Monday, February 08, 2010

Stolen Valor Act facing legal challenges and Jonathon Turley is a jackass

Hot on the news of the arrest of nut job with a pure case of exaggeration of heroic achievement (see Stolen Valor) comes this legal idiocy -
Stolen Valor Act facing legal challenges:
At issue is a 3-year-old federal law called the Stolen Valor Act that makes it a crime punishable by up to a year in jail to falsely claim to have received a medal from the U.S. military. It is a crime even if the liar makes no effort to profit from his stolen glory.

Attorneys in Colorado and California are challenging the law on behalf of two men charged, saying the First Amendment protects almost all speech that doesn’t hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.

Jonathan Turley, a professor at George Washington University Law School who is not involved in the two cases, said the Stolen Valor Act raises serious constitutional questions because it in effect bans bragging or exaggerating about yourself.

“Half the pickup lines in bars across the country could be criminalized under that concept,” he said.
Yes, Professor Turley, but in both the case of the "bragging pickup line" and the "stolen valor" even in the absence of "financial gain" the intention is to get something that might not be attainable if the truth about the liar was known.

People don't just start wearing medals they didn't earn because they like the pretty colors. They get some gain out of it.

An exhibitionist who flashes his wares in public rarely gets a financial gain out of it either, but it is generally not considered "protected speech" even by law professors.

This is not the same as a sports fan wearing a team or player jersey to show support. It is highly unlikely that the sport fan will be thought of as a member of the team or identified as the player himself.

This also is not the same as an actor donning various badges, medals and ribbons for a role or even to someone playing "dress up" for a costume party in that presumably neither the actor nor the costume wearer is making the fraudulent assertion that he is entitled to wear such badges, ribbons and medals because he was awarded them or earned them.

Further, Professor Turley, to compare the fraudulent wearing of the trappings of valor to "pickup lines" in a bar demonstrates a special sort of arrogant ignorance and a true disregard for the men who really earned such medals defending your First Amendment rights.


Now that's my First Amendment protected view of you, professor.

UPDATE: More on the two cases mentioned here. One was the case of a California Water Board member who
"had just been elected to a water district board in 2007 when he said at a public meeting that he was a retired Marine who received the Medal of Honor, the nation's highest military decoration.

His claim aroused suspicion, and he was indicted 2007. Alvarez, who apparently never served in the military, pleaded guilty on condition that he be allowed to appeal on the First Amendment question. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000. The case is now before a federal appeals court."
The other:
The other person challenging the law is Rick Glen Strandlof, who claimed he was an ex-Marine wounded in Iraq and received the Purple Heart and Silver Star. He founded an organization in Colorado Springs that helped homeless veterans.

Military officials said they had no record that he ever served. He has pleaded not guilty, and a judge is considering whether to throw out the charge.
That not quite the whole story on Strandlof, according to this:
Rick Strandlof, executive director of the Colorado Veterans Alliance and the man most colleagues knew as Rick Duncan, was front and center during the 2008 political campaigns in Colorado.

He spoke at a Barack Obama veterans rally in front of the Capitol in July, co-hosted several events with then- congressional candidate Jared Polis and attacked Republican Senate candidate Bob Schaffer in a TV ad paid for by the national group Votevets.org.

And the mostly Democratic candidates he supported — looking for credibility on veterans issues and the war — lapped it up appreciatively.

Now, politicians are dealing with news that the man they believed to be a former Marine and war veteran wounded in Iraq by a roadside bomb, in fact, never served in the military — but did spend time in a mental hospital.

Many of the candidates he supported won their elections handily and now say they were defrauded as much as anyone else.
In Udall's case, Strandlof appeared in an ad paid for by an independent political group that was legally barred from communicating or coordinating with the Democrat's campaign. (Jon Soltz, head of Votevets.org, said in a statement that his group usually checks the credentials of veterans used in ads but didn't in this case "because he was already a well-established leader of a veterans group in Colorado.")
See also here.

No financial gain?

Just like "bar lies?"

Not hardly.

UPDATE2: Kind of makes my point here:
The well-told combat tale, delivered by an accomplished liar, has become almost cliche. It has been known to yield any number of perks: a job, a date, a fundraising boost, a political leg up — even a free parking place via Purple Heart license plates. It can conceal character defects or even criminal histories.
Yeah, you know, some things real veterans might not get because they are honest.

UPDATE3 (9 Feb): More here, with a link to a real legal scholar here. Excerpts from Professor Volokh's amicus brief in the Strandlof case:
And it makes sense that such statements are generally constitutionally unprotected, because “there is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). Once a sufficient mens rea—usually, “actual malice”—is shown, such false statements of fact are constitutionally punishable.
Why would any knowingly false statements of fact be constitutionally protected? The chief reason is probably the one the Supreme Court identified in New York Times v. Sullivan: The risk of liability for falsehoods tends to deter not just false statements but also true statements. New York Times v. Sullivan, 376 U.S. at 278-79. Some speakers may sincerely believe, for instance, that some statement about the government is true, but may realize that they might be mistaken. Other speakers may be confident that the statement is true, but may worry that a hostile jury will wrongly conclude that the statement is false. In either case, the speakers may be deterred from making true and therefore constitutionally valuable statements for fear that the statements will be punished as false statements. That is the famous “chilling effect” of punishment for false statements. Id. at 300-01 (Goldberg, J., concurring in the judgment).
But though the Stolen Valor Act does treat false statements about one’s military decorations differently from other false statements, it appears to fit within one of the exceptions to the R.A.V. principle: “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” Id. at 390. False claims of military honors are not limited to any particular viewpoints, or even particular topics of debate. They can equally be raised by people who are anti-war, who are pro-war, or who are just trying to get themselves elected to an office that is entirely unrelated to the military.
UPDATE4: From the government's brief in the Alvarez case:
Defendant’s challenge boils down to the startling proposition that the First Amendment protects a politician who lies to the public about his military record. As defendant puts it, “[f]alse speech is protected speech” and “[t]he Court’s
scrutiny [here] . . . should be especially demanding . . . where the statement was made by an elected official . . . on an issue of public concern: his qualifications for office.” As discussed below, defendant’s argument, if accepted, would turn the First Amendment on its head and also contradicts applicable law.

While no one can deny that the warning caveat emptor applies to politicians, the First Amendment does not, cannot, and should not shield a politician who tries to subvert the very democratic process that the amendment seeks to protect. In truth, settled First Amendment jurisprudence provides that deliberate falsehoods
fall outside the amendment’s protective shield. It is only in the realm of ideas –– unlike the case here which involves a readily verifiable misstatement of fact –– that falsehoods garner any free speech protection.

Moreover, even if the Court were to conclude that defendant’s lie deserves a modicum of protection, the government’s undeniable interest in protecting from dilution the significance of the nation’s highest military distinction and the
magnitude of the accomplishment of those who actually earned it clearly outweighs that interest.

UPDATE (17 July 10): A ruling against the Stolen Valor Act here.

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