Is there an exception to First Amendment protection for knowingly (and recklessly) false statements of fact, or are there several narrower exceptions for libel, fraud, and the like? I’ve blogged before about this question (I’m inclined to think the answer is that there’s a general reckless/knowing false statements of fact exception, subject to the limits imposed by R.A.V. v. City of St. Paul, but I’m not sure this is so). There’s now a new opinion, United States v. Strandlof (D. Colo. Dec. 19), in which this question is raised; and the court both lays out the issue well and recognizes that the question is difficult enough to merit more briefing, including amicus briefing. (The case, by the way, involves Rick Strandlof, who — under the name Rick Duncan — claimed to be a wounded and decorated Iraq War veteran, and who tried to use this claim to “rally[] opposition to the Iraq war and support for struggling vets.”)
Here’s the bulk of the opinion:
Defendant is charged with violating the Stolen Valor Act of 2005 (the “Act”), codified at 18 U.S.C. § 704(b) & (d). As originally enacted, section 704 criminalized the wearing, manufacture, or sale of unauthorized military awards. Congress, however, felt that these protections were inadequate to protect “the reputation and meaning of military decorations and medals.” According to one of the bill’s sponsors, “there are some individuals who diminish the accomplishments of [military] award recipients by using medals they have not earned. These imposters use fake medals — or claim to have medals that they have not earned — to gain credibility in their communities. These fraudulent acts can often lead to the perpetration of very serious crimes.”The Act makes it a crime to
falsely represent[] [oneself], verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item …18 U.S.C. § 704(b). Section 704(d) provides enhanced penalties for violations implicating certain types of military honors, including the Purple Heart and the Silver Star. The Amended Information charges defendant with falsely representing himself to have been awarded a Purple Heart on four separate occasions in 2006 and 2009, and falsely representing that he had been awarded a Silver Star on one occasion in 2009. The Amended Information does not charge defendant with wearing unauthorized military decorations or otherwise violating 18 U.S.C. § 704(a), nor does it allege that any third party was actually misled or defrauded by defendant’s misrepresentations.
The express language of the Act, now codified at section 704(b), is markedly different from the language of the original statute, codified at section 704(a). Whereas section 704(a) punishes the act of knowingly wearing, manufacturing, or selling military decorations without authorization, section 704(b) purports to criminalize the mere representation that one has earned such awards. [Footnote: Although the Act prescribes no mens rea requirement, under accepted doctrines of statutory interpretation, one may be implied.] It requires no further action or effect, such as that the falsehood induced reliance thereon or otherwise caused detriment to innocent third parties. Moreover, the penalties imposed by the Act are based clearly on the content of the speaker’s representation, i.e., that one has received the military honors represented by the decorations.
In short, it appears to this court that the Act purports to criminalize pure speech on the basis of its content. A law that imposes a content-based restriction on pure speech generally is subjected to strict scrutiny and cannot stand unless it is narrowly tailed to serve a compelling government interest. A compelling governmental interest is an interest “of the highest order.” Accordingly, the universe of interests sufficiently compelling to justify content-based restrictions on pure speech is extraordinarily limited.
My research has revealed no precedent from any jurisdiction holding that the protection of the honor and reputation of military awards qualifies as a compelling government interest sufficient to justify a content-based regulation of pure speech. Indeed, Supreme Court precedent regarding restrictions on flag burning, a different but not totally unrelated area, would seem to indicate that it does not. See Texas v. Johnson, 491 U.S. 397, 403-07 (1989). At least one federal court has found that the government has a “legitimate” interest in safeguarding the dignity associated with military decorations in connection with the expressive conduct of wearing unauthorized military medals. United States v. McGuinn, 2007 WL 3050502 at *3 (S.D.N.Y. Oct. 18, 2007). [Foonote: However, I am not persuaded that this decision withstands scrutiny in light of Texas v. Johnson.] That decision, however, is of little import here, since regulations that impact expressive conduct, such as flag burning and the wearing of military medals, are typically subject to a more lenient standard, and can be upheld on a less stringent showing of governmental interest, than those that are directed at pure speech. See Johnson, 109 S.Ct. at 2540 (“The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.”). A determination that there is a “legitimate” or “important” government interest in preserving the reputation and dignity of military awards, therefore, does not suggest that such interest necessarily would be found compelling.
