Stolen Valor Act ruled unconstitutional.

Great Debates
21

Because members of the American public do not often encounter active-duty members of the armed forces in their official capacity, I do not expect that any examples I could give would be recognized by you as “realistic.”

One example that I’ve mentioned, however, is if martial law or a state of emergency has been declared. In such a case, the military is operating in a law-enforcement capacity. This has not happened often, according to wikipedia, but it has happened, and could likely happen again in the future, as in the case of a natural disaster, for example.

Other examples might include situations in which members of the armed forces are protecting nuclear weapons in transit, or U.S. Marines guarding the President, or guarding embassies. A person impersonating a member of the armed forces could interfere with these duties. (Granted, such interference would likely be illegal, too.)

Getting farther afield, what about someone who decides to put on a military uniform in a combat zone, or a theater of operations like Iraq or Afghanistan?

OK–once again, it makes sense to compare falsely claiming to have won the Nobel Prize to falsely falsely claiming to have won a military medal, which (reprehensible though it may be) are both probably protected speech. (Note that a servicemember who tried this stunt would be in violation of miltary regulations, and so punished, of course.)

It might also make sense to compare false claims of winning a prize or a medal with false claims to be a veteran. Again, you’re talking about something that occurred in the past.

It does not make sense to me to compare false claims of winning the Nobel Prize with false claims to be currently serving at Naval Station Great Lakes. A person falsely claiming to be currently serving at Naval Station Great Lakes is falsely claiming to be an active-duty member of the armed forces. I do not think that this is protected speech, any more than a person falsely claiming to be an off-duty police officer.

22

Well how about trying to give me a realistic one. Because if you can’t, there’s no bloody need for the law, is there?

All of those things are, I am pretty much certain, illegal without this current law. It simply doesn’t address those problems. Hence I asked for a realistic situation where such behave could cause harm that was not already illegal.

Sighs. You’re really not reading very successfully. I haven’t said either is protected speech. I am not sure either is. However, just because some speech isn’t protected doesn’t mean banning it is automatically a good idea.

23

I have no opinion on the subject of this thread. I just want any chick reading it to know I was in the Special Forces, Green Berets AND Seals. At the same time. I choked people with my bare hands, blindfolded, in the freezing tundra. It was part of the standard training.
But it’s all classified above Top Secret clearance, so I can’t really talk about it.
Outside of PMs.

So, you know. PM me if you’re hot.

24

Well, i’ll give you this, Bricker: in your relentless insistence on seeing case law as the be-all and end-all of these arguments, you are as hard on yourself as you are on other people.

I still think that your narrow focus is misguided, though.

While it might be true that the Ninth Circuit has now found this law to be unconstitutional, i don’t think that’s any bar to someone continuing to argue that the law is (or, perhaps more accurately, should be) constitutional.

That is, while the decisions of certain courts do become the effective law of the land (at least until overturned by a higher court), i think there is still a productive discussion to be had about the broader constitutional principles. For example, if the Supreme Court ends up agreeing to hear this case, and overturns the Ninth Circuit’s ruling, that will change the official status of the Stolen Valor Act, and will render it constitutional. As i said in the OP, it won’t surprise me too much if the Supreme Court does overturn this decision. But even if that happens, it won’t change my opinion that the law violates the constitutional right to freedom of expression. In my opinion, the law is unconstitutional, no matter what any particular court finds.

While i appreciate your willingness to say “I was wrong,” i don’t really think that you were wrong, as such. It’s true that a court has now made a ruling that renders your earlier argument incorrect, but that doesn’t render invalid your personal belief that the law is constitutional.

Do you see the distinction i’m trying to draw here? While we have no choice but to live with the rulings the courts make in these cases, it doesn’t mean we have to sacrifice our own sense of what is right, or even what is constitutional, even if that doesn’t accord with judicial decisions.

25

What if the Federal Government decrees that all military decorations awarded henceforth remain the property of the US Federal Government, and may only be worn, carried or claimed by those so awarded and their progeny?

26

Hey, me too!

Don’t lose heart, Bricker. I agreed with your earlier argument, and as you probably know, the Ninth Circuit is overruled by the Supremes more than any other U.S. court of appeals. I suspect they’ll uphold the law when and if they address it.

27

I don’t think this is true, at least in terms of percentage of appeals overruled (the ninth court has more total cases overruled, but thats just because its the largest federal court and so hears the most cases).

As to the OP, I agree that criminalizing non-fraudulent lying should be unconstitutional. And in any case, the stigma against lying about military service is pretty high already that I suspect the non-legal repercussions of being discovered to have done so are enough that any non-draconian punishment from the legal system won’t really add that much of an extra disincentive.

