November 10, 2011

Supreme Court to Hear Military Honors Lying Case

Should lying about earning military honors be a federal crime, or does it simply amount to a white lie protected by the First Amendment? On October 17, 2011, the U.S. Supreme Court agreed to make that decision. United States v. Alvarez [PDF], 617 F.3d 1198 (9th Cir. 2010).

The case arose from a false statement made by Xavier Alvarez after he was elected to the Three Valley Water District Board of Directors in Southern California. At a July 23, 2007, public meeting, Alvarez introduced himself by saying, “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

Alvarez had never been awarded the Medal of Honor, nor had he even been a Marine.

Later, when a woman notified the Federal Bureau of Investigation (FBI) about Alvarez’s lies concerning military service, the agency obtained a recording of the meeting in which Alvarez lied about his background. Alvarez was ultimately indicted on two counts of violating the Stolen Valor Act, 18 U.S.C. § 704(b), (c), which makes it a crime for an individual to knowingly and falsely represent that he or she has received certain military honors, including the Congressional Medal of Honor.

The district court found that the First Amendment did not protect statements the speaker knows to be false and sentenced Alvarez to three years of probation, 416 hours of community service, a $5,000 fine, and a $100 special assessment. Alvarez appealed on First Amendment grounds.

On appeal, the Ninth Circuit Court of Appeals reversed and remanded. Finding that the Stolen Valor Act did not meet strict scrutiny because it was not narrowly tailored, the appeals court declined to “enlarge the scope of existing categorical exceptions to First Amendment protection.” The court found that the Stolen Valor Act regulated and imposed criminal penalties on pure speech without any “additional elements that serve to narrow what speech may be punished.” It reasoned that upholding the Stolen Valor Act as constitutional might lead to the criminalization of little white lies told about one’s personal appearance on online dating websites or fibbing to “one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on a freeway.”

After the Ninth Circuit denied en banc review, the U.S. Solicitor General filed a petition for writ of certiorari, arguing that the law “plays a vital role in safeguarding the integrity and efficacy of the government’s military honors system.”

The Supreme Court is expected to hear arguments in the case early next year, with a ruling possible by the end of June.

Those with long memories for utter trivia will remember that I have questioned both the constitutionality and the wisdom of this statute.
So I was glad to see that last week the Ninth Circuit refused to reconsider en banc a decision affirming a district court decision that voided a conviction under the SVA on the grounds that the statue violated the First Amendment’s protections for speech. Judge Kozinski’s concurrence is a great read.  Here’s the gravamen of it:

That the government can constitutionally regulate
some narrow categories of false speech—such as false advertising,
defamation and fraud—doesn’t mean that all such
speech falls outside the First Amendment’s bounds. As the
Supreme Court has cautioned, “In this field every person must
be his own watchman for the truth, because the forefathers did
not trust any government to separate the true from the false
for us.” Id. at 419-20 (internal quotation mark omitted);
Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J.,
concurring). Yet the regime the dissenters agitate for today—
one that criminalizes pure speech simply because it’s false—
leaves wide areas of public discourse to the mercies of the
truth police.

But what readers will  remember best about his opinion is his catalog of 29 reasons that the non-saints among us lie, and examples for each type of deliberate falsehood.  These range from the truly kind (“the doc says you’re getting better”) to the less admirable (“I’m allergic to latex”).

To recap — not all bad behavior can or should be criminalized.  Someone who lies about receiving a Medal of Honor will be scorned by all good people once his lie is discovered.  That should be punishment enough, and should provide enough deterrence.  And if it doesn’t, tolerating the occasional lying braggart is the price that a free nation must pay for the freedom to lie about being Jewish on JDate (to use one of Judge Kozinski’s examples).

I want comments from Paris!

The O.S.S. later sent him into northern Italy for an equally dangerous mission with the Italian underground, and it was there that he rekindled his passion for the classics. Holed up in an abandoned villa, he discovered a bound copy of Virgil and opened it to a section of the first Georgic that begins, “Here right and wrong are reversed; so many wars in the world, so many faces of evil.”

Professor Knox recalled, in “Essays Ancient and Modern,” “These lines, written some 30 years before the birth of Christ, expressed, more directly and passionately than any modern statement I knew of, the reality of the world I was living in: the shell-pocked, mine-infested fields, the shattered cities and the starving population of that Italy Virgil so loved, the misery of the whole world at war.”

