Lost in all of the excitement surrounding the health care ruling has been any meaningful discussion of the landmark First Amendment case handed down by the Supreme Court yesterday. Today, my brother can walk up to a microphone and falsely claim that he won four Purple Hearts and a Medal of Honor for his courage and valor in Afghanistan. Last week, had he made a similar false claim, my brother would have needed legal counsel and likely was headed for a short stint in federal prison. How did we get from there to here?
In 2005, Congress passed and President Bush signed the Stolen Valor Act (don’t they have a knack for naming things in Washington?), which made it a crime to falsely claim receipt of a military honor. The penalty was even worse if that false claim involved the Congressional Medal of Honor. The justification behind the law is self-evident: lies about receipt of military honors devalue, and therefore inflict harm, on actual recipients of the Medal of Honor and the general public. Lying is usually wrong, but it’s always wrong when you’re claiming reward of a medal you did not receive.
Two years later, at his first meeting as a member of the Three Valley Water District Board in California, Xavier Ramirez claimed that he was awarded the Medal in 1987. These statements were not made for any material benefit- all the evidence points to the fact that Ramirez lied pathologically. His lie was soon exposed, and community outrage ensued. Ramirez was charged under the Stolen Valor Act and the case made its way to the Supreme Court of the United States.
The Stolen Valor Act was a content-based restriction on free speech, meaning that it was the content of the speech that made the speech a crime. It is very difficult for a content-based restriction to stand. The reason is that the law itself must be narrowly tailored to achieve a compelling governmental interest.
The first question is whether protecting the integrity of those who have shown valor in defense of the United States is a compelling interest. It is, which leads us to the second question: was the Stolen Valor Act so broad as to “chill” free speech.
Justice Kennedy claimed “[p] ermitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable.”
This is the crux of the matter. If lying about military honors is in and of itself punishable, why should it not punishable for someone to lie about his height on his driver’s license or her weight on her concealed carry license? How about lying about your economic status in order to impress a woman or your age in order to impress a man? Slippery slope is taught in college as a fallacy, but First Amendment thought is, and ought to be, filled with slippery slope paranoia.
The outrage that ensued after the lies spouted by Mr. Ramirez proves another point Justice Kennedy made: the public outrage over the statements prove that the harm to the integrity of the general population, and especially those who have received such awards, was minimal in this case. “The best way to counter a lie is by telling the truth,” Justice Kennedy pointed out.
How can we balance the need to protect the public and the most courageous of our military from those who falsely claim that they received certain military honors?
Congressional leaders are seeking to remedy the Court’s opinion by limiting punishment for such false claims to those who make the claims in order to receive a benefit, such as a candidate for office, with a focus more on the harm and less on the lie. This would be tailored narrowly enough to pass the appropriately high level of scrutiny placed on content-based speech restrictions.
The First Amendment was designed to defend distasteful speech, and “stealing valor” is about as distasteful as it gets. This does not mean we should not “defend to our death the right” of those who speak it.
Mr. Ramirez should be disgusted when he looks in the mirror tomorrow morning, but he shouldn’t be looking in a jailhouse mirror.