The 2-to-1 decision, came in United States v. Alvarez; I think that this is probably not quite right, see this amicus brief I filed in a similar case, though I think the question — what restrictions does the First Amendment impose on laws that restrict knowing lies? — is difficult, and the majority makes a solid argument for its position. I’m not sure whether I’ll have a chance to blog more about this in the next few days, but I thought I’d note the decision.
Note, by the way, that the decision did indeed hold that the Stolen Valor Act is unconstitutional even if limited to knowing falsehoods (a limiting construction that the court could have and should have imposed, if it were sufficient to make the statute constitutional); see PDF pp. 19-20.
ruuffles says:
Thankfully all three judges are either W or HW appointees, otherwise we’d be hearing about how Democratic-appointed judges hate decorated veterans until November.
August 17, 2010, 6:32 pmSteve says:
I think Prof. Volokh got hoisted on his own slippery slope.
August 17, 2010, 6:33 pmMike G in Corvallis says:
Gee, I can hardly wait for them to rule that knowing lies in commercial speech are Constitutionally protected.
August 17, 2010, 6:37 pmnewrouter says:
so is blago’s statements to the fbi constitutionally protected speech?
August 17, 2010, 6:47 pmBill says:
in the universe where this decision is correct, is trademark law constitutional?
(I see at least some conceptual similarities between medals, trademarks, and certification marks as a form of speech. you get them for very different reasons, but IMHO we need some way to protect them, and certain types of fraud are much easier if they are unprotected).
August 17, 2010, 6:47 pmAnton Sirius says:
Instead we’ll just get to hear about how activist judges hate decorated veterans.
August 17, 2010, 6:51 pmCrazyTrain says:
Oh, I hardly think that would stop the usual suspects from saying that.
August 17, 2010, 6:54 pmJohn Thacker says:
Indeed, since the Kelo decision’s majority makeup hardly stopped Howard Dean from blaming it on Republican-appointed justices.
August 17, 2010, 6:57 pmChris Travers says:
Of course that won’t stop anyone from pinning things on the other party.
Remember how horribly Clinton bungled Ruby Ridge?
(In case someone misses the subtext there, it was Bush 41 that bungled Ruby Ridge but that hasn’t stopped folks from blaming it on Clinton, who wasn’t in office yet.)
August 17, 2010, 6:57 pmzippypinhead says:
Two words: certiorari petition.
Although I’m sure somebody will criticize the dissent’s reasoning simply because of the judge’s controversial past, I do think the dissent makes the legally stronger argument here. The Act can fairly easily be construed as implying both scienter and materiality requirements. Frankly, even though the majority purports to distinguish classic fraud cases, it wouldn’t be that hard to apply the majority’s analysis to find that even the Federal mail and wire fraud statutes, 18 U.S.C. §§1341, 1343, are overbroad as written. But the courts have never had much trouble finding those statutes to be Constitutional as written (leaving aside the issue of honest services fraud, of course).
August 17, 2010, 7:06 pmDon de Drain says:
Unfortunately I don’t have time to read the opinion or the dissent right now. I find it very interesting that the majority held that the law would be unconstitutional as applied to a knowing falsehood. The case law involving 18 USC 1001 does not support such a conclusion, much to Scooter Libby’s chagrin. The Supremes ruled for the government a few years back in an 18 USC 1001 case involving an “exculpatory no”. Wish I could remember the name of that case.
August 17, 2010, 7:09 pmzippypinhead says:
Brogan v. United States, 522 U.S. 398 (1998).
August 17, 2010, 7:18 pmArkady says:
I’m curious. Is the term ‘knowing lie’ a legal term of art? I ask because one cannot be held, in the ordinary course of things, to be guilty of lying unless it can be shown that one knows that what one says is false. I can assert P, but if P is false, and I’m ignorant of its falsity, I’m not guilty of lying. I simply mistaken.
Or is the use of the term ‘knowing lie’ simply registering, emphatically, that what is said is a lie? A kind of exclamation point, as it were?
August 17, 2010, 7:22 pmjheath says:
How does this differ from a statute prohibiting impersonating a police officer or a tax auditor? The state holds the power to assign those offices and defend them against impostors. Winning an MoH or other military decoration is a kind of office, an ongoing status, and the state routinely prohibits trespassing on that prerogative. Moreover the gov’t in this case can prove that such awards are like ongoing offices that can be protected, because the Act itself treats them as such. The “Stolen Valor Act” justifies itself legally in the same way as a statute saying you can’t impersonate a state-designated police officer.
Alternately, if a film distributor falsely advertised a movie has having won an Oscar, he’d be answerable to the Motion Picture Academy (I think) as a matter of property rights even long after the grant of the award. Certainly the state maintains that great an interest in military decorations.
What about college degrees? Can UCLA get an injunction against me publicly claiming to be one of their law professors?
August 17, 2010, 7:35 pmbilly q. says:
In any case, I have absolutely no problem with making legislators be more specific.
August 17, 2010, 7:49 pmbilly q. says:
Some senses of “lie” do not entail “knowing.” All senses of “knowing lie” entail “knowing.”
