IMO: For showing up to his class reunion and impersonating a member of the Armed Services (with the intent to deceive), I would be satisfied with a misdemeanor conviction and hit with a fine.
For wearing the uniform on Halloween, or in a theatre/movie production, no conviction.
For trying to gain entry into a secure facility, or an attempt to exercise authority over another (uniformed) individual: Jail time.
I imagine our Judges and Prosecutors have some discretion in these cases.
One thing I saw on the first couple of pages here that really bothers me is those saying that this man’s behavior is protected under the first amendment and I’m not really sure how you can justify that in any meaningful way. As I understand, and I’m sure a constitutional scholar can correct me, the concept of freedom of speech has to actually has to have some message. A common example of speech that isn’t covered by the first amendment is yelling fire in a crowded theater.
As a more relevant example, there are laws against public nudity and no amount of saying you’re just expressing yourself means that it it’s constitutionally protected as free speech. However, as a case in point, I recall seeing a case on one of Penn & Teller’s BS episodes (I believe it was about Breast Obsession) where a woman was arrested and charged with indecent exposure for exposing her breasts as part of a protest against the laws prohibiting women from exposing their breasts. She ultimately challenged and won on first amendment rights. However, had a woman just exposed herself without it carrying some message (as it clearly did in her case), it’s not really free speech is it?
So, yes, I’m strongly in favor of the first amendment, but I also agree that, in order for it to be some form of speech it actually has to have some message associated with it. Thus, if this man’s actions should be protected, then I’m sure someone can articulate the message that he’s trying to get across by wearing that uniform. So I challenge those who think that it is constitutionally protected to say what exactly his message is.
That all said, that I believe it’s not protected doesn’t mean it necessarily should be illegal. However, I do believe there is an articulatable danger in allowing people to impersonate a military officer. No, I’m not concerned about national secrets or access to weapons or anything like that, but there IS a danger because that uniform intrinsically carries a certain amount of public trust (honor due to soldiers notwithstanding). This individual may not have been trying to be a spy or order around marines, but where should we draw the line? I’d be fine with drawing it at intent if it were possible to objectively determine it, but we’re not.
On the matter of the medals, also think that simply wearing medals isn’t necessarily covered as part of free speech. I do think that a man would be covered under free speech if he wore a Navy Cross his father won in WW2 on Veterans Day because there’s an obvious message of expressing pride in his father’s service to his country on a day when we nationally recognize the service of the military. I don’t think it’s covered in the case of this man because, again, what message is he trying to express? I also agree with the concept that it is, in a way, cheapening the value of the medal by wearing it while not having earned it. However, I don’t believe that there is any sort of intrinsic danger in representing oneself as having won the Navy Cross. So while I think that it isn’t protected under the first amendment and would argue that wearing that medal makes him a douchebag of the highest degree, making it illegal because it doesn’t make anyone safer. Besides, it really only comes into play on top of impersonating a marine, so then it’s like giving a guy being charged with wreckless driving and facing a $5000 fine a $25 ticket for not wearing his seatbelt.
I think it’s quite plain how we got here Bricker. A poster argued that a law that criminalizes lying about one’s military valor in non-commercial contexts violates the First Amendment. Apparently forgetting every case in any Federal Courts casebook from Marbury v. Madison onward, you announced that the meaning of the First Amendment is whatever the highest federal court that has passed on it or its subissues has said it means.
You perhaps consider this a sophisticated legal realist position (or perhaps a legal process theorist position), when it is anything but, not least because no judge believes himself to be engaged in the creation of Constitutional meaning ex nihilo, and your account is at a loss to explain where it is that judges believe–and do–get their ideas of what the Constitution says from.
You have averred that it is from prior caselaw, but this, of course, only moves our focus to those earlier cases. At some point, cases of first impression are decided, and they not decided randomly. This is not to say that there is an incontrovertible interpretation of the Constitution residing in Plato’s Heaven to which we all have access and which will conclusively decide every possible case or controversy arising under it; but your notion that the Constitution is merely a conduit for the extra-Constitutional policy judgments of the courts doesn’t have much going for it.
What a fascinating lesson.
And wholly applicable to any discussion in which the basic issue is a matter of first impression.
Which this is not.
I guess it’s a good thing I didn’t say this was a case of first impression. Not that you’d ever know that from your cherry-picked selective quotation and evasiveness toward the thesis of my post.
No, it was central to your thesis. You said:
When a case of constitutional first impression comes along, it’s absolutely meaningful to offer opinions about what the constitution means. After the federal courts have spoken, it becomes much less meaningful, and much more appropriate to caveat one’s remarks with a “should” instead of a “does.”
