Does the First Amendment protect a lie?

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Does the First Amendment protect a lie?

Postby portia » Sat Feb 25, 2012 6:23 pm

I was listening to the oral argument in the Supreme Court (thank you CSPAN) on the case of a man who was prosecuted under a federal statute forbidding claiming military honors falsely. The man had claimed to be a Medal of Honor winner.

The Federal Public Defender was arguing (this is a massive paraphrase and also a simplification) that we should start from an assumption that speech is protected and that we must find a basis for an exception (other than that we disapprove of the speech) if it is not to be protected. He argued that this speech doesn't fit any of the accepted exceptions. It doesn't harm anyone (e.g. defamation); it doesn't impede law enforcement (lying to a federal investigator) and so on. Apparently the prosecution conceded that there was no specific harm arising from this man's false claim.

So, the defense said, a lie should be protected Free Speech unless it can be shown to have had some consequence that the government is entitled to try to avoid.

HMMM. I think I agree with that, even though I think falsely claiming to be a Medal of Honor winner is disgusting.

Comments?
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Postby vison » Sat Feb 25, 2012 7:16 pm

Well . . . okay.

On the other hand, yeah, it should maybe be some kind of minor crime. Worse than some, though. Like maybe worse than possession of marijuana?

I would hope this a**h**e has now been exposed as a lying SOB of the highest order. Medal of Honor!!!!!!!!!!!! What an incredible creep. Is public shame punishment? I bet a lying, creepy jerk like this is incapable of shame.

Someone should make a T-shirt with his picture on it and a great big spear through the throat and the words, "Liar, liar, pants on fire!" and I'd buy one and the proceeds could go to scholarship for veterans' kids. In the US, veterans' kids.
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Postby Jnyusa » Sat Feb 25, 2012 8:47 pm

Whether there is harm, I think, depends on who he made the claim to, what sort of benefit he was attempting to lay claim to by deceit.

Do you know the circumstances, Portia?
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Postby portia » Sun Feb 26, 2012 8:42 am

NO. All I know is that the prosecution conceded that there was no harm (maybe they meant no "prosecutable harm" like defrauding someone of money) that resulted from this false claim.

IIRC there was a short discussion about "intentional infliction of emotional distress" and whether that would be "harm" but, I think, that discussion ended when the fact that the prosecution had conceded there was no "harm" was repeated.

I do not have a transcript.

This is my interpretation: Maybe the defense was saying that the lie, by itself, should not be criminalized. But if there is some fraud or a civil wrong (like defamation) that results from it, THAT could be prosecuted or sued on.
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Postby wilko185 » Sun Feb 26, 2012 9:09 am

"I was a war hero"

"Honey, I'll be working late at the office"

"If elected to office, we promise to ..X"

I'm not sure why the law should get involved in these sort of lies in themselves, though the further consequences of dishonesty might be actionable.

If there is a law forbidding claiming military honours, but without specifying that the statement has to be done "maliciously", or "with the intention of ..X", then I'm not sure what the purpose of the law really is?
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Postby Minardil » Sun Feb 26, 2012 1:33 pm

I read this story, the guy was a local politician from somewhere out West (TX, CA, AZ, maybe I forget exactly), and he yes, he went about claiming to be a CMOH winner, among other whoppers. What is truly breathtaking is that he thought he wouldn't get caught out. The guy is positively deluded.

Falsely WEARING un-earned medals and other military decorations has been a crime for over a century, dating to the decades following the Civil War when it was apparently quite common. But this guy didn't do that, he just told people he was a Medal of Honor winner.

I can't see HOW this law is constitutional, and I don't buy the government's argument that genuine medalists are harmed by having their own valor wrongfully appropriated by someone else.

The liar's actions are disgusting, sickening, and truly LOW, but I don't think we can send him to jail for it. What lies will they criminalize next?
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Postby hamlet » Mon Feb 27, 2012 7:08 am

Being a lying scumbag is neither against the law nor against the Constitution.