August 17, 2010, 7:52 pmarbitrary aardvark says:
I think this opinion gets it right; that strict scrutiny applies, that the act is facially invalid, that the false statements of fact exception to the first amendment must be read narrowly, especially where as here it’s a criminal prosecution of speech by an elected official, even if the guy’s a “jerk” and “an idiot”.
August 17, 2010, 7:56 pmEugene and I have disagreed before about the scope of the false speech exception. He is both smarter than I am and more expert on the First Amendment, and I did not win those arguments, but here the court articulately says things I was trying to say. This is only a divided panel of the 9th circuit and maybe it’s not the end of the story; I’m not going to predict whether this will go further or how it would turn out on further appeal. Also I admit to not having read the dissent; some confirmation bias at work.
jlowery says:
Definitely agree that this is a tough question. At first glance the decision seems ridiculous, but the more you think about it the more it eludes any easy analysis. Granting the government blanket power to restrict “knowing falsehoods” would impede on a ton of areas that we would consider inviolate. And depending on how you defined a “knowing” falsehood, it could chill a lot of other speech.
But at the same time we have a lot of laws that regulate speech that are primarily based on the falsehood of that speech. Each of those potentially could survive strict scrutiny, but I doubt it. If the solution to “bad speech” is more speech and not prohibiting bad speech, then how could a law targeted at falsehoods survive in any but the most dire and historically important circumstances (e.g., perjury)?
August 17, 2010, 7:57 pmArkady says:
Can you supply examples? Even if I suspect (believe) something to be false, but do not know it to be false, and I assert it with the intention to deceive, I can’t, legitimately, be accused of lying, can I? Deceptive speech, maybe, but not lying.
August 17, 2010, 8:07 pmDilan Esper says:
Interestingly, the opinion quotes the indictment as charging that the defendant falsely represented himself as a “Congressional Medal of Honor” winner. I don’t have any problem with that locution (that’s what lots of people call it), but I know some veterans groups hit the roof whenever someone says that rather than simply “Medal of Honor”. Obviously the DOJ lawyers don’t think that is such a shibboleth.
August 17, 2010, 8:14 pmyankee says:
I think the point of saying “knowing lie” is precisely to avoid debates about whether those sorts of statements constitute “lies.”
August 17, 2010, 9:23 pmDavid Schwartz says:
Suppose I say to you “your wife is cheating on you”. I have no reason to believe that your wife is cheating on you and no reason to believe she isn’t.
By commonsense rules, I lied. When someone says, “your wife is cheating on you”, what every reasonable person concludes they mean is “I have some reason to believe that your wife is cheating on you that justifies you believing that your wife is cheating on you”. If the person knows no such reason, they have lied, that is, they intentionally made a false statement.
Human speech is not a set of logical propositions. When someone says “your wife is cheating on you”, it is not rational to responsd, “interesting, you’ve just uttered a proposition that may or may not be true”. When, under normal circumstances, a person states a proposition, they are vouching for its truth — claiming to know it is true. If they do not know this, and know they do not know it, they are lying.
And this is not by implication. Under normal circumstances, “your wife is cheating on you” *means* “I know your wife is cheating on you”. We simply leave off the words for expediency, not because that’s not what we intend people to understand.
Claiming to know something you do not know, and know you do not know, is lying. Vouching for a proposition is claiming to know it is true.
August 17, 2010, 10:08 pmClint says:
How many clauses are in Prof Volokh’s first sentence? Yeesh.
August 17, 2010, 10:34 pmCareless says:
The government already has the power to do that in some cases. See the earlier mentions of fraud and trademark laws.
August 17, 2010, 10:36 pmsparky says:
So perjury is now protected speach. Isn’t that special.
August 17, 2010, 11:05 pmW.C. Varones says:
This is like flag-burning. Offensive but not a crime.
Call yourself the Queen of England if you like.
August 17, 2010, 11:07 pmStephen Lathrop says:
Dilan Esper, I don’t know what the modern inscription is, but I have a photograph of the Medal of Honor, or Congressional Medal of Honor, awarded to Private Bernard McCarran consequent to his service at Gettysburg in the Civil War. Like a few others, the medal itself was never claimed by anyone, and remains in the national archives. The inscription begins, “The Congress to”, then names the recipient and his unit. Seems like as a matter of history it can’t be far wrong to call it the Congressional Medal of Honor. I have wondered before why there seems to be resistance to doing that. Any info or ideas?
August 17, 2010, 11:15 pmDavid Schwartz says:
Fraud, trademark, and perjury all have elements that are not present here. Fraud has the additional element of the intent to defraud and the intent to have people rely on the falsehood. Trademark is commercial speech. Perjury requires the falsehood to be relevant to an official inquiry with an implied intent to influence the proceedings.
So, I guess the questions are:
1) Do you need an additional element? Or can the government prohibit intentional falsehoods without more? (I think the answer to this clearly must be no — imagine a law that prohibited all intentional falsehoods.)
2) If you need an additional element, is a false claim to have personally received one of a limited set of official commendations a suitable additional element to pass constitutional muster. (I think the answer to this, though not clear, is probably yes. But it’s very close. I guess it depends on how you interpret the law’s implicit scienter requirement.)
