Posted on 01/12/2016 12:08:14 PM PST by Zakeet
“First they are not abridging the content of any speech.”
Yes, they are, the 1st amendment covers all manner of expression, not just verbal speech. Telling people they cannot wear certain things is abridging the content of expression.
“Secondly, the Federal government certainly does have a compelling interest in making it illegal for him to wear the Purple Heart,”
No, it doesn’t, because it must rise to the level of a “crucial” interest rather than simply a “preferred interest”, or it fails the test. Obviously, since we have had a functional state for over 2 centuries without this law, there is no crucial interest here, so it fails that test.
“Undermining the system of military honors does hurt the governments interest.”
Maybe, but that only rises to the level of a “preferred” interest, and state interests that are only “preferred” are insufficient to justify abridging Constitutional protections, because defending Constitutional protections is, in itself, a crucial interest of the state.
“Your view seems to presuppose that there is a certain number of laws against fraud that should be passed and no more”
No, that is incorrect. My point is that, if he truly were committing fraud, as people claim, then he could be charged under the existing laws and proven guilty in a court of law. The fact that people insist a new law needs to be passed just demonstrates that there probably isn’t sufficient evidence to charge them with fraud and prove it in the first place.
In fact, that was the entire purpose of this law, if you go and real the language of it. They attempted to get around the requirements to prove fraud by inventing an entirely new type of crime and pronouncing it equivalent to fraud, in order to skirt 1st amendment protections. Yet, the crime they defined does not resemble fraud, since there is no human victim, and no tangible harm.
Also, after reviewing the text of both the original 2005 Stolen Valor act, and the recent 2012 variant, it seems clear that merely playing dressup is not a violation unless the person is misrepresenting themselves as someone who really did earn those honors. The 2012 variation also requires the bit about tangible gain, but the intent to deceive was already a part of the 2005 bill. So “just playing dress up” is not the issue.
The First Amendment does not mention "crucial interest". And courts are not empowered to change what it says. This test, as you have presented it is ridiculous.
Consider for example, it is not in a "crucial" state interest that a certain person not be murdered. Heck, there are hundreds of millions of people in the US. Sure it would be preferable not to have a certain one be murdered...but hey its not a "crucial state interest".
Thus by the illogic you have been forced to employ in your rationalization of your position, an artist who wanted to freely express themselves in the artistic murder of an individual has a First Amendment right to do so.
Under the clear obvious meaning of the First Amendment though, he would have no right to murder, but would have the right to pontificate that murder should be legal until he is blue in the face.
Similarly he could argue fraud and impersonation of military officers be legal. Likely its not necessarily "crucial" that every form of fraud and such impersination be outlawed.
Nope sorry, murder, impersonating an officer, committing fraud in business, and all kinds of other activities have reasonable reasons for being illegal even if one choses to associate them with speech, it does not make the reason they ought be considered illegal go away. And it is absurd to insist that such reasons somehow rise to the level of what some judge thinks is "crucial" enough. Congress has the job of considering if something is important enough to outlaw. They are only forbidden from abridging content, not forbidden to pass laws against murder and fraud and theft etc even if there is some aspect of the murder fraud or theft that is expressing an opinion in some way.
“The First Amendment does not mention “crucial interest”.”
Well, if you are going to base your arguments simply off the literal text of the 1st Amendment, it just says the state can’t abridge freedom of speech, period. So you’ll have no luck trying to find “wiggle room” to ban stuff like this with that approach, I’m afraid.
“This test, as you have presented it is ridiculous.”
You’re free to believe that, but it’s the law of the land, and that is what the courts base their decisions on.
“Consider for example, it is not in a “crucial” state interest that a certain person not be murdered.”
Murder has nothing to do with speech. The “crucial” state interest is part of a test designed specifically to judge when the state is justified in abridging constitutionally protected freedoms like speech, religion, etc.
“Likely its not necessarily “crucial” that every form of fraud and such impersination be outlawed.”