He continued, “As we ran and crawled through the rubble I thought to myself: ‘If I ever get out of this, I’m going back to the classics and study them seriously.’ ”

Hold up! Put on the brakes!  Call out the National Guard!  How can this sentence go on?  Why aren’t we protesting in the streets?  What would it take to start a serious social movement about poverty and violence in this country?  and yes, I guess I am talking to myself too.

But the article does go on to talk about a program whereby social scientists were consulted to “predict” the 250 kids most likely to be shot and then provide them with “care taking and support”.    Hmm.  How does that conversation go?  ”You know those really smart statisticians in the mansions over there – yeah.  They think you (or your child if they are talking to the adults) are in the top 250 kids most likely to get shot next year.  Here is your bullet proof vest ”care and support” team.  It is one woman teacher.”

How do we get to a place where “success” is identifying the 250 kids most likely to get shot and helping them not to?  What about 251?  and also, 258 kids still got shot.  I am all about some things Mayor Daley does and fighting for handgun restrictions (in the face of the newly made-up discovered  interpreted individual right to bear arms) is one of them.  But wow, is there seriously nothing more we can do?

It is not insignificant to cleanup efforts, however, that even today BP’s leadership lacks adequate gender diversity, its board of directors being made up of fourteen persons, only one of them who self-identifies as a female, and all of whom earn significantly more than the median income in Louisiana, Alabama, and even the relatively privileged residents of coastal Florida.

You might not share my enthusiasm, however, and if you don’t then you may have missed last night’s big story: The Detroit Tigers’ pitcher Armando Galarraga lost a perfect game (27 outs in a row) when, on the 27th batter, umpire James Joyce blew a call, calling a runner safe at first whom the replay shows was clearly out.

So why post this here? Well, lately it’s become fashionable for Republicans, and the judges they appoint, to compare judges to umpires: neutral callers of balls and strikes. The implication is that judges should not bring their personalities and experience with them to the bench; there is no place in judging for the empathy that President Obama lauded in Justice Sotomayor, any more than there is a place for it in calling a bang-bang play at first. Judging, like umpiring, requires only the application of established rules to a stream of unique events. — each pitch is different, but the strike zone remains the same.

Jonathan Chait at tnr.com posted an item on the blown Galarraga call.   Here’s what one of his commentors, rayward, had to say about umpires’ neutral objectivity, and judges’ by implication as well. I think it’s pretty astute.

Like the batter who decides to swing (or not) before the pitch is thrown, Joyce had made the decision to call the runner safe before the runner had hit the ball. For those who spend lots of time watching and coaching baseball (as I do), this is a common experience. The mind takes over for the eyes and “sees” what the mind believes it will see. For those who believe judges are mere impartial umpires who observe the facts and apply the law to the facts, watch that play at first base and then consider whether judges have already “seen” the facts and applied the law before reading the briefs and listening to the oral argument.

Also, in the same vein, Justice Souter gave a commencement address at Harvard last week that comprehensively rebutted the umpire-like “original intent” jurisprudence now espoused by the Scalia-Roberts wing of the Supreme Court.  The entire address is here, or you can read E.J Dionne’s summary here.

But all values exist in a hierarchy, including individual liberty. Libertarians seem not to recognize this. Forty-six years later, most Americans (including, emphatically, me) believe that it was good that the federal government banned racial discrimination in public accommodations, even though this meant infringing on the right of a restaurant or hotel owner to invite whom he pleases onto his property. But many ideological Libertarians do not — a central tenet of their political philosophy is that property rights are sacred, and that the government has no business banning discriminatory behavior by individuals on private property, even if the majority finds such discrimination offensive. And one of those ideologues, Rand Paul, just won the Republican nomination for the Senate in Kentucky.

Here’s a link to a post that has his recent interview with Rachel Maddow. Pretty amazing stuff. As Ezra Klein says, “when you can’t answer the question ‘Should [the] Woolworth lunch counter have been allowed to stay segregated? Sir, just yes or no,’ it’s fair to say you’re off-message.” This magic moment comes at the end of the long, painful interview. If the Democrats can find a halfway decent candidate, this could be an interesting election.