I think the most convincing argument against the law is that this law is essentially a law protecting the government from slander. A claim to have received a commendation is a claim that the government did something.
August 17, 2010, 11:19 pmAugustine says:
A lot of colleges prohibit lying to a college official. Is that general prohibition unconstitutional?
August 17, 2010, 11:26 pmI don't know, I wasn't there says:
I think the main way this would come into play is that someone might say they didn’t know their statement (about, e.g., winning a particular medal) was false. It is possible to imagine a situation where someone was put up for an award, maybe everyone thought he got the award, and yet the government records don’t reflect the award for some reason (this is the government after all). That is the most likely scenario I can think they could be referring to with a knowing lie.
August 17, 2010, 11:53 pmSmack says:
No, Not unless the colleges are enforcing this provision under the color of criminal liability. A college, business, business establishment are all allowed to enforce an internal set of restrictions that, if enforced with criminal liability, would otherwise be unconstitutional. However, since their enforcement mechanisms typically just deal with restricting access in some fashion, they are not necessarily protected by the constitution.
In other words, you are comparing apples to oranges.
August 18, 2010, 12:05 amRobbie says:
Nope. Only lies told by the FBI, state and local police are constitutionally protected.
August 18, 2010, 12:09 amWill Allen says:
Could, if this opinion holds, a law be constitutional if, instead of such deception being categorized as criminal, it was categorized as a civil offense, with the penalty being 1 billion dollars, paid to all living Medal of Honor recipients, or 1 billion dollars paid to all living recipients of whatever commendation was falsely claimed to have been received? Under the theory that such false claims do damage to the reputation of people who did receive such honors?
That would seem to narrow the list of potential offenders to Warren Buffett, Bill Gates, Larry Ellison, and a few others. Hell, I think even the Mayor of New York would think twice before uttering a lie which could cause him to write a check that had that many zeros.
August 18, 2010, 12:09 amRobbie says:
Only democrats have the brains to appoint judges who adhere the party philosophy. Stevens, Souter and the Prop 8 Gay Marriage dude were all appointed by Republicans.
August 18, 2010, 12:15 amhtom says:
The name of the award is the “Medal of Honor”. If the citation was to read … Congress awards to __ the Congressional Medal of Honor … that would change things. Congress, in its wisdom, named the official society the Congressional Medal of Honor Society.
I suspect that some of the current hostility about the exactitude of the name is the scarcity of MoH awards to living honorees; whether this is by Congress’s design, or REMF in the Pentagon, or both … there have been far too few such awards in the past decade, compared to the past. Some of the citations for Silver Stars read like actions that would have received either Service Crosses or the MoH when I served (the late 1960s).
It is beyond strange to me (although I’m not a lawyer) that it is a crime for a member, or former member, of the military to falsely claim an award of any sort, but it’s not a crime at all for a civilian. Remember the fuss over Admiral Boorda’s “V” device, that led to his suicide? These are not little things to those in the military.
August 18, 2010, 12:20 amScott says:
So, by the same logic, by commonsense rules, when someone says “God is watching you,” he lied?
August 18, 2010, 12:26 amLying about receiving a medal is protected under the First Amendment | Junior Ganymede says:
[...] So rules the 9th Circuit Court. Quelle surprise. [...]
August 18, 2010, 12:31 ammemomachine says:
Hmmmm.
Wikipedia: Medal of Honor
Interesting.
1. It is “Medal of Honor” because that is the actual title. And yeah veterans can get a bit anal about the title of an award but that comes from being in the military in the first place. You simply wouldn’t believe the massive set of rules in place about what medals/awards can be worn when, how, where on the uniform and with what precedence. Putting a medal or award on a uniform is serious serious business for a veteran. We all remember the very first award received and the time spent carefully placing it on a uniform with a ruler.
Ahhh. Memories.
2. It’s a crime to sell a Medal of Honor:
“In 2003, Edward Fedora and Gisela Fedora were charged with violating 18 U.S.C. § 704(b), Unlawful Sale of a Medal of Honor”
etc etc etc.
…
Frankly people don’t make wild claims about unearned medals to impress some local kids. They do it to get things that they are not entitled to and of which the least is the unearned respect of others. When I read of these dirtbags often times money and gifts are involved. Perhaps fraud is the correct avenue here.
But there really must be a law to prevent this. Every dirtbag that makes these claims is literally stealing the honor of those that fought regardless whether they survived or not. And if the courts refuse to honor this then perhaps there is time for another Constitutional amendment.
August 18, 2010, 12:37 amMichaelW says:
@Chris Travers:
“Of course that won’t stop anyone from pinning things on the other party.
Remember how horribly Clinton bungled Ruby Ridge?
(In case someone misses the subtext there, it was Bush 41 that bungled Ruby Ridge but that hasn’t stopped folks from blaming it on Clinton, who wasn’t in office yet.)”
Cites please. I can find none that support your assertion.