Fraud is already excluded from free speech protections because of the impact it has on the rights of others. That’s a part of basic rights theory that predates the United States itself. If you don’t already understand that, you are out of your depth.
This is a false dichotomy. Not accepting something ridiculous does not oblige me to accept something else ridiculous simply because you talk as if they are the only two options. Particularly since I explained several times what a more reasonable option was, it shows a complete disregard for being open and honest in this discussion on your behalf.
You’re free to believe that, but it’s the law of the land, and that is what the courts base their decisions on.
Courts are not legislatures and are not empowered to make law. If a court makes a ruling, it is a ruling. If the ruling sets a precedent in a ruling that lesser courts use as a guide, it is a precedent of how to rule on a certain law in a certain kind of case. But if you consider that precedent to be the "law" to bolster the authority of the precedent over the actual law, then you are advocating legislation from the bench.
Your other points are simply repeating arguments that have been well refuted, so I will retire victorious and let you spin.
“This is a false dichotomy.”
No, it’s not. You wanted to ignore all subsequent jurisprudence and simply go off the text of the 1st amendment. You essentially said it yourself here:
“The First Amendment does not mention “crucial interest”. And courts are not empowered to change what it says.”
“Courts are not legislatures and are not empowered to make law.”
No, but they are empowered to rule as to the interpretation of the law, and they have ruled against the interpretations you are arguing for. So in practical reality, the law of the land is based on both what has been legislated and how legislation has been interpreted by the courts. The law of the land is not based in any part on your personal speculations as to how you would like the law to be interpreted, so there really is no need to pay any heed to that.
I did not ask you to ignore all subsequent jurisprudence. I asked you to recognize the different rolls that the legislature and the judicial branch have in regard to law. Specifically that the legislature is tasked with deciding what the law should be, and the Judicial branch is tasked with making rulings on the law in the cases put before them.
The "law of the land" regarding the First Amendment is the First Amendment. Courts are obliged to base their rulings about the First Amendment on the First Amendment. As an aide to accomplish this task, if they find something that is not clear or ambiguous it is reasonable and prudent of them to rule the same way a higher court did on a similar case.
If the court does its job well, then there is no point at which one could reasonably say "this has become a law" based on a court ruling. They can only MAKE law by messing up and NOT FOLLOWING the law.
As for the "crucial state interest" and the "first amendment" being this law of the land, I was curious so I did a google search (quoting each phrase in double quotes, which may not render on FR very well):
"crucial state interest" "first amendment"
And I got all of 9 results. Could you point me to where I can see the foundation of this crucial state interest test we should forevermore see the First Amendment and Federalist Papers through the lens of?
“If the court does its job well, then there is no point at which one could reasonably say “this has become a law” based on a court ruling.”
That’s all fine and dandy in theory, but in practice we all know that is not how things work in this country, or we would not have forced legality of abortions, we wouldn’t have Obamacare redesignated as a tax, etc, etc, ad nauseum. You can wish that things didn’t work the way that they do, but to pretend that they do not is just fantasy.
“Could you point me to where I can see the foundation of this crucial state interest test...”
Certainly, here’s a good summary. To clarify, it is usually referred to as a “compelling state interest”. A “crucial interest” is just the level that the compelling state interest must rise to in order to justify government infringement on a fundamental right.
I have no problem at all with the judicial link you sent. Its not judicial activism or writing laws, its a guideline for interpreting law which is entirely appropriate.
Rather I think you took it out of context. You seem to take it to be a test to determine when the First Amendment's enumerated right to free speech is being violated. Rather it is test of when an exception to what would otherwise be a violation of fundamental right would be appropriate after one has already determined that the rule would violate a fundamental right (or be a rule aimed at a "suspect class") could be allowed to be passed as a law because of a "compelling state interest".
Of course to determine IF the enumerated fundamental right is being violated, the test gives no guidance. Its guidance starts only when you determine that unfortunately such a violation is necessary, and how far it can go...which reasonably boils down to you need a damn good reason, and the law in question should not be any more of a violation than necessary to achieve the purpose.
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