28

Right. That’s really the heart of my argument. As many people have pointed out in free speech debates, having the right to freedom of expression also means that you have to accept that, if your expression is unpopular enough, a lot of people might end up calling you a douchebag, and you might end up a social pariah. And i think that’s generally punishment enough for these glory-seekers.

I am somewhat torn, though, on the case from Denver, which i referred to in my OP. While the judge dismissed the five Stolen Valor charges that were filed against the defendant, it seems to me that the motives behind the defendant’s lies might warrant some sort of legal punishment. According to this article:

I wouldn’t have too much trouble with a law that allows this sort of speech to be punished if the speech makes claims that cause people to part with money or some other item of value in a good faith belief that the claims are true.

It’s not clear to me whether current laws regarding fraud and deception might already cover this sort of thing. I’m not a lawyer. But if they don’t, then maybe they should. Although, if the organization itself used the money for the purposes that it was claiming, then maybe it’s still not a big deal.

29

Does US law not have the idea of: “Obtaining a Pecuniary Advantage by Deception”.

This is how, in the UK, there is a blanket prohibition of lying in order to make money without otherwise affecting free speech.

30

In 2006, the Supreme Court heard 21 cases from the Ninth Circuit, 29% of its overall workload. It reversed or vacated 18 of those cases for an 86% overrule rate. No other circuit was this high.

In 2005, the Supreme Court heard 18 cases from the Ninth Circuit. It reversed or vacated 15 of those cases for an 83% overrule rate. No other circuit was this high, again, in either percentage or total cases overruled.

Before I keep researching (both those years were handy in an article I was reading, can I ask if you have any citation for your claim that this ISN’T true? In other words, is it worth my continuing to dig out numbers?

31

We call that fraud.

32

Fraud is not quite the same thing.

Obtaining a Pecuniary Advantage by Deception differs from fraud because it, for example, allows for the prosecution of someone who lies in order to get the opportunity to provide a good or service and actually provides the good or service.

For example, if I agree to sell you something for £10 that you would normally only pay £8 for and tell you that I need the money to pay for an operation for my child and you make the purchase I haven’t defrauded you - you get exactly what you expected to get.

In the UK someone who does that can be charged with “Obtaining a Pecuniary Advantage by Deception”.

I’m sure most jurisdictions have something similar although it may not go by the same name. It basically means that you have free speech but you cannot use it to deceive people and make a profit in money or money’s worth.

33

Googling, it seems to depend pretty heavily on what time period you look at, lots of blogs seem to cherry pick time periods (or, to be fair, are just published in different years) to make it seem either the most reversed or slightly below average depending on whatever point their trying to make. The small numbers of cases involved mean that it jumps around relative to the mean number of reveresals from year to year.

This pdf here takes the average over the last decade, in which case its the second most over-ruled court after the federal court of appeals.

So I was technically right, but Elendil’s point that the ninth is often over-ruled (about 80% of the time) is also correct.

34

Not the same thing.

At common law, fraud has nine elements:

A
[ol]
[li]false [/li][li] statement of a [/li][li] material[/li][li] fact, [/li][li] made knowingly, [/li][li] intended to induce reliance, [/li][li] which does induce actual [/li][li] and reasonable reliance and [/li][li] which results in damages caused by the misrepresentation.[/li][/ol]

If you can’t show damage, there is no fraud at common law.

35

I think the Federal Circuit suffers from a tiny sample size, which dramatcially skews its percentages. And of course the Federal Circuit is limited in jurisdiction to IP cases, which is not really the subject matter that we’re discussing here.

36

Isn’t the relevant percentage rate the number of cases overruled by SCOTUS out of the total number of cases decided by the Court of Appeals, rather than the number of cases SCOTUS reviews from that Circuit?

37

Arguably. But if, as I think likely, the Supremes grant cert to hear this case, what matters in terms of percentages is how the Supremes have handled other Ninth Circuit cases in which they have ruled upon the merits. They only grant cert in a tiny percentage of all cases decided by all courts of appeals, of course.

38

No.

The Court has a number of motives to hear a given question:

  1. The court below got it wrong (or there’s a split in circuit authority, which means even if they don’t care strongly what the right answer is, SOMEONE is wrong)
  2. There’s a substantial federal interest in the question
  3. They have to, because it’s part of their original or appellate jurisdiction.

Even so, the size of the Ninth Circuit dwarfs the other federal circuits. The Supreme Court simply lacks the resources to grant more certs than they do. So to take 2006, the Ninth Circuit cases they DID accept generated almost a third of their workload for the year.

39

It’s been ages since I have done stats, but is the difference significant?

40

Stop there.