As to the actual post, it seems to me that fraud is fraud. People don’t normally hold themselves out to be someone they’re not (such as, say, an attorney) without the expectation of gain from doing so. If one can be criminally convicted for lying about one’s achieved status in order to get sex (as a specific benefit of that status), it would stand to reason that lying about one’s achieved status to get something else would also carry a penalty.
While I can appreciate that, in the case of rape, the COA and remedy are statutorily prescribed, it seems to me that a cogent argument can be made aligning the situations. Again, because fraud is fraud.
Even so, I am sympathetic to a court’s reluctance to impede on the First Amendment. If only they were as reluctant to impede on the others …
August 18, 2010, 12:51 amStormy Dragon says:
IIRC, ‘knowing’ requires a lesser degree of mens rea than ‘intentional’. The prosecution would only have to show that you knew you were lying, not that you knew you were lying and intended to mislead the person the person you were lying to.
August 18, 2010, 1:23 amSarcastro says:
You didn’t know? Merely being on the 9th Circus makes you liberal!
August 18, 2010, 1:29 amAndrew says:
Statements of fact that are knowingly false and deceptive do not deserve strict scrutiny under the First Amendment, especially in a case like this where the statement is of a variety that may cause actual damage to legitimate recipients of military awards, and to the military generally.
As for the comments above about who appointed Judge Smith and why, perhaps it’s relevant who his brother is, and who his two Senators are. In any event, he has not shown any reluctance to apply the Ted Stevens and Tom Delay treatment against John Ashcroft.
August 18, 2010, 2:11 amPeter says:
A poster called jheath asked why claiming medals one is not entitled to is not the same as impersonating a police officer. The answer is simple. My meager collection of military medals (none for any particular heroism) did not, and never did, compel anyone to behave a certain way. Later in my life I wore a badge and gun to work. Then I had the power to compel, even the power to bash someone with my stick or shoot them. I am, btw, quite pleased that I managed to retire without having to shoot anyone.
That is a big difference. Claiming medals one did not earn compels no one to act under threat of force or arrest. Claiming a badge does.
August 18, 2010, 2:51 amRachel says:
So now lies are protected speech? How far we have fallen in my lifetime. From a great and free country to just another third world **#hold. Thanks to all of you who make it possible. Your grandchildren will pi** on your graves. Gosh, it is even beginning to smell like the third world in here.
August 18, 2010, 5:01 amDennis Nicholls says:
I seem to remember that the Court went to great pains to distinguish between a lie and a false statement back in NY Times v. Sullivan, stating that false statements were consitutionally protected unless the speaker knew they were false or acted with reckessness as to their truth or falsehood.
Of course, some jerk wearing a medal he bought off eBay KNOWS that his action comprises a false statement.
August 18, 2010, 5:06 amDennis Nicholls says:
Interesting hypothetical….
Remember the film Patton? In the opening scene, George C. Scott, portraying General Patton, is wearing a whole chest full of medals from the US and allied powers. Could George C. Scott be prosecuted under the Stolen Valor Act?
August 18, 2010, 5:10 amDon Meaker says:
It is the 9th Circuit Court, but of course there are other reasons to reverse.
August 18, 2010, 6:04 amTolbert says:
Should some knowing falsehoods be constitutionally protected?
Of course! Otherwise what would be your response when your wife asks “Do these pants make my butt look big?”
August 18, 2010, 8:28 amDavid M. Nieporent says:
I don’t think you know what “literally” means. And it seems pretty clear to me that honor cannot be stolen; honor is inherent in one’s actions. It can only be earned or forfeited by the individual in question. Others lying about getting the medal may cause people to treat actual MoH winners with more skepticism, but one would hope that you don’t derive your own honor from what others think of you.
August 18, 2010, 8:30 amjheath says:
That is not a *legal* distinction. I think the gov’t can prohibit you from falsely claiming to be an IRS auditor, or a health inspector, or any other gov’t office *as defined by statute*, regardless of whether guns and sticks are involved. To invalidate such a statute, the courts would have to second-guess the legislature’s judgement as to which offices warrant such protection. If the gov’t wants to criminalize impersonation of an EPA administrative assistant, I suspect it can constitutionally do so.
The question is: can Congress define military decoration as an ongoing status in which it retains an interest, rather than as a one-time event like scoring a touchdown in a long-ago game? Even generals must salute MoH awardees, long after the event. I think the award of a military decoration can be statutorily protected as a kind of “office,” and that the Stolen Valor act could be considered as making that definition.
August 18, 2010, 8:52 amWest says:
Well! That’s a relief. My status of having won 3 medal of honor awards, 12 silver stars and 13 purple hearts in the Spanish-American war were in jeopardy!
Glad all that is cleared up. Thanks, 9th!
Posted by Major-General Awesome
August 18, 2010, 9:50 amHouston Lawyer says:
Sure, the guy is a Turd, but it is very hard to argue that his lies hurt anyone. How many lies did Obama make during and after his presidential campaign? Since the vast majority of lies go unpunished, I don’t see how this one should be singled out.