On the other hand, it is not readily apparent to this court whether and, if so, to what extent, these precedents apply when the speech complained of is admittedly a false statement of fact, untethered from an expression of an idea or opinion. Defendant relies heavily on New York Times Co. v. Sullivan, 376 U.S. 254 (1964), for the proposition that tolerance of some false speech is required in order to preserve the free exchange of ideas that is the foundation of our democratic society. Yet it is not at all evident how, if at all, that decision, which established standards governing the circumstances under which media outlets may be held civilly liable for defamation, translates to the realm criminal law. Of course, “[f]raudulent misrepresentations can be prohibited and the penal laws used to punish such conduct directly.” Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637-638 (1980). But see United States v. Williams, 553 U.S. 285, __ (2008) (Souter, J., dissenting) (“The fact that fraud is a separate category of speech which independently lacks First Amendment protection changes the analysis … although it does not necessarily dictate the conclusion. The Court has placed limits on the policing of fraud when it cuts too far into other protected speech.”). Yet the Act does not require that anyone be defrauded, misled, or otherwise harmed by the misrepresentation, and the Amended Information does not so charge.
The current briefing attendant to the motion on these issues is inadequate to permit the court to make a well-informed decision. Given the intricacies and foibles of First Amendment law, it would not surprise the court to learn that additional issues and considerations that also should be addressed and analyzed. Thus, I will require the parties to submit supplemental briefing addressing the issues raised herein as well as any others that may be implicated. In addition, I will invite amicus curiae briefs, subject to the requirements and restrictions set forth below.
THEREFORE, IT IS ORDERED as follows:
1. That defendant SHALL FILE a supplemental brief pertinent to his Motion To Dismiss Information [#13] filed December 2, 2009, on or before January 4, 2010;
2. That the government SHALL FILE a supplemental response brief on or before January 11, 2010;
3. That any amicus curiae MAY FILE a motion for leave to file a brief regarding the issues raised by an inherent to the motion by no later than January 11, 2010. Any such motion must: a. State the movant’s identity and interest in the case;
b. Indicate whether the movant supports granting or denying defendant’s motion to dismiss; and
c. Include a proposed brief ….
Gene Madison says:
Doesn’t this make the award a “Title of Nobility” so to speak… If the person is given special consideration because of having claimed to have medals of honor… and with them come certain priviledges… then isn’t that what we are creating, especially having claimed a title to them, when such wasn’t earned?
January 3, 2010, 7:50 pmArthurKirkland says:
“Congress shall make no law . . . abridging the freedom of speech.”
What justifies a first step toward mealy-mouthed interpretation? “No law” is clear as the Liberty Bell.
January 3, 2010, 8:24 pmMalvolio says:
So, counterfeiting should be legal? Extortion? Fraud? Bomb threats? Those crimes often consist solely of speech or writing, why wouldn’t they be covered?
(BTW, the phrase “clear as a bell” refers to the purity of the tone a typical bell makes. The Liberty Bell, whatever its other virtues, would probably make a fuzzy, ragged tone, owing to that big crack.)
January 3, 2010, 8:34 pmArthurKirkland says:
I was referring to the “originalist” version of the Liberty Bell.
Regarding the broader point, it might help some people if they pretended the First Amendment was the Second Amendment, or vice versa. You don’t even need to ignore the militia clause.
January 3, 2010, 8:39 pmOwen H. says:
I can get into a lot of legal trouble were I to claim to be a lawyer. Or any number of other things that are not true, if my intent is to defraud.
January 3, 2010, 8:52 pmRoscoe says:
I can’t see how making false statements of fact in order to obtain some personal advantage is protected by the First Amendment. What if I falsely told a prospective client that I had previously argued a dozen cases before the Supreme Court to secure his business? Lying about having earned decorations for bravery in order to give my statements undeserved credibility does not seem a whole lot different.
January 3, 2010, 8:55 pmGene Madison says:
I think ultimately the question is… does congress have the authority to grant special priviledges that aren’t available to all people as a whole. Can they determine that a person has earned priviledges, and if so.. how far does this power extend?
