And just what did the ARDC/”Inquiry Board” Learn in 6th grade civics?

As far as I am aware, there is still a national law that kids in 6th grade have to learn about the US Constiution, and in Illinois, they have to learn about the 1970 Illinois Constitution too which is very, very similar, guaranteeing basic civil rights, human rights and no depravation of life, liberty and property without due process of law (i.e., a summons and complaint PLUS whatever the Illinois state legislature has deemed due process such as properly served 5 day notes in evictions court AND 14 day notice to the respondent and “close relatives” in a petition for incompetency.”

Since there many judges that do not seem to get it (Fabiano, Connors, etc.), and attorneys that don’t seem to get it (Kimberly Timmerwilke McKenzie, Sharon Rudy, Cynthia Farenga, Adam Stern, etc.) I will continue on with Ken Ditkowsky’s suggestion we study the New York Times case, the Alvarez case, etc. in greater detail.

One would think, it being the First Amendment and all, that it would come first and foremost in the minds of everyone that free speech is a highly protected right in this country.  In England and in Europe, and still today in many, many countries in Africa (Egypt) and the Mideast, there is no free speech.  If you criticize a political figure, you go to jail for it.  Women don’t have civil rights.  They are imprisoned for speaking out, being an attorney and representing people for speaking out, etc.–such attorneys in these countries have been put in jail, had their property and even their parental rights terminated–all for speaking out and representing political dissidents that want freedom of speech.

So, for today’s lesson, dedicated to the ARDC and their rubber stamp “Inquiry” Board, another lesson in protected speech:  (by the way, click on Wikipedia today and give them a monthly donation–I did–and I also support the ALCU, Human Rights Watch, Amnesty International, NOW, FM, etc.–plus several war orphans in Afghanistan.)

Background

President George W. Bush signed the Stolen Valor Act of 2005, (18 U.S.C. § 704), into law on December 20, 2006.[1] The Act broadens previous provisions addressing the unauthorized wear, manufacture, or sale of any military decorations and medals. The Act makes it a misdemeanor to falsely represent oneself as having received any U.S. military decoration or medal. If convicted, defendants may be imprisoned for up to six months, unless the decoration lied about is the Medal of Honor, in which case imprisonment could be up to one year.

The law was passed to prevent impostors from “stealing the valor” of soldiers returning from engagements in Iraq and Afghanistan.[2] In 2009 alone, the Federal Bureau of Investigation investigated 200 alleged violations of the Act.[3]

Before the Ninth Circuit held the Stolen Valor Act unconstitutional in Alvarez, other courts had split. For example, the United States District Court for the District of Colorado held the Act unconstitutional, relying on the Supreme Court’s decision in Texas v. Johnson.[4] On the other hand, courts have also upheld the law. In United States v. Robbins, for example, District Judge James Parker Jones, citing the defamation case Gertz v. Robert Welch, Inc., stated, “Properly limited, the speech restricted by the Stolen Valor Act is not ‘speech that matters’ and falls outside the protection of the First Amendment.”[5]

In the instant case, the United States brought criminal charges against Xavier (Javier) Alvarez after he falsely claimed he had received the Medal of Honor.[6] Specifically, after being elected to the Three Valleys Municipal Water District Board, Alvarez introduced himself at a meeting by stating, “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.”[7] Despite this assertion and as the Ninth Circuit stated, “Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a Marine or in the service of any other branch of the United States Armed Forces. In short, with the exception of ‘I’m still around,’ his self-introduction was nothing but a series of bizarre lies.”[8] As part of a plea bargain, Alvarez conditionally plead guilty to the charge, while reserving the right to challenge the law on Constitutional grounds.[9]

In the end, the Ninth Circuit, by adopting the lower court’s language, concluded, “Alvarez ‘live[s] in a world, a make-believe world where [he] just make[s] up stories all the time…. [T]here’s no credibility in anything [he] say[s].'”[9]