August 18, 2010, 9:50 amDennis Nicholls says:
The weakest part of Smith’s majority opinion is on page 11868, where he states
Alvarez made his claim at a meeting with a neighboring water board, most likely to receive preferential treatment in water allocation issues. This clearly could be “certain benefits” to which his water board would not normally be entitled.
August 18, 2010, 11:13 amArty Andersen says:
So it’s a crime to wear that “Federal Body Inspector” t-shirt I bought at the boardwalk? Or only to tell the pretty lady at the bar that I’m an IRS auditor when she mentions finding green eyeshades attractive?
Hint – 18 USC 912 says I have to pretend to act under authority of the government. Merely making the claim isn’t punishable. That’s the problem with “Stolen” Valor.
August 18, 2010, 11:18 amClayton says:
That is an interesting point, I think though there is a difference when talking about certifications/degrees/medals and trademarks. Certifications represent (in theory) that a person has accomplished some series of actions (finishing college, fighting a battle, etc.). Trademarks are simply labels for specific products/services.
In short, a certification says “I did this.” a trademark says “I AM this.” This ruling enhances the idea that its legal to lie about what you’ve done (if you do not commit fraud by doing so), but not legal to lie about what you are (again, without committing fraud). This seems consistent with ideas on identity theft.
The best thing about this ruling is that its actually incredibly American to not give military commendations a magical legal standing. It goes right up there with not conferring titles of nobility.
August 18, 2010, 11:49 amRandom Nuclear Strikes » Stupid Judiciary Tricks says:
[...] First, one of their three-panel groups decided that lying about military award and commendations shouldn’t be a crime because the statute violates the liar’s 1st Amendment Rights. [...]
August 18, 2010, 11:52 amClayton says:
I think the judge was referring to actual objective entitlements, not sentimental acts of pity. Regardless of what medals he may or may not have, that has no objective sway on the water-board. However, claiming to be a veteran to the VA or to a private org. which deals with veterans would still be fraud.
People seem to be overlooking the fact that lying about your military achievements to some financial end would still be fraud. Its just not illegal to say you’re a vet when you’re not, just like its not illegal to say you’re a college grad or big in Japan.
August 18, 2010, 11:55 amClayton says:
Generals must salute MoH awardees, is that a law, a policy, or tradition? Just curious.
August 18, 2010, 11:58 amjheath says:
Can Congress prohibit me from claiming to be the ambassador to (or from) France, even if I haven’t falsely negotiated a treaty, but only done 1000 embarrassing things that impair the ability of the real ambassador to act with authority?
Is there a constitutional requirement that limits the statute above to that language? It seems the question should turn on Congress’s power to define what is necessary to protect the authority of a given office that Congress itself created. E.g. can Congress enact a law saying that the MoH bestows a kind of perpetual offical status on the holder, and that false claims of that office trespass on a federal prerogative by cheapening it? The same way the motion picture academy could (I think) get an injunction against a film distributor who cheapened their award by falsely advertising his products as oscar-winners.
August 18, 2010, 12:02 pmshawn says:
Bybee’s overreading of Gertz and its progeny is really troubling. It would be practically impossible and certainly improvident for the Court to declare all falsehoods constitutionally unprotected while ruling on a series of defamation cases. This is law 101, reasons for a holding aren’t the holding.
When Bybee says courts should look to what a prior court said instead of what it meant, he’s advocating ignoring the holding, which necessarily depends on the facts and posture of the case.
His approach is valuable descriptively though: Poor lawyers do see themselves as mere quote-hunters.
August 18, 2010, 1:05 pmDilan Esper says:
On the merits of this thing, I think Bybee is correct about the state of existing law. But I think the majority gets the better of the argument as to where the law should be.
Fundamentally, whether or not you want to say “false speech is protected”, a legal regime where every lie, no matter how trivial or interpersonal, can be made a criminal offense is a regime with very little actual freedom of speech because everyone lies on occasion. So it seems to me that the best control against this is to say that only INJURIOUS falsehoods are unprotected.
The problem is that the Supreme Court has never said this.
August 18, 2010, 1:56 pmArkady says:
That’s interesting David, but misses the mark. Note that under that account, I could be telling the truth, your wife is cheating on you, but still be lying. Whatever we want to say about lying, I’m pretty sure we don’t want to say that telling the truth can constitute lying. Your argument only goes through if we can substitute “I have some reason to believe that your wife is cheating on you that justifies you believing that your wife is cheating on you” for “Your wife is cheating on you.” They’re not substitutable: The first could be false, the second true. Or vice versa.
Moreover, I’m not sure we want to fold the justification for my saying P into the meaning of P, or better, the meaningfulness of P. Sometimes we say things without any justification, that is, without having any reason in mind when we make the utterance. Now it’s certainly the case that when I make an assertion, you are within your rights to ask me why I say that. And I if I cannot summon good reasons, then you can certainly reach for the salt. But you can’t straightaway accuse me of lying.
Finally, you later say:
This is at odds with the first interpretation you offered. We do say, “I have reason to believe…, but I may be wrong.” We don’t say, “I know that…but I may be wrong.”
And we’re back to my original question: Are there any instances of lying that do not involve a statement of something known to be false by the person making the statement?