January 3, 2010, 9:12 pmgwinje says:
Roscoe:
The distinction the court seems to draw is that detrimental reliance is an element of fraud (and most other speech based crimes and causes of action have some harm element), whereas this law punishes the speech regardless of its impact on listeners. Whether or not giving someone undue credibility is a cognizable harm, it’s not a part of the offence.
January 3, 2010, 9:15 pmKen Arromdee says:
From right above:
It requires no further action or effect, such as that the falsehood induced reliance thereon or otherwise caused detriment to innocent third parties.
January 3, 2010, 9:26 pmRoscoe says:
Gwinje: I don’t know about “most,” but a lot of “speech based” crimes don’t require either a showing of harm or any reliance. For example, false statement to a government agency (a felony, btw) only requires a showing of materiality (i.e. was the false statement “important” in the context in which it was made). And if someone commits perjury before the grand jury, it doesn’t matter a bit that nobody believed him.
January 3, 2010, 9:32 pmdrunkdriver says:
Obviously the judge has a problem with the law, but I suspect in the end he’ll have to uphold its constitutionality.
This man, a previously convicted criminal, did real harm to people. A better case for the “absolutists” might be a loser who wears a uniform to a HS reunion. But even there, I don’t see how such lies are entitled to First Amendment protection.
January 3, 2010, 9:50 pmDaniel Schuman says:
Arthur,
There are a number of Constitutionally accepted exceptions for the First Amendment. See this 2009 CRS Report for a good overview. http://www.fas.org/sgp/crs/misc/95-815.pdf
January 3, 2010, 10:02 pmDaniel Schuman says:
For an added bonus, Prof. Volokh is cited by Henry in footnote 31.
January 3, 2010, 10:04 pmHarryEagar says:
So, I can say, ‘Trust me, I’m a doctor’ even though I’m not. Good to know.
January 3, 2010, 10:07 pmSoronel Haetir says:
At least when it comes to counterfeiting I would in fact say it should be legal. The crime should only occur upon the attempt to pass the bills as legal tender, not their production.
January 3, 2010, 10:11 pmgwinje says:
Roscoe:
Although not called “harm,” “materiality” is still a standard based on the impact of the speech, and since the whole point of testimony is reporting the truth, perjury seems to be per se harmful to the judicial process. Even if I’m wrong on that point, I can’t think of a law similarly divorced from result. Here, (for example) is if you tell your wife (who for the sake of argument knows you have no military service) that you have a Purple Heart, you’re technically violating the statute.
January 3, 2010, 10:15 pmih8tofly says:
Was going to link to the same story as you. Remember this recent story as it’s in my neck-of-the-woods.
And since I am also a retired Army soldier, I find it quite repugnant for someone to claim they served in the military when they didn’t, let alone to have been awarded some of the highest honors the Nation can bestow upon one.
January 3, 2010, 10:16 pmSteve2 says:
I’d say that until the 1st Amendment gets replaced with wording that allows for laws abridging such speech, “no law” should indeed be interpreted in mindless, mechanical, absolute manner. We are talking about our nation’s source code, after all: literalism and precision are everything.
January 3, 2010, 10:29 pmFub says:
Since there is no mens rea element, would General Wastemoreland and General Hershey Bar be prosecuted under this statute today?
January 3, 2010, 10:34 pmGuy says:
Of course, the original understanding, if I’m not mistaken, was that the First Amendment only prohibited prior restraint, of which this is not a case. Still, I think punishment for knowingly or recklessly false statements should be limited to cases where there can be shown actual harm to some “victim”, or a per se harm as with perjury, just to stay on the safe side of the law. Since it sounds like the misrepresentation was to aid (noncommercial?) speech that was political in nature, there should be heightened protection on those grounds.
January 3, 2010, 11:04 pmRod says:
I am on the opposite end of the political spectrum from Mr. Kirkland. However, I do believe the constitution means what it says.
I am in agreement that this law is an abridgement of the 1st amendment. I also believe that veterans groups should have every right to tar and feather these lying reprobates on each occasion of their false claims.