However, it is unconstitutional in that there are likely those who are quite upset by this who will see to it that this jerk has the error of his ways explained to him.

However, under the law, he has committed no infraction and one cannot make laws or punishments just because you don't like what the person did. That is unConstitutional.
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Postby vison » Mon Feb 27, 2012 7:43 am

hamlet wrote:However, under the law, he has committed no infraction and one cannot make laws or punishments just because you don't like what the person did. That is unConstitutional.


No doubt you are right. But such laws are on the books, just the same.
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Postby hamlet » Mon Feb 27, 2012 8:15 am

vison wrote:
hamlet wrote:However, under the law, he has committed no infraction and one cannot make laws or punishments just because you don't like what the person did. That is unConstitutional.


No doubt you are right. But such laws are on the books, just the same.


You misunderstand me, I think.

I'm saying that this particular guy, it seems (barring the outcome of the trial), has not actually committed a crime. I.e., no law covers what he did and criminalizes it. If it was decided to create a law after he is released that criminalizes that behavior, you can't go after him for it. That is specifically unconstitutional.

And yes, I'm aware that a lot of the "there oughta be a law" laws exist in the penal code now, and one can argue as to whether they should or not.
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Postby vison » Mon Feb 27, 2012 8:39 am

hamlet wrote:
vison wrote:
hamlet wrote:However, under the law, he has committed no infraction and one cannot make laws or punishments just because you don't like what the person did. That is unConstitutional.


No doubt you are right. But such laws are on the books, just the same.


You misunderstand me, I think.

I'm saying that this particular guy, it seems (barring the outcome of the trial), has not actually committed a crime. I.e., no law covers what he did and criminalizes it. If it was decided to create a law after he is released that criminalizes that behavior, you can't go after him for it. That is specifically unconstitutional.

And yes, I'm aware that a lot of the "there oughta be a law" laws exist in the penal code now, and one can argue as to whether they should or not.


No, I got what you meant, and I agree.

I just wish it was always obvious to the rest of us that lying scumbags get what they deserve. Sometimes you see it and sometimes you don't.

I can't think of a lie much scummier than to claim you won the Medal of Honor. I'm not a big military-hero-worshipper in general, but there are times when you just have to be in awe of the things some men do. Like the men who have won the Victoria Cross, Medal of Honor winners are a breed apart.

When I was growing up, many of the fathers and uncles of my generation were veterans of WW II. One friend of mine, her dad was a veteran of both WW I and WW II. Those men often, more often than not, did not talk about the war, or brag about their accomplishments. My uncle Clem would not even go to the Armistice Day ceremonies, never mind pin his medals and ribbons on his jacket and march in the parade. My uncle and cousin in Texas were the same - when they told stories it was never about their exploits or the horrors of war, it was always jokes and wild tales. Or, mostly, they did not talk about it at all.

When my uncle Clem died, my cousin found all his wartime belongings, even his service revolver, which he was not allowed to have kept. She was amazed at the medals and ribbons, he had been in the thick of things from the early days of the war, long, long before D-Day. He had "good medals" as they say, and yet he hid them away as if he had been ashamed of them.

Those men were typical, in my experience. And then to have some miserable poltroon (don't get to use that word very often!!!) steal their honours? The guy is beneath contempt.

Jail is too good for him.
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Postby Minardil » Mon Feb 27, 2012 8:47 am

Hamlet,

In this case, there really IS a law that forbids the making of false claims to military medals.

It's called the Stolen Valor Act, passed in 2005 and signed into law by Mr. Bush.

http://en.wikipedia.org/wiki/Stolen_Valor_Act_of_2005

I happen to think the law is Unconstitutional, we'll see if the currently "conservative" Supreme Court will rule according to Constitutional Principals, or if they'll use the same sort of politically motivating thinking they used to rule that Corporations are People.



