*[This got a bit long and wayyy off topic into the hijack, so I started a Pit thread. Not really a good Pit thread (there’s no swearing or vitriol), but it seemed more appropriate and polite to the OP to take the side discussion elsewhere. Bricker, you are not a law professor]
Exactitude or not, I hereby say, with the full force of a message board post, that if this case made it to the Supreme Court and the Court held to most of its previous First Amendment law, it’s more likely than not (that better?) that they would rule against the government. They should rule against the government.
It’s speech because wearing a Fuck the Draft jacket is speech. It’s speech because somehow the distinction between wearing a grandfather’s medal and pretending to have won a medal comes across. This isn’t possession of unearned bits of metal, it’s the outward proclamation, through dress, conduct, deed, or otherwise, that someone earned a Special Award (when in fact they didn’t).
While the Courts generally give a Cheveron tanker’s worth of deference to the legislature, they are very protective of the First Amendment. There are lots of curtailments on speech, but each of those curtailments has such a strong purpose as to outweigh the relative sacrosanctity of the First Amendment.
Hanging the law as necessary to protect the public safety isn’t going to pass muster. Though you could make the claim that there are public safety benefits, those benefits are minimal (especially when compared to prohibiting police impersonation). Hanging the law as necessary to protect the reputation of the government isn’t going to pass muster. Though you could make the claim that it furthers a legitimate end, the likelihood that a soldier is going to change their conduct because the medals have less value is tenuous at best. The Court is much more likely to see these at pretexts and pretenses and focus on why the law was passed in the first place — squashing offensiveness.
The courts have held that certain offensive materials (i.e., obscenity) can be prohibited. The court could rule that pretending to have earned a medal is obscene. That would, however, be a severe reconsideration of the definition.
Yes, there are many situations whose criminalization is easily justified (e.g., fraud for some more material gain), but allowing this is tantamount to granting the Federal and State governments the power to outlaw all lies, regardless of purpose.
Consider the implications. (Note, not a slippery slope, just examining what the rule of law would be). If this were to be upheld, then, say, Texas could pass the Don’t Mess with Texas Act of 2009. It could criminalize any untruth (intentional or otherwise) that caused offence to the state. Within the bill, any untruth about the Great State of Texas is deemed to be presumptively offensive. Misquote statistics? Say something like “all Texans are X” on a message board? Criminal. Have a private conversation about an experience in Texas, but get a fact wrong? This rule of law would say that criminalizing this is Constitutionally permissible. The newspaper that gets a fact wrong. The puffed-up profile on a dating service. The padded resume. Woe the citizens of a State who has the power to criminalize any incorrect statement.
I don’t think the State should have that power.
I think that the Constitution protects me from the State having that power.
I think this barrier is at the core of what makes this country so great.
I think that carving out an exception for offensive speech is antithetical to the essence of the Constitution, and it’s a great injustice to “honor” someone who made a sacrifice for the Constitution by disrespecting it.