Federal court says Stolen Valor Act violates First Amendment

Via Gabe Malor, does freedom of speech include the freedom to lie?

Rick Glen Strandlof claimed he was an ex-Marine who was wounded in Iraq and received the Purple Heart and Silver Star, but the military had no record he ever served. He was charged with violating the Stolen Valor Act, which makes it a crime punishable by up to a year in jail to falsely claim to have won a military medal.

U.S. District Judge Robert Blackburn dismissed the case and said the law is unconstitutional, ruling the government did not show it has a compelling reason to restrict that type of statement…

Denver attorney Christopher P. Beall, who filed a friend-of-the-court brief for the American Civil Liberties Union of Colorado, said the Stolen Valor Act is fatally flawed because it doesn’t require prosecutors to show anyone was harmed or defamed by the lie.

“The government position was that any speech that’s false is not protected by the First Amendment. That proposition is very dangerous,” Beall said.

“It puts the government in a much more powerful position to prosecute people for speaking out on things they believe to be true but turn out not to be true,” he said.

Indeed, but of course Strandlof didn’t believe his service to be true. That’s a key distinction, and that’s one of the reasons Eugene Volokh thinks we should make a First Amendment exception for this particular type of lie. (You can read his 15-page amicus brief here.) We make an exception for fraud and, in certain cases, defamation because they involve knowing falsehoods. No one wants people afraid to speak for fear of being prosecuted in case they happen to have their facts wrong, but stolen-valor degenerates realize full well what they’re doing. Nothing innocent or mistaken about it.

The other key element is whether there’s “fraud” in any meaningful sense if no one suffers concrete/financial harm from it. Read the court’s opinion — like Volokh’s brief, it’s nice and concise at 14 pages — for more on that. You can argue, of course, that there is concrete psychological harm done to vets who earned their medals honorably by letting liars walk around with phony brass pinned to their chests. But if you go that route, then you have to start explaining whether it should also be illegal for, say, a guy to tell women at a bar that he’s an investment banker in order to make them think he’s rich. That is to say, we don’t really care about people lying about their credentials in the abstract; we care about them lying about military credentials specifically because most of us have tremendous respect for the unique sacrifices that vets make. But judges don’t like carving out constitutional exceptions for specific classes of people, whether based on respect or otherwise. Once you go that route, then suddenly you’re back to arguing whether flag-burning should be a special exception to the First Amendment because of the unique respect we have for the stars and stripes, etc. Volokh’s line of attack is the more clever one legally: No unique carve-outs for military decorations but rather a more broad-based argument that most knowing falsehoods in any context should receive lesser constitutional protection, especially (if not necessarily) when they cause concrete harm. Like I say, read — or skim — his brief. Good stuff.

Update: My mistake. It was DrewM who posted this at Ace’s site, not Gabe Malor.

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