Friday, July 23, 2010

Lying is protected First Amendment speech (don't tell the kids)

In a decision filed on July 16th (pdf - p1, p2 etc refer to the pdf pages) US District Judge Robert E. Blackburn stated:

The matter before me is defendant’s Motion To Dismiss Information [#13] 1 filed December 2, 2009. Having considered the motion and response and their supplements, as well as the arguments and authorities presented by amicus curiae, 2 I find and conclude that the statute under which defendant is charged is unconstitutional as a content-based restriction on First Amendment speech that is not narrowly tailored to serve a compelling government interest. Accordingly, I grant the motion. (p1)

Sounds fair. Let's see just what this protected speech is:

The Amended Information charges defendant with falsely representing himself to have been awarded a Purple Heart on four different occasions in 2006 and 2009, and falsely representing that he had been awarded a Silver Star on one occasion in 2009. By the instant motion, defendant seeks to dismiss these charges, arguing that the Act is facially invalid as a content-based restriction on free speech. (p2)

So the judge is dismissing the charges because the statute the defendant is charged under violates the First Amendment. Without even looking at what the statute says, based on the above paragraph, the judge appears to be saying that lies are protected free speech. What is the statute, and what does it say? It's Section 18 Section 704 of the United States Code. Part 'a' states:

(a) In General.— Whoever knowingly wears, purchases, attempts to purchase, solicits for purchase, mails, ships, imports, exports, produces blank certificates of receipt for, manufactures, sells, attempts to sell, advertises for sale, trades, barters, or exchanges for anything of value any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces, or the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable imitation thereof, except when authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both. (from US code at Cornell Legal Information Institute)

Sections 'b' and 'c' covers specific fake medals. This law says that it is illegal to pass yourself as a member of the armed services, and to pass yourself off as having earned awards you have not.

What in the world does this case have to do with free speech? It has to do with lying and misrepresenting yourself. According to this decision I can pass myself off as a cop. Or a doctor. Do I even have to worry about committing perjury?

To make matters worse, the judge admits that he can find only one other case that examines the First Amendment implications of this act - and that case upheld it:

The only other court that appears to have addressed the constitutionality of the Stolen Valor Act relied on a similar rationale in rejecting a defendant’s First Amendment challenge to the statute. (See id. App, Exh. A (Order Denying Defendant’s Motion To Dismiss, United States v. Alvarez, CR 07-1035(A)-RGK).)

I am not so sanguine. The government’s argument, which invites it to determine what topics of speech “matter” enough for the citizenry to hear, is troubling...  (p3)

Judge Blackburn goes on to mention a few First Amendment cases that really don't relate. He quotes from Riley v. National Federation of the Blind of North Carolina:

The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. To this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners. (p3-4)

This case is not about guarding the public mind or regulating any aspect of press, speech or religion. It's about people committing fraud, pretending to be decorated service men and women to gain benefits they would not otherwise gain from the people around them.

Well, I'm not going to go through the entire 14 page pdf here. He goes on to quote other cases and talks about what he considers the biggest weakness of the law:

The principal difficulty I perceive in trying to shoehorn the Stolen Valor Act into the First Amendment fraud exception is that the Act, although addressing potentially fraudulent statements, does not further require that anyone have been actually mislead, defrauded, or deceived by such misrepresentations. (p6)

Ok, we're not talking about a guy staging a play. We're talking about Rick Glen Strandlof. According to the Denver Post he is a man used an alias and made false claims about being at the Pentagon on 9/11 and in Iraq. Apparently he never served at all. Somehow, despite the fact that he misled hundreds, if not thousands, of people and solicited money from them under false pretenses - damaging the image of anyone coming after him trying to raise awareness of and/or money for veterans issues - the ACLU and this judge have decided that he harmed no one by falsely claim to be a decorated veteran.

An article in the Huffington Post ends with a wonderful quote from ACLU attorney Christopher P. Beall:

The government position was that any speech that's false is not protected by the First Amendment. That proposition is very dangerous," Beall said.

Ok, I guess I can see why he says that, but it still ranks as one of the most ridiculous on-the-face-of-it quotes I've seen in a while. Especially when used in defense of someone who undertook to commit a long term, detailed and potentially very lucrative fraud.

If you'd like to read the rest of the decision, you can download the pdf here.