Maggie's Farm

Three justices of the 9^th federal circuit, all appointed by Republican Presidents, disagree on the limits of free speech under the 1^st Amendment. This presents an interesting appeal to the US Supreme Court.

Two of the justices rule that the Stolen Valor Act, which criminalizes knowingly wearing or claiming federally authorized military decorations and medals of valor, is unconstitutional. These justices describe stolen valor as vile and worse, and deny that they provide a constitutional right to lie. But they deny that there is any harm done that requires punishment. Their arguments are basically that, barring a demonstrable harm to another person, free speech should prevail. Interestingly, they point out that the Defense Department providing a public list of those who have been awarded medals of valor would help publicly reveal frauds. However, the Democrat Congress has failed to act and the Defense Department has quibbled away its responsibility. (I analyzed this here.)

On the other hand, the dissent presents judicial and legislative chapter and verse that demonstrable harm to an individual is not a necessary hurdle to restrictions on certain types of knowingly false speech (or actions) that go beyond the pale of acceptable or protected. He reaffirms, as did Congress in passing the Act, that knowingly representing oneself as a decorated hero disparages the valor of those who were awarded. He provides prominent examples of Congress’ authority to so legislate. Further, he dispels the contention that satire or theatrical performances would fall within the Act, or that it is overbroad in practice as only the clearest cases have been brought by federal prosecutors.

You may like or not the arguments raised by either side, but should also recognize that judging a law is about its lawfulness not the rhetoric. So, unless the Supreme Court decides to broaden or overturn existing case precedent, the Stolen Valor Act would be upheld. But, we’ll see.

The majority and minority opinions are here.  

Josh Gerstein at Politico raises some interesting judicial undercurrents that may become clearer at the Supreme Court.