Three say yes; two say yes, as long as the defendant was not in custody; four say no; two say no, but were ruling only on pre-arrest silence; and one hasn’t ruled on the issue at all but said no in dicta.
Hell, this guy maintains a blog devoted exclusively to circuit splits.
No Scalia. He voted to overturn flag-burning bans. I see this issue as analogous. I agree that lying about having a Purple Heart should be fine. I don’t think wearing one and lying about actually receiving it is okay, though.
I still think the proposal I set out on the first two pages (making medals US government property which can only be transferred to the heirs of recipients, and prohibiting the manufacture of replica medals) is the best way around this. Won’t solve the problem WRT existing medals/replicas, of course, unless the fed can renationalize them or something.
It doesn’t take a majority of the court to grant certiorari, so the granting of cert doesn’t by itself indicate anything. If it did, we’d always know in advance what the outcome would be.
I said nothing of the kind. Obscenity, slander, libel, fighting words, child pornography, disclosing military secrets, crying “Fire!” in a crowded theater - all are speech that is not protected. I predict SCOTUS will add “wearing and/or claiming military decorations to which you are not entitled” to the list.
I would certainly hope so. Never understood how it could be ruled ‘protected speech’ in the first place. Representing yourself as something you are not is generally considered fraud.
“The law” in very many respects is not a syllogistic process; it requires applications of judgment (is this act “reasonable”? Is that interference with liberty justified? etc). Judges are appointed in part to bring their own sets of values to these decisions. And when they do, they exercise restraint - they are well aware that they are not elected by anybody. Nevertheless, to suggest “that it won’t actually be the law that drives the decision” involves a misapprehension of the legitimacy of judges’ allowing their innate level of conservatism (or its converse) to determine those questions of judgment. And by “conservatism” I don’t mean partisan adherence, although the two may or may not coincide.
All that said, one of the peculiarities of the US system is that it essentially forces judges to make what elsewhere would be recognisably political decisions - that is a price paid for having an entrenched Bill of Rights.
And my guess above that the decision to hear the case is a strong indicator that the court will reverse the 9th Circuit was never intended to be conclusive. In principle, they might accept the case and uphold. But if they don’t take the case, the 9th Circuit’s decision, coupled with a refusal of certiorari by SCOTUS, will be powerfully persuasive elsewhere in the country (albeit not technically binding), achieving much the same result as SCOTUS’s going to all the trouble of hearing and upholding. And of course I agree that the decision to hear the case is not made by the Full Bench. But it is indicative of how at least some members of the court are inclined, on the reasoning above.
Hence my view about the decision to take the case being indicative of the likely outcome.
My belief that an industry in valour bling would develop is, as I said above, a slippery slope argument, which arguments I generally find uncompelling. But I didn’t make the idea up entirely. It is already possible to buy a “General Patton” hoodie. Imagine if you could get replica medals to go with it? “How cool would that be?” would be a question many would find irresistable.
Has the military raised any objections to be it being considered ‘free speech’? I would think they would have a vested interest in not allowing Joe Schmoe to dress up like an Army Officer and go around presenting himself as one.
Fraud is already illegal. You have to show detrimental reliance on a false statement. This law goes beyond fraud to make the lie by itself illegal, regardless of whether the other elements of fraud can be shown. Generally speaking you can lie as much as you want – the lid by itself isn’t fraud if there are no legally significant consequences.
I’m in favor of upholding the law, but I don’t see how it’s any of the military’s business to determine what is or is not free speech. Several veterans’ groups have supported the law, though.
Just curious. How far does this act go? Let’s say that I am sitting in a bar chatting some hottie up and I throw in a line about how I just got back from Afghanistan and it was great to be home.
But it’s essentially what will happen. They’ll make illegal something that does no harm except make some people angry or upset. Which makes it different, in important and substantial ways, from all the other curbs on free expression that you list. Not law; politics.
Beyond making some people angry and upset, it also makes it difficult to identify people we, as a society, have determined it shouldn’t be difficult to identify.
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“Hey, if this is ‘free speech’ then we have some security issues” might be one way that it is their business.
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I don’t really understand what you’re saying here.