose is true, then so-called modern art like “Piss Christ” would not be protected speech, since it voices no opinion, as such art is entirely up to the audience to interpret. Yet that kind of art is very much protected speech.
“This IS fraud for benefit, and the law simply codifies it.”
Again, if it is fraud, then it’s already illegal and you don’t need another law to prosecute it. The only reason I can possibly imagine you would want another law is if you would like to prosecute speech for which you can’t find evidence that meets the legal standard of fraud. You’ve yet to provide any alternative explanation of why you would need another law, if that is not the case.
“PS, Civil War reenactors, Storm Troopers, etc, are not trying to obtain a benefit by fraud.”
That wasn’t my point. I cited those examples to refute your foolish notion that, just because someone goes to great trouble or expense to put together an outfit, they must be hoping to gain a material benefit by doing so. Since there are countless examples of people who go to such lengths to put together outfits who don’t seek that kind of benefit (which you just admitted), your point is refuted.
“Wearers of unearned medals are.”
Then you can prosecute them for fraud, and we don’t need another law.
“The reason that wearing the hard won honors that others have earned and you have not in order to glorify yourself by fooling others is not part of the God-given right to freedom of speech either.”
This is where you went off the rails in your comment. When you say “in order to glorify yourself”, etc, you are ascribing intent to a person’s actions. If that is in fact their intent, and you can prove it, then we already have laws under which they can be prosecuted for that. Thus, the only purpose for these sorts of laws, as far as I can surmise, is if you want to be able to prosecute the act without having to go to the trouble of proving criminal intent.
You are essentially trying to equate the act itself with the underlying criminal intent which may or may not be present. That’s not how our legal system works. You must prove the intent, with evidence, in a court of law. A law that attempts to skirt that requirement, by defining an otherwise constitutionally protected act as possessing, by definition, criminal intent, is simply a means to make an end run around due process protections.
“On the other hand, since fraud and slander are recognized as morally reprehensible and not part of a basic right of free speech of whatever opinion someone has, and thus not to be covered by the First Amendment, then other activity which is reprehensible like wearing medals in the context of stealing valor can not be protected either.”
Another mistake you make here is equating “reprehensible” with “criminal”. They are not equivalent terms. There are all sorts of behaviors which are reprehensible to us that are perfectly legal, so just because something is reprehensible is not, in and of itself, a good argument that it should be criminal. Unless the speech does genuine harm to others (which is the case with libel, fraud, and slander), or restricting it is vital to protect some compelling state interest (laws against disclosing classified information, for example), reprehensible speech is absolutely protected by the law.
“Thus even if the views expressed are morally reprehensible it is still protected, because the content of what opinions one expresses can’t be abridged.”
Now I’m confused, because you said a paragraph earlier that reprehensible activity “can’t be protected”, now you say it is protected.
We’re back to the basic elements of human psychology.
We do thing hoping for reward. Civil War reenactors have their own set of self-defined rewards, but they are not based on fraud, which the wearing of unearned medals is. No one with a well trimmed white beard and dress greys hopes anyone thinks he is Robert E. Lee.
Wearers of unearned medals hope viewers will really think they are valorous veterans, and they hope for a reward from that lie.
yes, it is fraud, but there are numerous types of fraud enumerated and described under the law. Some are more serious than others. For example, uttering a worthless check for $5000 is a more serious crime than a worthless check for $5. Fraud against a senior citizen is a more serious charge than simple fraud, etc.
This law simple defined a fraud under the law, which the America and military-hating San Francisco-based 9th circuit simple didn’t like.
$1.00 says SCOTUS reverses, if the Obama mis-administration pursues the matter with any vigor.
re: “compelling state interest.”
If it may please the Court, I would argue that legitimate recognition of those who have often sacrificed so much for their country, and more importantly, for their fellow citizens constitutes “compelling state interest.”
This is especially true in the case of those who were drafted, who did not want to serve, but did so heroically.
There are three things in play.
First of all there is whether or not a law was passed to make an activity criminal.
