The Medal of Honor, as awarded by the (l-r) Army, Navy and Marine Corps, and the Air Force
This coming Wednesday is George Washington’s 280th birthday. So it’s only fitting that the Supreme Court will be asking on Feb. 22 if lying about military heroics violates the First Amendment’s guarantee of free speech.
This is a tale that pits heroism on the battlefield against the inherent heroism of a law that defends the vile. Good folks on both sides can disagree on which way the scales of justice should tip:
The Pueblo Chieftain, the local paper of Doug and Pam Sterner, key advocates of the law, argues that sometimes free speech needs to be curtailed. “If anything is allowed when it comes to free speech, then everything is allowed,” it maintains in an editorial. “Yet the courts have ruled it’s not an exercise in protected free speech to yell “FIRE!” in a crowded theater. There are limits.”
But Jonathan Turley, a law professor at George Washington University, disagrees in Sunday’s Washington Post. “It can be dangerous to criminalize lies,” he writes. “After all, with the power to punish a lie comes the power to define the truth — a risky occupation for any government.”
Guess that’s what we have a high court for – to decide such messy disputes.
Honor is a big deal in the military. Valor is even bigger. Recognition of such bravery is the high point of many soldiers’ careers. “A soldier will fight long and hard,” Napoleon aptly observed nearly two centuries ago, “for a bit of colored ribbon.”
But what if that bit of colored ribbon is fake? And the person wearing it a fraud? Boasting about such unearned decorations has been a federal crime for the past five years — punishable by up to six months in prison (doubled if you’re fibbing about the Medal of Honor) — until a federal appeals court, ruling the law violates the First Amendment’s right to free speech, threw it out last March (it has long been a federal crime to wear unearned medals; the case before the high court involves speaking – OK, boasting – about decorations never earned).
There are more martial fakes — boasting about military service they have never performed, and medals they have never won — than you might think. For every real Navy SEAL, the FBI has estimated there are 300 imposters. There are twice as many living fake winners of the Medal of Honor as there are genuine ones.
Last month, the 10th U.S. Circuit Court of Appeals in Denver upheld the law, ruling that the First Amendment does not always protect false statements. The case actually before the high court stems from that ruling a year ago by the 9th U.S. Circuit Court of Appeals in Los Angeles that threw out the 2006 Stolen Valor Act. The majority contended that under the First Amendment, we all have a Constitutional right to lie, even about military service we never served, and honors we never earned.
The synopsis of the case, from the 9th Circuit’s majority ruling by Judge Milan Smith, an appointee of George W. Bush:
Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated Director Alvarez introduced himself, stating “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.” With the exception of “I’m still around,” Alvarez’s statement was a series of bizarre lies, and Alvarez was indicted and convicted for falsely claiming that he had been awarded the Medal of Honor.
(NOTE TO FAKE MEDAL WINNERS: Those who earn them don’t talk about them.)
In a concurring opinion, Chief Judge Alex Kozinski, a Reagan appointee, said punishing fake veterans for boasting about their bogus medals would send the nation down a slippery slope:
If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as “I’m working late tonight, hunny,” “I got stuck in traffic” and “I didn’t inhale” could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as “rational basis review.”
Not every judge on the circuit saw such dangers. Seven of the 26 dissented. In his, Judge Diarmuid O’Scannlain, a Reagan appointee, wrote:
…the right to lie is not a fundamental right under the Constitution. For nearly forty years, the Supreme Court has made this much abundantly clear…As an initial matter, most of the “lies” that Chief Judge Kozinski postulates are not false statements of fact whatsoever. They are opinions (“Gee you’ve gotten skinny;” “She’s just a friend;” “I just haven’t met the right woman;” “I’m sooo lucky to have a smart boss like you;” “I had too much to drink;” “You’re the greatest living jurist”); expressions of emotion or sensation (“I love opera;” “But I love you so much;” “It’s not you, it’s me;” “My back hurts;” “I’ve got a headache”); predictions or plans (“[I]t won’t hurt a bit;” “I’ll call you about lunch”); exaggerations (“We go way back”); and playful fancy (“There are eight tiny reindeer on the rooftop”)… Like a Hollywood horror film, Chief Judge Kozinski describes a fictional world that may frighten, but which is far removed from the one in which we actually live.
Bottom line for the high court: should shame and ridicule – and perhaps a well-deserved bloody nose – be the sole punishment for fake battlefield heroes?