August 18, 2010, 2:14 pmAJK says:
If you listen to the recording, you’ll find that Alvarez claimed to have received “the Congressional Medal of Honor”. So it seems possible to that’s the reason why it’s described as such on the indictment.
(This raises an interesting question: if we accept that there is no “Congressional Medal of Honor”, would a Medal of Honor recipient be guilty under the statute for describing his award that way? What if he knows the proper title is the Medal of Honor, but insists on inserting the “Congressional” anyway?)
August 18, 2010, 3:30 pmBud Winski says:
Have all 3 judges of the 9th Circuit Court earned a law degree or lied about it?
August 18, 2010, 4:06 pmBud Winski says:
Have all 3 judges earned a law degree or just lied about it?
August 18, 2010, 4:11 pmsubpatre says:
One has to assume it is now Constitutionally protected speech to tell people who have federal cases pending —perhaps a Jaguar© dealer or a particularly attractive woman— that they are talking to Milan D. Smith, Jr., federal judge on the US Court of Appeals for the Ninth Circuit.
So long as the speaker does not intend to fraudulently obtain objects of value from that person, they could let the hearer understand that ‘favors’ to him would make ‘Milan’ look more favorably on a certain side to the case.
Judicial positions are conferred by Congressional acts almost identical to conferring Medal of Honors; and individuals’ personal names are . . . probably the speaker meant Milan Daal Smith, Jr. Etcetera. Nor is there harm; the ‘real’ Judge is protected from attempts at bribery or ex parte badgering and the litigants would have voluntarily participated in an act that was not criminal. Qui pro quo quid pro quo!
August 18, 2010, 5:15 pmStephen Lathrop says:
That confuses honor, the character trait, with honors, which are awards. The Medal of Honor is an award, and someone who claims falsely to have received it ought to be prosecuted for the same reason people who make fake designer handbags are prosecuted. The false claimant is manufacturing a counterfeit Medal of Honor, if only metaphorically. But with honors, the metaphor is the point.
It would be a tawdry society indeed that prosecuted the counterfeiters of consumer goods, and gave license to the counterfeiters of important honors. Our society, apparently.
August 18, 2010, 5:28 pmhtom says:
Someone who stands up in a meeting and claims to have received the MoH … I’d look very suspiciously at. Most of the real winners are very retiring about this, and I find it difficult to believe they would do such a thing in such circumstances.
My understanding is that the “all ranks salute the MoH” is a tradition, not an order, but that could have changed. (Whether it’s the medal or the bearer that’s being saluted, too, is a good question.)
August 18, 2010, 5:30 pmDilan Esper says:
It would be a tawdry society indeed that prosecuted the counterfeiters of consumer goods, and gave license to the counterfeiters of important honors. Our society, apparently.
Here’s the rub, though. In order to have free speech and a free society, you can’t criminalize all lying. You just can’t, because everyone lies and that would allow prosecutors to have an amazing amount of discretion over bringing prosecutions against people.
So there has to be a limiting principle. Saying that lying about matters that cost people money can be prohibited, but lying about your military honors, if it doesn’t cost anyone any money, cannot be, may seem “tawdry” to you, but it supplies that limiting principle.
Further, it also has another benefit. The judicial system, for the most part, should stay out of protecting people’s feelings. People’s feelings aren’t that important anyway, protecting them too easily leads to abuses (see Kathleen Parker’s WaPo column today), and harm to feelings is extremely difficult to measure. I realize that the system does not always follow this ideal– there are torts for emotional distress and defamation and invasion of privacy. But in each case, the doctrines are carefully contained, the damages are limited, and usually you don’t receive much unless you can show more tangible harm than simply hurt feelings.
This law– let’s face it– is not about people defrauding people out of money by lying about their military records. A law prohibiting such conduct is surely constitutional. It’s about hurting the feelings of veterans (and specifically decorated veterans) by making false claims to honors never received. It’s about making those honors feel “cheaper”. This is exactly the sort of thing that the judicial system is absolutely lousy at remedying. Indeed, lots of things besides these lies can make these awards feel “cheapened”. The military giving too many of them out could cheapen them. The sale of replicas on e-bay could cheapen them. The scene in Forrest Gump referenced in the opinion could cheapen it, by promoting the idea to the masses that any idiot could win it.
I’d rather take the risk that some genuine heroes feel slighted than embed in the USDOJ and the judiciary the power to criminalize speech because people’s feelings are hurt.
August 18, 2010, 5:45 pmDilan Esper says:
By the way– a hypothetical for conservative supporters of this law here.
Suppose a law was passed prohibiting people from falsely denying the facts that resulted in the award of combat honors to a servicemember or veteran, and based on that law, the DOJ brought a prosecution against swift boat veterans for making false claims against John Kerry’s service record. Would such a law be constitutional? If not, what is different about that law as opposed to the Stolen Valor Act?
August 18, 2010, 5:48 pmDavid Schwartz says:
No, you cannot be telling the truth and still lying. If you say, “I have reason to believe that your wife is cheating on you that justifies your believing that your wife is cheating on you”, you are lying if you have no such reason.
