People who are physically disabled can be treated differently or extended special courtesies or considerations that are not given to able-bodied people,* even outside of the realm of official benefits. Is it illegal for me to go around in public in a wheelchair (maybe telling people I was in a car accident that paralyzed me from the waist down), as long as I don’t actually apply for any kind of special benefits (e.g., in Milwaukee, you can get a discounted bus pass if you have certain disabilities)?
*Yes, I know this isn’t always the case, but bear with me here.
No, but then requiring a wheelchair is a highly subjective issue. Maybe your legs just hurt a lot. Maybe you sprained an ankle one time and you have a pathological fear of putting weight on it.
This seems like a legal argument to me. It seems the only way to refute this legal argument is to offer a number of cases that seem to cut the other way. (Unless you’re arguing your “experience of the law.”)
First, let’s dispose of the “newspaper gets a fact wrong.” There is plenty of law settling the proposition that “falsely” means a deliberate misstatement and not a simple error. So the law already contains that scienter requirement – the lie must be knowing, not a mistake.
No one is arguing that your list of horribles should all be illegal. That’s a question of policy.
But it seems to me you’re arguing that they could not be made illegal because such a law would violate the First Amendment. I don’t agree.
The only other case to address this specific issue I’ve found has been U.S. v. McGuinn, 2007 WL 3050502, Southern District of New York. Lewis Lowell McGUinn, who had left the Army as a private, was convicted of vilation of the Stolen Valor statute for wearing Lieutenant Colonel leaves and a raft of service medals he had not won. He, too, raised a First Amendment defense, and he too was convicted, with the court opining:
And in a footnote from the original case:
More generally, your idea that false speech has First Amendment protection seems unsupported. The Sixth Circuit considered false speech in the context of electioneering in Pestrak v. Ohio Elections Comm, 926 F. 2d 573 (1991). Walter Pestrak, a candidate, made statements about his opponents that the Commission alleged were false, in violation of Ohio law. Pestrak claimed that regardless of the truth of falsity of his statements, he was entitled to make them under the First Amendment. The court disagreed:
The Ninth Circuit upheld the false light tort claim of actor José Solano, Jr, who sued Playgirl magazine after they published his picture on the front cover, bare-chested and wearing his red “Baywatch” costume. The words “TV Guys. Primetime’s Sexy Young Stars Exposed” appeared beneath his picture, which Solano argued conveyed a lie: that he appeared naked within the magazine. Rejecting a First Amendment defense for the magazine, the court said:
(emphasis added).
In Gibson v. Mayor and Council of Wilmington , 355 F.3d 215 (3rd Cir. 2004), the court distinguished between political ideas, even those not demonstrably true, as deserving of the highest protections, and simple falsehoods:
(Quoting Gertz v. Welch, 418 US 323 (1974). And as the Fifth Circuit said in Colson v. Grohman 174 F.3d 498 (1999):
It definitely should be a criminal misdemeanor to demean those that sacrificed so much in the course of duty by simply pasting those earned awards on your own undeserving chest. It dishonors the medal to be worn by someone who has done so little. That dishonor sullies every medal on every rotting chest in Arlington. Granted its just a little smudge and wipes off easily…but it should be a crime, without question.
He’s fraudulently claiming respect he so doesn’t deserve. When any of his classmates see a guy in uniform with that many medal they will have a hint of doubt in their minds whether that Veteran earned them or is some guy who just threw on the uniform for the fun of it. That Veteran with a real rack of medals doesn’t deserve that doubt. That’s the crime this guy needs to pay for.
The misdemeanor will likely mean a combined fine under $1000. But the damage to his reputation may mean he gets to wear a whole different kind of uniform for the rest of his life. He will wake up greeting each morning not with revelry but with, “Would you like hashbrowns with that?”
The whole point of a military uniform is that it does in fact represent authority. That’s why military uniforms exist.
And in fact, the fake Marine was in the company of at least one other servicemember, specifically, the U.S. Navy commander who reported him in the first place. However, I hasten to add that I don’t think that the presence or absence of other military personnel is relevant with respect to whether or not an offense has been committed.
I agree with you here. As I have stated repeatedly, I fail to see how impersonation of a military servicemember with intent to deceive equates to any type of protected free speech.
This guy was not trying to make any type of political statement. He was attempting to deceptively pass himself off as an active-duty commissioned officer in the U.S. Marine Corps. Period. Why would this be a freedom of speech issue?
What Bricker did here is take Don’t Call Me Shirley’s remarks about the tone of his post and Shot From Guns’s surreply and a pithy little saying that follows on S.F.G.'s post to create the illusion that we all agree at least in principle with Bricker’s account of what a right is. We do not, and he should not get away with it.
i just meant that I may be pedantic, but I was accurate. “Right” is not in my post as the noun meaning something to which one has a enforceable legal or justifiable claim, but rather as the adjective which is a synonym for correct.
I know. You wrote “But right [correct]” as in “You may not like how I expressed my account of what a right (as in entitlement), but it was right (as in accurate).” It was a skillful bit of reframing on your part, I’ll give you that, and you would have gotten away with too, if it weren’t for those meddling kids (i.e., me).
I might start with this. I would also aver that when Justice Kennedy said that Bowers “was wrong the day it was decided,” he was not talking about stare decisis and making a point about which courts can overrule the Supreme Court. Nor do I think he was suggesting that the Bowers Court had ruled against the historical weight of caselaw on the matter, indeed, at that time, the caselaw was nothing if not favoring the state’s power to criminalize homosexual activity. Rather, Justice Kennedy was asserting was most people intuitively call obvious (although, I will graciously allow that your theory is not without its subtle charms), that the Constitution has an external meaning outside of the pronouncements of entities charged with interpreting it.