Problem solved, no governmental action necessary. (IANAL, when did we lose the right to “tar and feather”? I personally think we need a justification defense to allow this assault where deemed appropriate by a jury of peers.)
January 3, 2010, 11:37 pmJames N. Gibson says:
Just for historical note, there is a precedent towards people falsely claiming military service for financial gain. Years after the revolution, Congress passed a law giving pensions to those men still living who had served. Its through many of these pension records that people today trace their ancestry to patriots.
But if a man, or his family, falsely represented himself as a patriot a significant amount of money could be acquired. Claiming awards that they did not earn would be one method of creating evidence of that service. If they hadn’t stolen the awards or purchased them, then they would have had to make them. In short, other then purchasing, the other two methods are crimes (making an award being forgery).
In the end its because of the value the government places on the issuing of these awards that there is a paper trail on them. When the government passed the volunteer act in 1812 that stated that the men who so served were to receive a musket as a token of their patriotic zeal, there were extensive documentation that accompanied the action. Whether its the issuing of a congressional medal of honor, down to just a service award, there is a paper trail which shows that the man or woman performed that duty or function.
And though the issue being discussed is whether claiming military service if protected by the first amendment, claiming such service for some form of financial gain cannot be protected. And it doesn’t matter whether that gain is financial or political because even the political gain translates eventually into money and position. Thats why military service is very well documented going back almost to the foundation of the nation.
January 3, 2010, 11:49 pmLarryA says:
This one hits home. A couple of years back a guy came to town claiming to be a retired firefighter captain who was at 9/11. He was convincing enough (with photos, documents, etc.) that my reporter wife wrote a story about him for her paper. As I remember he was floating the idea of funding for some kind of memorial.
January 4, 2010, 12:02 amQuestions got raised, and my wife quickly unraveled the story, leading to a retraction by the paper. The guy left town before much damage was done. He didn’t even get tarred and feathered, though there was talk in that direction.
OTOH if every guy who claimed to work for the CIA to impress a sweet young thing got charged…
costly says:
James Gibson,
this is true. In the present case, while the accused may not have obtained government benefits, he may have obtained contributions for his group (who knows what that money was spent on), and exercised an influence in local and even national policymaking- all on the basis of lies. Further, he imposed financial and other costs on legitimate organizations rallying for the same causes, by diverting resources from them. He imposed costs on his allies, who lost credibility and money for their organizations by relying on his false statements. The effort involved in putting on a fraud like this is wasted from the point of view of society; why not ban it?
Moreover, protecting the integrity of claims to military honors is a way to enhance the prestige of military service, now as always a vital component to national security. It is a way to increase the psychic income of military servicemembers.
Although there’s a tension there with prosecuting policymaking based on “lies” (where would that end, if you start down that road?) in this case I view the man’s behavior as a form of political corruption, if not outright theft.
January 4, 2010, 12:10 amRicardo says:
Surely it would be the definition of what exactly “freedom of speech” is, wouldn’t it? There are very few people who would argue that all literal acts of speech are covered by the concept of “freedom of speech.”
But if I understand you correctly, you were making a statement about absolutist interpretations of the constitution rather than pushing a certain interpretation.
January 4, 2010, 12:40 amohgoodgrief says:
Reading an on-line discussion on the 2nd Amendment, it occurred to me that an element seems to be overlooked by legal specialists: Contracts require the parties thereto to derive some benefit. The articles and amendments of the constitution articulate the contract between the federal government and the citizens. The contract expressly binds the federal government to “the rules of the game.” Whether expressly or implicitly, the constitution also binds the citizens to a code of conduct as well. Perhaps the founding fathers and the citizens of the day took it as a given that citizenship imparts duty to one’s fellow citizens and to the country. There was an implicit expectation that at least some people would defend home and homeland, that the citizens would participate in governing themselves, that people had a right to defend themselves, even with firearms (although the 2nd A does not mention firearms). Was it not a given that the amendment meant firearms as well as swords, pikes and bayonets?
Shouldn’t there be a reading of the constitution that takes into account the implicit expectations and obligations of good citizenship as well as the written law?
