A pretty poor argument (see p. 6), it seems to me — the law applies to speech of a certain content, and is justified by a worry that the content of the speech will mislead people.
I’ve argued that the ban is constitutionally permissible, because it fits within the knowingly-false-statements-of-fact exception to First Amendment protection. But it is definitely not content-neutral.
Houston Lawyer says:
Unless someone is defrauded somehow, I don’t see the logic of prosecuting the types of individuals who make such claims.Seems like a waste of public resources to prosecute.
February 8, 2010, 12:40 pmyankee says:
It seems to you? The government’s argument is an absurd contradiction in terms; why qualify your criticism with weasel words?
February 8, 2010, 12:44 pmAnonsters says:
Well, at least the Obama Administration has been consistent.
They’ve consistently made stupid arguments in any number of cases so far.
February 8, 2010, 12:47 pmalkali says:
Unless someone is defrauded somehow, I don’t see the logic of prosecuting the types of individuals who make such claims.Seems like a waste of public resources to prosecute.
The book “Stolen Valor” is a remarkable piece of ad hoc journalism by a veteran (along with a co-writer) who became interested in the surprisingly pervasive phenomenon of Vietnam-era men misrepresenting their military records. It’s fascinating on its own merits, apart from the substance of the issues presented.
In particular, it is amazing how many con artists claim to be Medal of Honor winners, expecially given that you can look that up on Wikipedia. It’s hard to show fraud based on a false claim of military valor, for lots of reasons (“So you’re saying the stock wouldn’t have tanked if your broker were a Medal of Honor winner?”) so there is some justification in my view for imposing special penalties on people who make such false claims. It would be sort of like the special SEC rule that a seller can’t trumpet the fact that his prospectus was filed with the SEC as a sign of trustworthiness.
February 8, 2010, 1:14 pmGuy says:
Reminds me of the flag desecration cases where the government has argued that the restrictions are content-neutral.
February 8, 2010, 1:15 pmLinkblog » The Volokh Conspiracy says:
[...] “Federal Government Argues that Ban on False Claims of Having Gotten a Military Medal Is “Co… [...]
February 8, 2010, 1:32 pmAndrew says:
I got into a kerfuffle the other day, when I mentioned to an Iraq War veteran that I too am a “veteran.” But I didn’t serve in combat or during any war more momentous than the Grenada thing, so the guy said I shouldn’t call myself a “veteran.” But he allowed as how it’s okay for me to say that I was “in the U.S. Army.” Anyway, the Army was kind enough to give me an Army Achievement Medal, and I don’t take kindly to others falsely claiming such things; so, I’m predisposed to agree that it fits within the knowingly-false-statements-of-fact exception to First Amendment protection, as Professor Volokh suggests.
February 8, 2010, 1:40 pmDavid Schwartz says:
I think their content-neutral argument is going more to the standard of scrutiny that should be applied. They’re trying to argue that it should receive the level of scrutiny that content-neutral regulations get, not that it’s actually content-neutral.
I didn’t see any place you (EV) addressed the level of scrutiny the law should receive. Your argument is quite compelling. However, if the law is subject to strict scrutiny, I don’t see how it can pass given that it has no intent to defraud or even intent to mislead element.
I think it’s also worth pointing out that any false claim to have personally been awarded a military decoration is also a false claim about the government. One is most definitely stating that the government took an action it did not in fact take.
February 8, 2010, 1:46 pmNobody At All says:
Hi Eugene,
Apologies if this is too off-topic (I do not mean to hijack the thread), but I was wondering if you had any thoughts on the recent 10th Circuit decision, Weise v. Casper (no First Amendment violation where plaintiffs were excluded from Presidential speech on private property due to bumper sticker on car in parking lot).
If there are no thoughts, that’s fine; just thought that we would all benefit from them.
(Also, I previously attempted to post this request in a different First Amendment thread; I’m not sure if it was deleted (if so, that’s fine), or if it just didn’t “stick.” Other people that day reported problems posting comments, so I just wanted to try to re-post and see if this request gets through.)
February 8, 2010, 2:07 pmK Dackson says:
Some employers, especially the federal and state governments as well as the post office, give extra “points” to civil service applicants who served in the military.
Other employers may give preference to those who served, or special privliges (i.e., the day off for veteran’s day if not a company holiday).
Wouldn’t a person in either instance be guilty of fraud if they claimed service where none existed? Couldn’t they be fired or convicted of fraud (for a gov’t job)? if their claim proved to be false?
February 8, 2010, 2:11 pmEugene Volokh says:
Yankee: Can you think of any good reason why I might have wanted to put matters the way I did?
David Schwartz: It’s a common misconception that restrictions on First Amendment rights should always be judged under some “level of scrutiny” such as rational basis scrutiny, intermediate scrutiny, or strict scrutiny. Such “levels of scrutiny” are indeed applied to restrictions on speech that is outside the existing First Amendment exceptions. But when speech fits within such an exception, the “levels of scrutiny” approach generally isn’t applicable; rather, for instance, to decide whether a ban on obscenity is constitutional one would follow the elements of the Miller v. California test and not any general “level of scrutiny.”
The trouble with the false statements of fact exception is that (as I note in the brief) its boundaries aren’t entirely well-defined. There has been no case establishing either a “level of scrutiny” (again, in the sense of intermediate scrutiny or some such) nor a clear test for which false statements are prohibitable and which aren’t. It’s clear that strict scrutiny isn’t the proper test, but beyond that things aren’t well-settled, at least in a case such as this one. That’s why my brief focuses instead on comparing and contrasting with the precedents, and in applying the policy arguments that the precedents have accepted.