It is of course true that we, attorneys in particular, but anyone who wants to comment on what the law is, have to deal with these pronouncements. But dealing with them isn’t at all the same thing as taking them as the exclusively permissible account of what the Constitution means.
Perhaps, when cashiering the long-forgotten poster who asserted that the stolen valor law violated the First Amendment, this is all you meant: that other litigants have also controverted their convictions for stealing valor on First Amendment grounds and their suits were unsuccessful. This is true, as far as it goes, although it would have been helpful, and more persuasive, to adumbrate that court’s rationale. Perhaps our poster could then have told us why the federal court’s holding was deficient, as–and note well that this could not be the case if your account of Constitutional interpretation were correct–lawyers do in federal court every single day. Perhaps you tire of lay caricatures of what Constitution say, I certainly do too; but we won’t help our cause by propping up our own mountebanks of how Constitutional litigation and jurisprudence occur.
But the thing is… even when those lawyers who offer challenges to current Constitutional interpretation begin by acknowledging when the substantial weight of the caselaw does not favor them. They typically seek then to distinguish their own claims from the extant body of law, or show why the decision conflicts with other precedent and why their favored interpretation should win the day.
I haven’t read all the amicus briefs for Lawrence, but I’m willing to bet we won’t find one that says, “Bowers should be overruled because it was wrong the day it was decided.” I am willing to bet that the vast majority of amicus briefs say things like, “Bowers should be overruled because it is inconsistent with Romer,” or “Bowers should be overruled because the weight of Due Process and Equal Protection decisions since it was handed down have cut the other way.”
Of course, but whatever your opinion on the constitutionality of sodomy laws was, it was not a synthesis of case law on the matter. On some, maybe most, matters, this synthetic approach works, but I dare say on these high-profile matters that strike at the heart of how we think society ought to be organized, our social norms matter a great deal more than words in musty old copies of the Federal Reporter.
Lawrence didn’t come out the way it did because there had long been this delicate balance of homosexual-conduct-condemning and homosexual-conduct-permitting case law and then–powza!–Romer came along and was the straw that broke the camel’s back. Romer came out of nowhere; that’s why Kennedy J. wrote things like the case “confound[ed] this normal process of judicial review” and “defi[ed] . . . conventional inquiry.” This is how judges talk when they’re about to be a game-changer.
All this is to say is that the sea-change in gay rights jurisprudence didn’t occur because (1) gays used to not have [human] rights, but then they did, or (2) the language of the Constitution changed, and certainly not (3) caselaw had always been equivocal about the matter. It occurred because (4) society starting taking the commands of equal protection and due process seriously. Laws that deny equal treatment to gays and lesbians because of their sexual orientation have always been invidious discrimination, and our cases are creatures of their age. But our founding aspirations of equality or freedom of conscience (and its attendant right to speak freely) have had a great deal of longevity; we should not confuse caselaw for principles.
It’s obvious how wrong abortion is. It’s an affront to the basic principles of reverence for life that we as a country hold dear, and flies in the face of basic human rights. Oh, sure, the Supreme Court currently – currently – doesn’t agree, but that’s utterly irrelevant to my argument. Which is simply that abortion is unconstitutional.
Somehow, even though I am ardently pro-life, I can’t imagine offering the above with a straight face.
How would you treat that argument if you came across it in a thread?
I don’t think this is the correct analysis. The sea-change in gay rights jurisprudence mirrored the sea-change in the acceptance of homosexuality in society, which followed the sea-change in mainstream psychiatry which resulted in homosexuality no longer being classified as a disease.
It’s not so much that the Court’s interpretation of anything changed, but that the facts of the case essentially changed, or rather that expert testimony on which Bowers was based was recanted.
You could argue with a straight face that criminalizing homosexual conduct was a legitimate government interest when homosexual conduct was considered the symptom of a disease. Not so much when it was just something a sizeable minority of healthy, well-adjusted adults were into.
On a more-related-to-the-real-topic note, if the case law to which Bricker referred is not controlling - or was decided wrongly - what case(s) would you refer to? It’s not really that unusual an issue, when you think about it.
Where I come from we frequently discuss the effect of current laws, and how they might be bettered or modified to achieve some goal. We make relatively easy distinctions between the laws as they stand and how they should be.
Where I think sometimes in the US you are often precluded from that, by the discussion of apparent constitutiality or unconstututionality. If something is ‘unconstitutional’ its the same thing as saying its ‘bad’ without having to discuss the merits of the law itself. Similarly, if something is ‘constitutional’ (as judged by the sitting Supreme Court bench, or an earlier bench in a decision that remains uncontested) it is necessarily good - end of discussion.
Am I way off base? (Maybe I am - I haven’t thought about it that much)
In my view, you’re not off base, but you should be.
What I mean to say by that is while you’re right that in many people’s minds, “constitutional” equates to ‘good’ and “unconstitutional” to ‘bad,’ it isn’t so, or at least shouldn’t be so. The Constitution should not be considered to be an all-encompassing reference work on the wisdom and morality of laws. It’s not.
This is probably a primary reason I remain unconvinced by the complaints here and in the related Pit thread. Apart from correcting what appear to be misstatements of fact, every one of these discussions is an opportunity to press the reminder that “constitutional” and ‘good’ are not synonymous.