Understandably, lawyers will quibble. They make their living splitting hairs and finding the tiniest chink in the law in which to insinuate new interpretation. But ordinary citizens know right from wrong, even if they choose wrong. One could argue that not enough emphasis is given to the “common sense” approach to the issues of the day, whether claiming unearned medals, politicians lying about their positions, or lying to a policeman to avoid arrest. Cannot there be an acknowledgment in the law that implicit in the law are the social contracts that enable us to function
January 4, 2010, 1:22 amwhit says:
I once had a guy claim to be a service member who needed gas money to get to base. seriously. i was undercover at the time. he had just driven up in a van, and was obviously lit, so I detained him and called a uniformed cop. he got arrested for DUI. i found it despicable that he was claiming to be a military member AND soliciting money under that. but the fact that he was also impaired by liquor and driving was the kicker. “sure, i’ll give you money to drive drunk to your base, even though you can’t show me your military ID anyway…”
January 4, 2010, 2:12 amDavid Sanger says:
I am not an attorney, but ask, as a hypothetical question unrelated to this specific case, if a person could or should be prosecuted under §704(b) if he/she were found so have made such a claim in a personal diary.
January 4, 2010, 2:14 amDavid Schwartz says:
Obviously, you need to work as a team. Have someone else falsely represent that you were awarded the honors.
January 4, 2010, 2:51 amLior says:
I’m confused by this attempt to enforce simple civility by legal means.
Representing yourself as a veteran (or a decorated veteran) when you aren’t one is immoral. More importantly, it’s rude. However, why should it be a crime? Causing offense should lead to social retaliation. Committing fraud should lead to criminal sanctions.
Should it be a crime to fail to say “good morning” to people you meet on the street?
January 4, 2010, 4:38 amLior says:
@HarryEagar: I don’t think you ending a discussion of Obamacare with “Trust me, I’m a doctor” should be a crime. However, if you actually give medical advice while falsely caliming to be a doctor I suspect you may be guilty of practising medicine without a license [I'm not sure I support that law]. Also, if your advice turns out to be bad you should be guilty of a serious offense and liable for damages.
January 4, 2010, 4:40 amJ. Aldridge says:
No, it was to prevent the common law doctrine of seditious libel so people could freely examine the affairs of government. Cooley effectively shot down the prior restraint explanation by Blackstone over here.
January 4, 2010, 4:50 amPersonFromPorlock says:
And in Urdu, at that.
Sorry, but I have to agree with ArthurKirkland that the First Amendment is very clear: despicable as such speech may be, it is speech and therefore protected. As I’ve said before, much of the law’s complexity comes from government’s trying to have it both ways and this is a good example.
Besides, protecting people from being lied to is blatant paternalism: if we come to depend on government to detect liars for us, how will we deal with politicians? ;^)
January 4, 2010, 7:29 amGuy says:
I love a broad First Amendment as much as anyone else, but if you’re going to insist on being a pure originalist (which I, thankfully, do not), it seems that the “no prior restraint” interpretation is the most supported by the historical evidence. Your link talks a lot about the purpose of the freedom of speech, but not much about its nature. It’s not at all clear the the Alien and Sedition acts were in violation of the First Amendment as understood at the time, some argued that they were, of course, but it was also argued that they weren’t. Had the law gone to the Federalist-dominated Supreme Court of that era, there would have been a good chance of it being upheld (even if we pretend Marbury v. Madison had already been decided). And the common law as explained by Blackstone, as you admit, does not favor your position.
January 4, 2010, 7:35 amSmallholder says:
Didn’t we have a guy on the Volokh Conspiracy a while back who claimed special expertise on torture because he’d gone through SERE training?
January 4, 2010, 8:01 amjccamp says:
I did notice that while Duncan/Strandlof/nom-de-jour was in prison for grand theft and forgery, he sued the prison for denying him hard core porno in his cell, and also for a cool $10 million for serving him saccharine. He also sued to get his job back in the prison library, after he was caught impersonating a lawyer (on-line) from (or in) the prison. His first anti-war efforts proved abortive when those pesky government types busted for renting an Explorer for a week and keeping it (but not paying for it) for months (you know, grand theft auto). Once he assumed the persona of ex-wounded war hero and now anti-war activist Strandlof, he started a charitable foundation, and did considerable fundraising based on his heroic alter ego. The remaining management of the foundation voted to dissolve it as irreparably damaged after Duncan/Strandlof’s arrest, commenting (paraphrased) “We hope he hasn’t stolen money, but we aren’t sure.”