Second there is whether the activity is morally reprehensible independent of what the law said. Indeed, as you had pointed out being reprehensible is not exactly the same thing as being criminal.
Thirdly there is whether a law passed in order to stop some activity is an abridgment of the Right of Free Speech, which the Federal government is prohibited from making criminal.
In the context of determining whether or not the act of claiming military honors others have earned but you have not, the fact that it is reprehensible is relevant to determine if it is part of the pre-existing God given right of having one's say. However, being reprehensible speech, although relevant, is not sufficient for it not being protected, since the language in the First Amendment makes it clear that having one's say is protected even if the content of the opinion expressed is deemed reprehensible. In addition to being reprehensible, in order not to be protected, it has to go beyond simply your God given right to have your say (which Congress may not abridge) and be bad in some way it is reasonable to make a law against. Lying about medals is more than having your say, it is stealing valor from those that earned it, and thus its reasonable to have a law against it. Making a law against somebody who does something that is not reprehensible in retaliation of an unpopular opinion (for example attacking the Tea Party with extra IRS attention) is a retaliatory end-run around not being able to tell the Tea Party to shut up, and is inspired by shutting down speech. The tell-tale sign is that there is nothing, beyond the opinion of people that disagree with the Tea Party, to complain about, so its obvious why the law was made and thus a violation of their God given rights. Conversely the medal wearer is not being prosecuted for his opinion, he is being prosecuted for something that is entirely reprehensible apart from whatever his opinions are, expressed or not expressed.
“If it may please the Court, I would argue that legitimate recognition of those who have often sacrificed so much for their country, and more importantly, for their fellow citizens constitutes ‘compelling state interest.’”
Sorry, but that wouldn’t meet the court standards for what a “compelling state interest” is. A compelling state interest must be something that is crucial for the operation of the state, not just something that is preferred. Since the state has gotten along well enough for over 200 years without restricting speech in order to pursue that interest, then it cannot be a crucial interest, only a preferred one.
If it is just a preferred interest, then the state cannot justify abridging constitutional protections to pursue it, because protecting constitutional protections is itself one of the crucial interests of the state, so that takes precedence.
“Wearers of unearned medals hope viewers will really think they are valorous veterans, and they hope for a reward from that lie.”
Again, you’re simply ascribing criminal intent to them, which is fine if you are just expressing a personal opinion, but is completely out of line if you are discussing criminal law. Our constitution requires due process, and due process means that criminal intent must be proven in a court of law, otherwise, they are innocent until proven guilty.
“This law simple defined a fraud under the law”
No, it did not. If you read the law, it does not define a specific act of fraud, because fraud is a crime that requires an actual party to be harmed. What this law attempted to do was simply to equate the act of deception with an act of fraud, and to dance around the need for actual fraudulent harm to another party by claiming that the “the reputation and meaning of such decorations and medals” were the party being harmed.
That isn’t a legally proper case of fraud, as “decorations and medals” are inanimate objects with no rights, who cannot claim to have been wronged by someone’s deception. Fraud is a crime against people, not against inanimate objects, so the law was not written to simply define a special case of fraud with specific penalties. It attempted to define an altogether new crime, pronouncing an act of expression as fraud so that simply proving the act itself would obviate the need to prove harm or criminal intent. Thankfully the courts didn’t fall for it.
My offer of the $1.00 bet is still on the table, and yes, before you might ask, yes, I always argue equity.
:)
First, US Code has been at odds with many parts of the Constitution for decades.
Secondly, and most importantly, the 1st Amendment debates and passage was about the freedom of political, ideological, and theological speech. The misnomer of "separation of State and Church" has always burned my hide, and I'm not a religious person.
However, I would agree with those who say burning the US Flag is an expression of free speech, as abhorrent it is to me. That is a political expression. Political, ideological, and even theological expression was the original INTENT of the FF's. I always go by their intent and not what some judge misinterprets or expands it to fit his/her leanings.
I've forgotten more about the FF's original intent than most people have ever known. Stolen Valor was definitely NOT in their debates nor intent to be included in the 1st Amendment nor anywhere else in the Constitution. Like I said, the expansion and distortion of the Constitution and the Amendments has been an on-going corruption of original intent. Show me where I'm wrong.
