If that’s the holding, I could live with that.
IANAL, so take it easy, but I haven’t seen the following line discussed:
Wearing a counterfeit military award is equivalent to impersonating military personnel. Whether or not the action satisfies the 9 points of fraud outlined by Bricker above, the action can be construed as interfering with the mission of the US military.
Also, because the action in question is contemptible and deserving of ridicule, it disrupts the intended communication of the US military when the awards are genuinely granted. Your individual rights find a limit at the point they interfere with the rights of others, no?
I’m not sure you can go there, since retired military personnel still get to wear their medals.
I don’t think the status of ‘military personnel’ expires at ‘retired’.
Ok, there is a terminological hair I’m not splitting in there somewhere…
For my part, I find the dissent more persuasive than the majority, for what that is worth. The starting point is that this is by definition necessarily false speech on a clearly and narrowly defined issue of fact where there is a legitimate community interest in preventing it. Bybee J’s reasoning from there persuades me, at least. Arguments that try to extend that to saying that lies about a 9" penis can therefore be prohibited are uncompelling as slippery slope arguments generally are.
But of more interest is the way in which the judges are so…bitchy to each other. I don’t read many US court decisions, but are they always bickering with each other like this? They seemed in this case to spend a disproportionate amount of their time complaining about the arguments in the contrary judgment. It all reads as though everyone is being very defensive.
Where I come from, dissenting judges don’t attack the reasoning of the majority directly (and vice versa), they attack the arguments of the party that they do not accept. Same ideas are being attacked, but without the tone of scrappiness and divisiveness among the members of the bench that is, to my eye, very evident in this case.
Or do you just get used to this style?
It used to be rare but is becoming more common, alas, and the Supremes have set the tone, again alas.
SCOTUS will now review the constitutionality of the Stolen Valor Act: http://www.washingtonpost.com/politics/supreme-court-to-review-free-speech-issue-on-lying-about-military-honors/2011/10/17/gIQAFh0frL_story.html
Prediction: writing for a 7-justice majority, Roberts analogizes Congress’ power to prohibit the use of government-issued medals by unauthorized persons to its power to prohibit counterfeiting of legal tender or any other federal government document (I’m assuming that it is in fact illegal to impersonate in writing, say, an officer of the Federal Elections Commission).
Thanks for reviving the thread with the notice, Elendil’s Heir.
As i said in the OP, “i suspect that the Supreme Court might end up overturning it.” I think that, if they do, i will likely consider it a shitty decision.
Which 7? I could easily be wrong, but I think SCOTUS is going to uphold the finding of unconstitutionality. Some of the conservative justices are pretty gung ho about free speech.
Make that six: Roberts (obviously), Breyer, Alito, Ginsburg, Thomas, Kagan. I counted Roberts twice to get 7, I think. :smack:
I’m iffy on Ginsburg.
This is a good case for fantasySCOTUS.net! I think the SC will consider the law unconstitutional on free speech grounds.
I also predict they’ll reverse the Ninth Circuit and uphold the law by a 6-3 majority.
Counterfeit medals might be a real problem. Just making fictitious claims wouldn’t be. I should know, I used to be a Supreme Court Justice.
I bagged slippery slope arguments above; I will now indulge in one. If it becomes perfectly legal to wear unearned medals, I foresee an industry in turning copies out, and a fashion statement developing where people wear MOHs and NCs like they wore Mercedes Benz hood ornaments a few years back. I doubt the unearned wearing of such things will remains restricted to the pathetic losers who now try it on - it will become like wearing team jerseys or the like. Such a development would not just debase the value of medals, it would make it actively embarrassing to wear an earned one, because of the risk of its authenticity being lost in the fashion of valour bling.
There are some things you just shouldn’t be able to commodify like that.
The fact that SCOTUS has taken the point strongly suggests they will overturn it. The arguments for and against are as clearly articulated as they can be in the 9th Circuit decision. SCOTUS has better uses of its time than just saying “us too”. A refusal of certiorari would have been almost as compelling an approval of the 9th Circuit’s view, without SCOTUS drawing on itself the opprobrium necessarily involved in deciding as the 9th Circuit did.
Should we start an SD bookie operation on SCOTUS decisions?
No Scalia?
I know he is usually big on free speech, but I can’t see it in this case. First, I think the law is pretty silly. Sure, let some guy lie about earning a Purple Heart. I don’t think it should be a crime.
Likewise, I don’t think it is a basic right to tell a verifiable lie; especially when such a lie would naturally induce people to give you a benefit to their detriment (free meal, free drink, sex, etc.)
In other words, what protected idea or expression are you trying to make when you falsely claim a medal?
Conservatives on the Supreme Court value free speech, more often than not, but they also honor the U.S. military. I think the latter consideration will drive the decision.
I guess anything’s possible, but this sounds like fantasyland to me.
In other words, you predict that it won’t actually be the law that drives the decision? Unfortunately, i think you’re probably right.
Why do you say that? When a US Circuit Court overturns a federal law, that means the law is overturned in part of the US (under the jurisdiction of that CC) but not in the rest of the US. ISTM that the SCOTUS is compelled to rule in those cases.
I’m guessing they will uphold the ruling, as was done with the flag burning issue.
It’s good that you said “some” of the justices. Alito’s threshold for chipping away at the sanctity of free speech is frighteningly low.