Yeah, this is a freedom of speech issue.
January 4, 2010, 8:21 amMax Hailperin says:
No, that isn’t a better case, because that guy engaged in the expressive conduct of wearing the uniform and medals, rather than merely the pure speech of saying he had earned them.
January 4, 2010, 8:32 amlgm says:
It seems to this non-lawyer that courts should have explored these questions thoroughly in cases relating to fraud and libel. Certainly courts have ruled that government cannot regulate speech that does not result in harm. Then they would have debated what constitutes “harm” in excruciating detail.
For example, were a candidate for mayor to campaign falsely on his military record, he/she might be accused of fraud. But courts have ruled that public misrepresentations of fact like this are protected under the first amendment. (Otherwise there would have been more cases called Bush vs Gore.)
January 4, 2010, 9:41 amAbdul Abulbul Amir says:
So selling the phony bills you made to third parties should be legal? That’s just nuts.
January 4, 2010, 9:45 amTweets that mention The Volokh Conspiracy » Blog Archive » The First Amendment and Knowingly False Statements of Fact -- Topsy.com says:
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January 4, 2010, 10:11 amLou Gots says:
“By such baubles, men are led, ” said Napoleon, who know something about the subject. We miss what this is about is we go about looking for “harm” and “realiance,” and things related to the ordinary law of fraudulent misrespresentation.
Military honors are part of the main reason for the existence of the state, which is war. Misappropriation of those honors attacks us in a way which no matter of mere money may approach.
January 4, 2010, 10:29 amJ. Aldridge says:
What historical evidence is there for a “prior restraint” interpretation? If it really meant something broad like modern day scholars love to give it then all of the past laws of public speech would have been unconstitutional. The record is solid over what the nature, purpose and meaning of freedom speech.
Still no one has yet to make a convincing modern evidence over when and why the Federal Fist Amendment has anything to do with the common man residing within his/her own state. That is a such an im
January 4, 2010, 10:48 amimportant issue for there to be no historical record of the states consenting to giving up its own First Amendment laws over their own citizens. That would had been truly a historical event iof it happened (it didn’t).
ShelbyC says:
I don’t think anybody in 1789 believed “freedom of speech” meant that all acts of speech were protected (or that “freedom of speech” was limited to acts of speech) any more than an “originalist” interpretation means that you have the right to crush somebody in a printing press. Rather I’d imagaine that folks in 1789 (as now) would have understood that speech saying “give me your gold or I’ll kill you” was not protected, but non-speech acts like writing a letter complaining about the government were protected.
January 4, 2010, 11:00 amJ. Aldridge says:
The Democratic-Republican caucus included the following in their 1800 platform:
“An inviolable preservation of the Federal constitution, according to the true sense in which it was adopted by the states. … Freedom of speech and the press; and opposition, therefore, to all violations of the Constitution, to silence, by force, and not by reason, the complaints or criticisms, just or unjust, of our citizens against the conduct of their public agents.”
January 4, 2010, 11:19 amGuy says:
I don’t think we’re communicating well, “no prior restraint” is far narrower than the modern interpretation, in many ways narrower even than yours. It means that the government isn’t allowed to directly censor or prevent speech/publishing so that none may hear or read it, but it doesn’t relieve someone of being held criminally or civilly liable for it after the fact.
January 4, 2010, 11:49 amSW says:
So your argument is that speech that attacks the existence of the State should be outlawed. That’s not a very robust protection for freedom.
January 4, 2010, 11:53 amGuy says:
I know you don’t believe in incorporation, but still, the Fourteenth Amendment. I agree, The Civil War and Reconstruction were truly historical events.