The words “your wife is cheating on you” mean, more or less, “I have reason to believe that your wife is cheating on you that justifies your believing your wife is cheating on you”. Before you can analyze whether a person is telling the truth or lying you must first analyze what they are saying.
Typically, a person who utters the words “your wife is cheating on you” is saying, more or less, “I have a reason to believe that your wife is cheating on you that I believe justifies your believing she is cheating on you”. The English language simply allows them to omit many of those words, but the meaning is precisely the same.
Such a person is telling the truth if they have such a reason and lying if they don’t.
August 18, 2010, 6:02 pmDavid Schwartz says:
It’s actually very hard to tell. Determining whether someone is telling the truth or lying does not involve a logical analysis of the words he used but involves an analysis of the concept he actually communicated. I don’t think it’s fair to say that “God is watching you” means anything like “I have reason to believe God is watching you that justifies your believing that God is watching you”.
But that kind of makes my point. You can’t analyze whether “God is watching you” is a lie by asking if there really is a God if so who is he watching. You have to look at what people understand “God is watching you” to mean.
People communicate concepts, they don’t state logical propositions.
August 18, 2010, 6:04 pmAndrew says:
By the way– a hypothetical for conservative supporters of this law here.
Dilan Esper asked: “Suppose a law was passed prohibiting people from falsely denying the facts that resulted in the award of combat honors to a servicemember or veteran, and based on that law, the DOJ brought a prosecution against swift boat veterans for making false claims against John Kerry’s service record. Would such a law be constitutional? If not, what is different about that law as opposed to the Stolen Valor Act?”
Slander laws are already on the books, and I don’t see that it makes much difference whether DOJ brings the action instead of Kerry himself. If the lie deliberately and deceptively states false facts (and note that George C. Scott in Patton was not being deceptive) then I don’t see why strict scrutiny is appropriate. I’m not saying that a legislature would be wise to pass such laws, or even that they would survive intermediate scrutiny, but am merely saying that strict scrutiny seems unwarranted here.
August 18, 2010, 7:29 pmAndrew says:
Disregard that first sentence.
August 18, 2010, 7:31 pmDilan Esper says:
Slander laws are already on the books, and I don’t see that it makes much difference whether DOJ brings the action instead of Kerry himself. If the lie deliberately and deceptively states false facts (and note that George C. Scott in Patton was not being deceptive) then I don’t see why strict scrutiny is appropriate.
1. Those are civil torts, not criminal statutes. I want to know if the government can make lying about someone else’s military record a crime.
2. Actually, that slander action, brought by a public figure, would be subject to significant First Amendment limitations under Times v. Sullivan and its progeny.
August 18, 2010, 7:45 pmArkady says:
David, I argued that cannot be the case. You cannot substitute the one for the other, since one can be false and the other true. You ended up just repeating your original argument and didn’t really reply to mine.
August 18, 2010, 7:50 pmArkady says:
Let me generalize that:
If S1 and S2 are meaning equivalent, then it cannot be the case the S1 is true and S2 is false (or vice versa). If they mean the same thing, then they have to share truth or falsity. But in the case you presented, one can be true and the other false, thus they cannot mean the same thing. (This is one reason why we should resist saying the justification for P is part of the meaning of P).
August 18, 2010, 8:02 pmJohn L says:
I don’t see this as such a hard case and on reading Prof Volokh’s brief it seems he doesn’t either. I assume it is libertarian leanings that cause him to qualify in his post the persuasive conclusion in his brief that striking down this law wouldn’t protect anything worth protecting.
What makes it hard for some is that they feel there has to be an all or nothing rule — all knowingly false statements are protected or none are. But as the brief shows it is pretty easy to conclude some should be and others like this shouldn’t be. A lot of people have this notion that we have to have inflexible and categorical rules on everything because we can’t trust judges to exercise judgment. But there’s no way around that; whatever your regime you’ll get good results if judges exercise good judgment and bad results if they do not.
August 18, 2010, 8:11 pmsubpatre says:
They can and already have. Though prosecutions are not numerous the punishments can be severe. Ask Blago . . . unless this new ruling nullifies his recent (sole) conviction.
August 18, 2010, 8:12 pmJust Dropping By says:
It’s times like this that I seriously regret that the Volokh Conspiracy doesn’t allow commenters to embed photos in their replies, because if there was ever a comment that called for the Picard facepalm demotivator, it would be this one.
August 18, 2010, 8:38 pmDavid Schwartz says:
One cannot be false and the other true. If a person says that they have reason to believe that my wife is cheating on me, regardless of what words they use to say that their comment is true or false based on whether they have such a reason.
If a person says “your wife is cheating on you” in a normal context, those words *mean* that they have reason to believe that your wife is cheating on you, reasons that would justify your having the same belief. A sequence of words cannot be true or false, only a conceptual relation can.
This is the key difference between the legal concept of a lie and the practical common sense version. The legal concept processes the dictionary definitions of words and utterly ignores the actual commonsense meaning. (But does so for good reasons.) The commonsense meaning looks at the intended and understood meaning of the words regardless of their dictionary definitions.
