Criminalizing Lying

March 28, 2011

Controlling Authority isn’t dead . . . well it is, but since I refuse to get a Facebook page, this is going to have to do for me. Remember the Stolen Valor Act? It’s the rather hysterically-named federal statute that makes it a crime to lie about receiving military honors. If you are brave enough to win the Medal of Honor, can anyone, especially some scumbag with the temerity to falsely claim to have won one too, really steal your valor? It seems to me that your valor is pretty much unassailable.

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!


More on Bernard Knox

September 7, 2010

Here’s a link to a fine appreciation from G.W. Bowersock in the New Republic.


A Life Well Lived

August 17, 2010

Here’s a link to the obituary of Bernard Knox, the great classics scholar. I have a copy of his Essays Ancient & Modern on my office bookcase. His introduction to Robert Fagles’s translation of the Iliad is brilliant. Here’s my favorite part of the obit, but read the whole thing.

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.’ ”


School Dazed and Confused

July 1, 2010

Lots to say about this article.  First of all, is it as disconcerting to you as it is to me that the following clause is just a phrase in a sentence?  Last school year, 258 public school students were shot in Chicago . . . .

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?


Any Sociologists Out There?

June 8, 2010

Gotta love this. It’s the “sociologists write the news” thing. My favorite part:

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.


Umpires and Judges

June 3, 2010

There’s only one thing I like almost as much as practicing law, and that’s baseball. Like Al Capone, it’s one of my enthusiasms.

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.


Wendy Kaminer on U.S. v. Comstock

May 20, 2010

Ms. Kaminer on the recent Supreme Court case that approved a statute that allows for indefinite detention of any federal prisoner deemed to be “sexually dangerous”, including the vast majority of prisoners who were not convicted of sex-related offenses.