January 4, 2010, 11:58 amPintler says:
704a seems pretty broad. I’m an army brat, and grew up in army brat neighborhoods, and when we played war most of us had uniforms (from the PX; I even remember getting a pair of size 4 or whatever Corcoran jump boots one xmas) on which out mothers would sew the full complement of patches and probably pin on some of Dad’s old marksmanship badges etc. I wore my Dads’s field jacket, with patches, all through high school and college. Even worse, I collected patches (the PX tailor shop happily saved the takeoffs for me, and I went through them looking for ones I didn’t have), and once or twice I wrote some service magazine asking for help identifying them, and would get replies (including offers to buy them from collectors).
704a speaks of ‘except when authorized under regulations made pursuant to law’. Unless those regulations are pretty permissive, I think 704a is likely to be widely violated. Of maybe things have changed; this was in the 60′s and 70′s.
January 4, 2010, 12:00 pmJames T. Carrington says:
What about Captain Crunch?!
January 4, 2010, 12:11 pmDerHahn says:
Pintler, I’m not sure I see how you think what you were doing would be a problem. The statue criminalizes the act of claiming that you were ‘awarded’ the badges and pins you were displaying, not mere possesion.
January 4, 2010, 12:19 pmGuy says:
It’s Cap’n Crunch, make sure to get his rank right.
January 4, 2010, 12:20 pmLou Gots says:
SW: Compelling interest was the test. Holding military honors undiminished is such an interest.
But see the distinction here between an expression of political opinion or exhortation, such as “War should not be the purpose of the state,” or Military honors should not be specially protected,” either of which are properly the subject of the First Amendment, and what we confront here, which is a false statement that “I am entitled to military honors.” The false statement,rather than a political expression, is a verbal act of theft of a property. In this case the property is one in which the state has a compelling interest, less the rewards for valor be cheapened, and the state’s power to wage victorious war be diminished.
January 4, 2010, 12:27 pmJoe says:
Gertz v. Robert Welch noted:
But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust and wide-open” debate on public issues.
But …
Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.”
“Some degree,” however, didn’t translate to absolute protection even here. This included, in an opinion written by Justice Brennan, in the criminal libel context (Garrison v. LA):
The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. Cf. Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 Col.L.Rev. 1085, 1088-1111 (1942). That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which
“are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .”
Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Hence, the knowingly false statement and the false statement made with reckless disregard of the truth do not enjoy constitutional protection.
The idea that the absolute language of the 1A is determinative, when few truly took it totally literally at any point, is very questionable. It surely is not some easy slamdunk argument. “No” means “no” after all, even if children and unwilling listeners are involved. Even Justice Black and Douglas found some limit here — a “brigaded with criminal conduct” rule, e.g., even if that shouldn’t matter if the speech itself is still protected.
The care required in setting forth such limits, however, rightly led to the care shown in by the court here. This includes in determining the “compelling interest” and so forth. The medal context sounds comparable to perhaps a trademark that sets up a special case.
January 4, 2010, 12:36 pmDavid Sanger says:
from Orders and Medals Society of America forum.
January 4, 2010, 12:36 pmMax Hailperin says:
No, as Pintler indicated, he was talking about 704(a), not 704(b). And he was talking about kids wearing badges, not just possessing them. Section 704(a) says that “Whoever knowingly wears … any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces, or the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable imitation thereof, except when authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both.”
January 4, 2010, 12:44 pmDunstan says:
I’m not sure this is any different from criminal prosecutions for trademark infringement/counterfeiting, where it’s my understanding that the same “likelihood of confusion” standard from civil cases is applied. In other words, the government need not show that any one particular purchaser thought he was buying a genuine Rolex; it’s sufficient that the defendant’s fake merchandise was “likely” to confuse the public.
It would be a strange set of values to give Rolex more protection than military honors.
January 4, 2010, 1:40 pmHarryEagar says:
Lou Gots sez: ‘Military honors are part of the main reason for the existence of the state, which is war. Misappropriation of those honors attacks us in a way which no matter of mere money may approach.’
I don’t think I’ve seen you commenting lately, Lou. I don’t 100% agree with that, but you’re on to something. The book ‘Stolen Valor’ seemed to get it about right.
I am a free speech absolutist, but I don’t see this as speech, just theft of intangible goods.