Any other method is simply misstating, for rhetorical effect, the present state of caselaw.
Jesus effing Christ, Bricker. You are aware, aren’t you, that not everybody else in the world is a lawyer, right? And that sometimes, we unenlightened, moronic peons like to have conversations without some arrogant self-important law school graduate (oooooooooo…) scrutinizing our posts so you can gleefully pounce upon an instance of someone saying “does” instead of “should” so you can derail the thread into a semantic train wreck dedicated to your awesome brain power? Do you have any non-lawyer friends? What do they think of your ridiculously annoying habit of doing shit like this? How can you ever get through any kind of discussion with anybody? When you’re with a girl (or boy, whatever waives your flag) and they tell you to take off your clothes do you argue with them for 45 minutes over the precise definition of “remove”? Lighten the fuck up or go find a messageboard for lawyers where they appreciate this kind of bullshit.
I know this will come as a great shock to you, but when the discussion is about what the law is, there’s actually some value in discussing what the law is. I can only imagine your ire at a discussion about atomic fusion being derailed by some scientist who criticizes the participants for saying molecules when atoms are at issue, or a discussion about football halted by the foolish insistence that field goals not be confused with touchdowns.
Moreover, in the post you quote, I was replying to Kimmy_Gibbler, who is on information and belief an actual lawyer, and thus easily able to withstand my scary onslaught of words, ‘n’ stuff, that mean… stuff. About things that are written on paper by the men and women in your [del]legislature[/del]… your law-making place.
Hope that was less frightening to your brain. I can work it down even further, maybe get rid of a few more words that have those scary multiple syllables – you just let me know.
I quoted that post because it was the last one in a lengthy hijack that boiled down to the difference between “does” and “should.” A difference that you felt had to be pointed out to prove your intellectual superiority to us morons, and a distinction you began to make before Kimmy joined the thread to call you out on being such a douche. Well, congratulations, Bricker. I said “does” when “should” would have fit better. You got me. Wow. I can only imagine the feelings of superiority you must feel, and I want to thank you for completely distracting the thread into your little jerk-off session so that you could prove once again that you are smarter than everyone else.
Missed the edit window. (The edit window is not a physical window. Any similarity to an actual window is purely coincidental and unintentional.)
Yeah, you know, if non-scientists are having a friendly discussion about physics and they mistakenly call atoms molecules, it would take a total asswipe of a scientist to barge into their conversation and school them on the difference. It seems you have a hard time distinguishing between arguing a case before a court and a few non-lawyers having a friendly discussion. In the friendly discussion, it’s not a horrible thing to exchange “does” and “should,”, and in a friendly non-scientist discussion it’s OK to confuse molecule and atom. I know it might be hard for you to accept that other people can enjoy a conversation just fine without being instructed on the nuances of every single applicable legal principle, but not everyone is like you.
It is a misdemeanor. This is not a felony charge we’re talking about here.
No. No, no, no. Not on a messageboard dedicated to fighting ignorance when the mistake is germane to the discussion. Sorry. The scientist that pops in and says, “Molecules are not atoms,” when the discussion involves properties of atoms is doing exactly the right thing.
Can’t handle it? I would say this isn’t the forum for you, then. You’d be very happy in IMHO or MPSIMS, where unpleasant things like actual facts are not so critical.
Except that some molecules are atoms, since a molecule can be “one or more atoms.”
Somebody had to do it…
Of course. 
Nonetheless, molecules are not atoms. Rectangles are not squares.
Some molecules are atoms. And some rectangles are squares.
IIRC, though, you didn’t say, “You probably meant ‘should’ instead of ‘does,’” you said, “Because you said ‘does’ instead of ‘should,’ you are wrong.”
The former would be helpful. The latter is being pedantic.
But right.
But neither helpful nor conducive to a genuine discussion with people who haven’t been to law school. So, either you can be helpful, or you can create a sub-forum where only JDs are allowed to discuss anything related to legal issues.
*[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]
*
------on topic------
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.
I am way late to the party here, but I have to take issue with the idea that the uniform represents any sort of “authority”, given the context. Dude wasn’t in the company of actual servicemen, but civilians. What authority does the uniform represent?
That said, I have absolutely no problem with this being a criminal offense, given that he (presumably) made no attempt to claim that his wearing of the uniform and medals was political speech.
I know that.
It seemed to me that some folks objections to having the wearing of the uniform illegal was that it served no purpose to jail the guy. He’s not a danger to anyone, no one got hurt.
I was (clumsily) trying to point out that not all crimes = jail time. Therefore, having the act illegal does not mean that the man is going to be punished all out of proportion to his crime.