Here's a link to the current case before the USC:

http://en.wikipedia.org/wiki/United_States_v._Alvarez
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Postby hamlet » Mon Feb 27, 2012 8:54 am

Minardil wrote:Hamlet,

In this case, there really IS a law that forbids the making of false claims to military medals.

It's called the Stolen Valor Act, passed in 2005 and signed into law by Mr. Bush.

http://en.wikipedia.org/wiki/Stolen_Valor_Act_of_2005

I happen to think the law is Unconstitutional, we'll see if the currently "conservative" Supreme Court will rule according to Constitutional Principals, or if they'll use the same sort of politically motivating thinking they used to rule that Corporations are People.



Here's a link to the current case before the USC:

http://en.wikipedia.org/wiki/United_States_v._Alvarez


I stand corrected then.

But it does appear to be, at least, a bit Constitutionally iffy. I leave such matters up to the folks we pay to be experts in the subject.
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Postby portia » Mon Feb 27, 2012 10:10 am

Minardil:
Thanks for the links.

It may be hard to separate the lie from its consequences, but if you do that, I agree that it is unconstitutional to criminalize a lie.

There has been a longstanding principle that the government can't criminalize or restrain speech based solely on its content (independent of any consequences of the speech). So, going out in an open field and shouting "fire" is not criminal, as it probably has no consequences. But, if you shout it in a crowded theater, it probably will have consequences, and it is the consequences that can make it criminal.
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Postby Minardil » Mon Feb 27, 2012 11:16 am

portia wrote:Minardil:
Thanks for the links.

It may be hard to separate the lie from its consequences, but if you do that, I agree that it is unconstitutional to criminalize a lie.

There has been a longstanding principle that the government can't criminalize or restrain speech based solely on its content (independent of any consequences of the speech). So, going out in an open field and shouting "fire" is not criminal, as it probably has no consequences. But, if you shout it in a crowded theater, it probably will have consequences, and it is the consequences that can make it criminal.


The "consequences" here - according to the authors of the law - are that the people who've actually won the Congressional Medal of Honor will suffer a depreciation in the value of their own honor and valor. I personally don't buy that.

For example, I'm an Eagle Scout. I see other people falsely claiming the same thing, but I've never felt that this diminished my own accomplishments. And yes, I realize this is a trivial matter compared to winning the Medal of Honor, but it is something that people respect etc.

And apparently the law also criminalizes the making of false claims of membership in elite military units. You can't go around claiming to be a Navy Seal, for example. Now, claiming to be a DOCTOR and then trying to TREAT SOMEONE, THAT sort of lying I can see criminalizing, but claiming to be a Commando to impress some chick at a bar? Well, that's sleazy to be sure, but criminal??? I don't think so.
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Postby hamlet » Mon Feb 27, 2012 11:32 am

Possibly germane to the topic, I recall an article Storyteller posted a while ago (last year?) about a Palenstinian man found guilty of fraud or some such for lying about being Jewish in order to pick up and have sex with a woman.

Different laws at work, I know but interesting as a side note.
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Postby Silverberry_Spritely » Mon Feb 27, 2012 1:41 pm

It only protects it as long as the lie isn't used to perpetuate another crime. I would have liked to hear the case.

If I lie on here and say I'm a neurosurgeon, there's no issue. If I claim that and I give someone medical advice representing myself as a doctor, whole different ball game. I'm guessing something similar occurred with this.
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Postby Minardil » Tue Feb 28, 2012 9:49 am

Silverberry_Spritely wrote:It only protects it as long as the lie isn't used to perpetuate another crime. I would have liked to hear the case.

If I lie on here and say I'm a neurosurgeon, there's no issue. If I claim that and I give someone medical advice representing myself as a doctor, whole different ball game. I'm guessing something similar occurred with this.


Remember in this case the Stolen Valor Act criminalized false claims of military awards or specialized military service regardless of any secondary "crime". The claim itself was held to be injurious to genuine medal holders, in the law anyway. We'll see if the Court agreed.
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