January 4, 2010, 1:42 pmJoe says:
One wrinkle on the literal textual reading is that “no” refers to a certain thing — “freedom of speech” — not all matter of regulation on verbiage or expression. Compare this with certain state constitutions that expressly bar limits on expression as such, which led to courts et. al. to interpret the provision differently.
“Freedom of speech,” for example, implies certain limits, not the “license” to say anything whatsoever.
January 4, 2010, 3:03 pmJames N. Gibson says:
To me the issue is deliberate misrepresentation for personal gain. Thus there is no difference between the 9/11 truthers, the Moon landing hoaxers, the JFK conspiracy types, and yes the Global warming types (for or against). If they are saying something that they know they either can’t prove, or, worse, they know is a lie, they should not be profiting from such speech. And in all the cases I just mentioned they are receiving money from people to continue the “Good Fight.” That money may have been given honestly by the donors, but they were deceived as to the need for it and how it was going to be used by the recipient.
The alternative is the Rosie O’Donnell view that she has the right to call a person anything that comes to her mind and that person has to protect her right to do it. Its the old Quaker philosophy that what they say comes from the spirit within them which is thus god’s words and can’t be challenged. Surprising, as I understand it, when the issue of whether King George could be called a tyrant in the Declaration of Independence (which predates the Constitution) the debate reached a point where Jefferson had it “scratched back in.” Its seems Jefferson didn’t have the right to call the King a tyrant unless he was willing to standup for his view.
January 4, 2010, 4:01 pmSW says:
I don’t think there is any basis in our law that there is a government property interest, here. There is no slander of title or it’s intangible interest because there is no property. If someone can show me a case that the Gov. has property interest in something that’s not property, indeed is imaginary (a made up metal), please give me a cite.
January 4, 2010, 6:58 pmSW says:
As for the trademark interest, I am intrigued, except wouldn’t the Gov. have to trademark it and is that a criminal or civil claim?
January 4, 2010, 7:05 pmG says:
verbally or in writing
Ugh. “orally or in writing”
January 4, 2010, 8:48 pmJ. Aldridge says:
But Congress exercises “prior restraint” all the time. It can make it a crime to talk about overthrowing the government or revealing secrets. You will say there are exceptions to the 1A even though no exceptions can be found written under the 1A.
Why Madison included a First Amendment was to offer absolute proof no power was delegate to the national legislature over the press or speech. And the power restricted was the power to silence critics of government through seditious libel charges.
The 1A would be just as powerful if it did not exist because honest men would never be able to find any national power granted over such activity.
January 4, 2010, 10:20 pmSteve2 says:
I don’t think you parsed that right. “No” refers to “law”, “abridging the freedom of speech, or of the press” also refers to “law”. No is unmodified, therefore it’s unrestricted and is a blanket prohibition on any and all laws of the specified type, which is laws “abridging the freedom of speech, or of the press”. “The freedom of speech, or of the press” is likewise unmodified and unrestricted, therefore it covers all speech and written communication. Thus, the 1st Amendment does expressly forbid “all matter of regulation on verbiage or expression”. To treat it otherwise, though desirable and effective is using an “except” clause that doesn’t exist: it doesn’t say “no law abridging the freedom of speech, except for reasonable restrictions on time, place, and manner” – therefore textually there is (and until a better amendment is passed, can be) no such thing as a Constitutional restriction on time, place, or manner.
January 4, 2010, 10:52 pmTim says:
This is perhaps the most insightfully difficult first amendment issue I’ve ever seen analyzed. Two thumbs up from this vet (who is the recipient of just one medal)!
January 4, 2010, 11:31 pmDavid Schwartz says:
As for the value of knowingly false speech not uttered with the intent to defraud, think about how hard it would be to engage in, say, an hour of heated political debate if you could be put in jail for any intentional falsehood you told, regardless of intent.
January 5, 2010, 9:02 amThe Volokh Conspiracy » Blog Archive » Request for Comments on a Draft Amicus Brief in the Strandlof Stolen Valor Act Case says:
[...] decided to take up the court’s open invitation to file amicus briefs in this case (follow the link if you want more facts); the Rutherford Institute has also apparently decided to [...]
January 10, 2010, 2:04 am