February 8, 2010, 2:17 pmWhadonna More says:
So when can I expect a law to protect me from not-quite-fraudulent star I had named for my sweetheart? It turns out the the “government registry” holding the star log is the a copyright registration on a book of other idiots’ star names. [disclaimer - I didn't really name any stars, I'm asserting that we don't want laws against every vague harm that's sympathetic].
February 8, 2010, 2:40 pmyankee says:
The alternative would be to say “A pretty poor argument (see p. 6) — the law applies to speech of a certain content, and is justified by a worry that the content of the speech will mislead people.” Adding the “it seems to me” serves to indicate hesitance about the soundness of your opinion. Do you think there are grounds for hesitance? I can’t see why you would given how silly it is to claim that this particular ban is content-neutral.
The only other reason to include the “it seems to me” (at least that I can think of) is to moderate your tone, which I think is excessive in this circumstance. The wording without the “it seems to me” is not particularly harsh and adding “it seems to me” indicates an unwarranted hesitance to many readers (such as myself).
Perhaps you have some other reason I haven’t thought of, but if you really want to indicate hesitance I would be interested in knowing why you’re hesitant.
February 8, 2010, 2:58 pmOwen H. says:
That other vet was wrong, btw.
February 8, 2010, 2:58 pmEugene Volokh says:
Yankee: My view is that in this context (a First Amendment expert criticizing a First Amendment article), moderating one’s tone is actually more effective at persuading readers — but perhaps I’m mistaken.
February 8, 2010, 3:05 pmMark N. says:
Yes, I believe it’s always been illegal as fraud if falsely relied on to procure a benefit. That’s true of many other credentials as well; for example, it’s fraud to apply for a job falsely claiming you have a degree when you don’t, or that you achieved a Boy Scout rank that you did not.
The unusual part here is whether the government may ban this kind of false speech without a showing of fraud. To my knowledge, that’s not the case with the other examples: it’s not illegal per se to claim to have a Bachelors of Physics when you don’t, though it may well constitute fraud depending on where/when/how you claimed it. The government is arguing that “stolen valor” is such an inherently repulsive crime (compared to, say, “stolen academic credentials”) that it should be illegal to even make such false claims in conversations.
February 8, 2010, 3:09 pmRTA says:
Even in the case of someone lying about their credentials I’d imagine it would be difficult to show fraud. I’ve read about several instances in which people who lied about a degree on a job application then went on to serve as an effective and loyal employee for many years until such time as the misrepresentation was discovered. Even if the employer could show it relied on the lie in hiring, the employee’s performance was satisfactory, so there really isn’t any “detrimental” reliance. If they had not been competent, they most likely would have been fired before the lie was uncovered.
My thinking is that if the government intends to set up a system by which certain persons are given military honors and enjoy privileges based on those honors, it should set up a system by which the claims can be proved. Simply criminalizing false statements, without a clear means of verification does not seem like a narrowly tailored approach. It would be like, in the context of the legal drinking age, rather than issuing ID’s, we simply made it a crime to falsely claim you were 21 or over when you were not. It turns every claimant, including those telling the truth, into presumptive criminals, while leaving the “crime” enticingly easy to commit.
February 8, 2010, 4:23 pmAnonsters says:
You are mistaken. This is, after all, the internet. Moderation is for wimps. And we are all internet tough guys.
February 8, 2010, 5:01 pmFederal Government Argues that Ban on False Claims of Having Gotten a Military Medal Is “Content-Neutral” | Liberal Whoppers says:
[...] rest is here: Federal Government Argues that Ban on False Claims of Having Gotten a Military Medal Is “Content-N… [...]
February 8, 2010, 5:33 pmDavid Schwartz says:
EV: You’re right. Now it makes sense. I completely agree with you.
February 8, 2010, 5:58 pmRoscoe says:
First, a lot of guys have hung it all out on the line for a few bits of ribbon, and I don’t have a problem with the Government making sure that only people who actually earned them get to wear them.
Second, I am not a First Amendment lawyer, but I can’t believe that the First Amendment protects knowing false statements of fact. Further, there are lots of areas where false statements are criminalized without the need to show either damages or reliance. If you lie to a federal official who is acting in an official capacity (and in an area within his jurisdiction), for example, you are likely violating 1001 even if he doesn’t believe a word you are saying.
February 8, 2010, 6:33 pmmariner says:
Professor V,
I really appreciate that you take the extra time and effort to explain things so that non-lawyers can understand them, as you did @ 2:17.
February 8, 2010, 6:37 pmPintler says:
“No, dear, those jeans don’t make your derrière look big”
“Of course I’ll respect you in the morning”
“Oh, it’s just what I wanted!”
“The quarter is from the tooth fairy”
The problem then becomes one of line drawing. If it’s a crime to try to impress people at the singles bar by saying I got the Good Conduct Medal (which means I served in the military for three years w/o getting in too much trouble), what about if I falsely say I used to be on the SWAT team, or am that I was agent 008? That I am a company president when in fact I work in the mailroom? That I love puppies? That I’m an Eagle scout?
February 9, 2010, 10:56 amdshoe says:
Pretty weak analysis of what you refer to as the “knowingly-false-statements-of-fact exception to First Amendment protection.” Your brief cites a bunch of cases involving, broadly, instances of fraud and/or false swearing. Intentional misrepresentation which causes injury. Perjury. Breach of a legal duty. Whatever your opinions on the merits of “trade libel,” it is nonetheless an actionable tort involving an element of damages.
Where, by contrast, is the “injury” when someone lies about his military service? What is the source of this legal duty to tell the truth about this one particular matter? Keep in mind, we’re not talking about sworn testimony here. We’re talking about a guy at a bar trying to score by making up war stories.
While veterans are truly deserving of our respect and admiration, they are not entitled to, nor do they require, special protection from dishonest boasting.
February 10, 2010, 4:47 am