Case in point: Do you believe that the FF's would have approved a "tax" on the new Union if they did not buy a private company's product? - think Obamacare. Countless USSC decisions have been contrary to original intent. Yet, because of their decisions, our liberties, values, and and many long established traditions has been distorted or eliminated.
Do you think the FF's believed that killing babies in the womb was a Constitutional right? Don't even start me on the "Pursuit of Happiness" clause in the DOI which isn't even part of the lawful Constitution. Then there is the "Commerce Clause" which is used for every socialist agenda they can think of.
Yes, the Founders provided the avenue to adjust the Constitution as our society needed. Unfortunately, amendments being such a complex process our legislative, executive, AND judicial branches make up powers they were never intended to have as a by-pass.
Apples and oranges. Star Wars and Star Trek are fictional characters. Everyone knows that Civil or Revolutionary War reenactors are playing pretend and that none are trying to claim they are the real thing.
I’m not a Veteran, yet I keep receiving things in the Mail telling me all the wonderful Benefits I can get because I’m a Veteran.
I guess I can take them up on all the Freebies I’m being promised thanks to the 9th Circus.
Where did I say we need a new law? I just want the ORIGINAL INTENT of the CONSTITUTION to still apply, and stolen valor was NOT part of 1st Amendment nor elsewhere in the Constitution. One more time, US Code has distorted original intent.
“Secondly, and most importantly, the 1st Amendment debates and passage was about the freedom of political, ideological, and theological speech.”
No, I’m sorry, but that just isn’t true. The 1st Amendment protects freedom of speech and expression, almost without qualification. The courts have ruled specifically that government cannot restrict the content of that expression unless there is some crucial state interest at stake, such as national security. The government simply has no leg to stand on if it wanted to decide that some speech wasn’t protected because it wasn’t “political, ideological or theological”, because that would be a judgement as to the content of the speech, which would fail a strict scrutiny test.
“Political, ideological, and even theological expression was the original INTENT of the FF’s.”
Prove it, then. If they had intended to limit the freedom in that way, I have no doubt they would have phrased the amendment to specify that, so the onus is on you to demonstrate that this was their only intention for the 1st Amendment speech protections.
“Stolen Valor was definitely NOT in their debates nor intent to be included in the 1st Amendment nor anywhere else in the Constitution.”
Probably because they included blanket protections for speech and expression, so they wouldn’t have had any need to discuss specific circumstances like that.
“Show me where I’m wrong.”
No, you are proposing that the plain language of the Constitution shouldn’t mean what it says, and that centuries of jurisprudence are wrong, so the onus is on you to prove your contention.
Your other questions about original intent are irrelevant, because you have yet to demonstrate that the founders’ original intent for freedom of speech and expression was indeed as limited as you propose. You can’t simply assert “that wasn’t their intent”, you must demonstrate it.
“Where did I say we need a new law?”
Right here:
“If we ever needed another Fedgov law, this is one I would agree with.”
You missed my point. I was refuting the contention of the poster that:
“The wearer would not go to the trouble of buying and wearing medals not earned if they did not expect something in return.”
As people go to the trouble of buying and wearing all manner of outfits, for various reasons, when they do not expect anything in return, that statement made a conclusion that wasn’t logically supported.
First they are not abridging the content of any speech. The medal wearer is free to say whatever he wants. If his opinion is that he should be allowed to wear a purple heart, he can pontificate till he is blue in the face about why he should be allowed to wear a purple heart.
Secondly, the Federal government certainly does have a compelling interest in making it illegal for him to wear the Purple Heart, as the Executive Branch is charged with running the military, including the administration of military honors. Undermining the system of military honors does hurt the governments interest.
Thirdly, you keep arguing elsewhere that there are already laws about fraud and that if the person wearing the uniform was committing fraud, he should be charged with fraud rather than a law specific to the fraudulent wearing of medals. Your view seems to presuppose that there is a certain number of laws against fraud that should be passed and no more. This makes no sense and is silly.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.