In commonsense, “your wife is cheating on you” means that the speaker has a reason to believe that your wife is cheating on you that justifies your believing that too.
August 18, 2010, 8:56 pmDavid Schwartz says:
Let me explain it a better way:
The words “your wife is cheating on you” denote a logical proposition that is true or false depending on whether or not your wife is in fact cheating on you. But when a person says those words, typically he is not stating a logical proposition but vouching for the truth of that logical proposition.
When a person vouches the for the truth of a logical proposition, he is typically claiming that he knows that this proposition is true and that this knowledge justifies your belief that the proposition is true. If this voucher is false, then the vouching itself constitutes a lie, by the commonsense understanding of ‘lie’.
A lie, or false voucher, is a form of dishonesty, not a form of metaphysical inaccuracy. That is what distinguishes a ‘lie’ from a ‘falsehood’.
August 18, 2010, 9:13 pmAndrew says:
Dilan, as I recall, Kerry (as a public figure) would have to prove “actual malice”. Anyway, if that standard applies to the Alvarez prosecution (doubtful since honorees aren’t normally public figures), do you think Alvarez had actual malice?
August 18, 2010, 9:26 pmHenry Bowman says:
I think lies of any type, including to police officers or agents of the Federal Bureau of Incompetents, should be completely legal. After all, we put up with such every day from our own Boy Blunder.
August 18, 2010, 9:39 pmArkady says:
Well, I’ve said all I will on this, as I don’t think I can add anything more to my argument. I would like to clarify this for you, though:
The proposition ‘your wife is cheating on you’ is not a logical proposition as that is understood in the philosophy of language. A logical proposition is generally understood to be one whose truth or falsity can be ascertained simply by an examination of the proposition itself (a tautology). Its truth of falsity does not depend upon some arrangement of facts about the world. (Perhaps you meant to say it is a well-formed proposition of the English language?)
August 18, 2010, 10:15 pmDavid Schwartz says:
Strange. I happen to have two references that define the term “logical proposition” handy. One of them defines it as “a statement that affirms or denies something and is capable of being either true or false”. The other defines it as “an assertion that is either true or false”.
Googling, found references like:
“A logical proposition is a statement that proposes something that can be decided or determined as to whether it is true or false.”
and
“A logical proposition is a statement that proposes something that can be decided or determined as to whether it is true or false.” [Ack, sorry, cut/pasted the same thing twice and now I can't find the other one and don't have enough edit time left.]
I also did find some places that defined the term as a statement that is true by virtue of its form and not its content. So either both meanings are in use or a lot of people are mistaken.
I’m not sure what would be a better term for a relationship or statement that can be either false or true. (Without any implication that it is being claimed or vouched for, such as ‘assertion’ and ‘claim’ have.) Perhaps just ‘proposition’?
August 18, 2010, 10:44 pmDilan Esper says:
They can and already have. Though prosecutions are not numerous the punishments can be severe. Ask Blago . . . unless this new ruling nullifies his recent (sole) conviction.
Lying to government investigators falls within the injurious falsehood rubric and isn’t protected even under the Ninth Circuit majority’s test. That wasn’t the question I asked, however.
August 19, 2010, 3:12 pmDilan Esper says:
Dilan, as I recall, Kerry (as a public figure) would have to prove “actual malice”. Anyway, if that standard applies to the Alvarez prosecution (doubtful since honorees aren’t normally public figures), do you think Alvarez had actual malice?
I think he did, and also disagree with your public figure analysis; the lie was about Alvarez, who is a public figure. However, you are missing a couple of key points: (1) arguably, the standard for criminalizing false statements should be stricter than the civil standard, (2) there are other constitutional restrictions on defamation suits besides actual malice– e.g., no presumed damages.
In any event, you did not answer my question, which is whether Congress can constitutionally criminalize lying about Senator Kerry’s military record.
August 19, 2010, 3:18 pmhtom says:
Aha!
Have the FBI investigate suspect claims, asking the claimant whether he was awarded the whichever by a proper issuing authority of the United States Government. If the claimant replies in the affirmative, and the records show that the claimant was not, then charge him with lying to the FBI! No free speech issue involved.
August 19, 2010, 4:43 pmBama 1L says:
You are all over-thinking it. Look at the statute: 18 U.S.C. s 704(c).
I agree that’s not really the name of the medal, but that is what the law says.
August 19, 2010, 10:09 pmAndrew says:
I suspect that if it’s constitutional for a court to convict Swift Boaters of slander, and thus squeeze money out of them in a civil action, then it would also be constitutional for the court to impose a fine authorized by statute. Does the First Amendment make a distinction between punitive damages versus fines? I think not.
In any event, maybe the Swift Boaters were never ordered to pay anything because the case against them was weak, unlike the Alvarez case.
August 19, 2010, 10:20 pmWhy Americans Take The Congressional Medal Of Honor So Seriously | Popehat says:
[...] I agree with a recent Ninth Circuit decision holding the Stolen Valor Act unconstitutional, I understand the impulse that led lawmakers to pass [...]
September 13, 2010, 7:29 am