Over the dissent of Circuit Court Judge Jay Bybee, Ninth Circuit Court Judge Milan Smith, Jr., joined by Circuit Court Judge Thomas Nelson, held that the Stolen Valor Act was unconstitutional.[10] First, Smith disagreed with Bybee’s conclusion that false facts are not protected by the First Amendment.[11] Second, Smith rejected the government’s and Bybee’s assertion that the court should undertake a balancing of interests approach. “In nearly every case, the false statement will be outweighed by the perceived harm the lie inflicts on the truth-seeking function of the marketplace of ideas. Using such an approach, the government would almost always succeed. However, such an approach is inconsistent with the maintenance of a robust and uninhibited marketplace of ideas,” Smith wrote.[12]

Smith then averred that the court will “presumptively protect all speech against government interference, leaving it to the government to demonstrate . . . the historical basis for or a compelling need to remove some speech from protection.”[13] As the Ninth Circuit would point out in its denial of rehearing en banc, Smith stated that the dissent incorrectly rested its laurels on Supreme Court rulings in defamation cases that false facts did not receive First Amendent protections.[14] Indeed, Smith stated that this was not a defamation case, because even if the act was intended to prevent injury to military personnel, “[t]he right against defamation belongs to natural persons, not to governmental institutions or symbols.”[15]

After review various other categories of speech traditionally subject to fewer protections, Smith concluded that false speech is protected, but “certain subsets of false factual statements” are not.[16] Because the speech did not fall into any of these categories, the Court held that it was protected and applied strict scrutiny. The law failed the test.[17] Therefore, Smith held the law unconstitutional. The government appealed for en banc review and was denied. It appealed the denial, and the Supreme Court granted certiorari.

Oral arguments

The Supreme Court heard oral argument on February 22, 2012.[18] Donald Verrilli, Jr., Solicitor General of the United States, appeared on behalf of the United States. Jonathan D. Libby, Deputy Federal Public Defender, appeared on behalf of Alvarez.

Verrilli spoke first; he began by explaining that military honors touch on the core values of the armed forces, and the Stolen Valor Act simply aims to protect those core values. Almost immediately Justice Sonia Sotomayor asked Verrilli a hypothetical:

During the Vietnam War, a protester holds up a sign that says, “I won a Purple Heart – for killing babies.” Knowing statement. He didn’t win the Purple Heart. As a reader, I can’t be sure whether he did and is a combat veteran who opposes the war, or whether he’s a citizen protesting the war. Is that person, if he’s not a veteran, having received the medal, is he liable under this act?[19]

Verrilli responded by suggesting that such an act would be covered by the Act only if it was “reasonably understood by the audience as a statement of fact or as an exercise in political theater.”[20] If it was an exercise in political theater, the Act would not prohibit it, Verrilli argued.

While Justice Sotomayor found that troubling, the main point of contention was the alleged lack of injury caused by false claims of military honors.[21] Indeed, in nearly all the cases that the United States cited to support the proposition that there is no First Amendment value in falsity, the Court had addressed a false statement that harmed another, such as a defamatory statement. Relying on these cases, Verrilli stated, “[T]his Court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no First Amendment value for its own sake.”[22] Justice Anthony Kennedy immediately retorted:

Well, I’m – I’m not sure that that’s quite correct. It has said it often, but always in context where it is well understood that speech can injure…. You think there’s no value to falsity. But I – I simply can’t find that in our cases, and I – I think it’s a sweeping proposition to say that there’s no value to falsity. Falsity is a way in which we contrast what is false and what is true.[23]

Libby opened the defense argument by emphasizing that the First Amendment is intended to protect personal autonomy. In response to several questions, Libby played on the Court’s discontent with the apparent lack of harm by stating that there is value in falsity “so long as it doesn’t cause imminent harm to another person or imminent harm to a government function.”[24]

Libby took a misstep in the Court’s estimation, however, when he conceded that the Act did not chill any truthful speech. In response, Justice Kagan stated, “So, boy, I mean, that’s a big concession, Mr. Libby. Then you’re saying, you can only win this case if this Court decides that the Gertz statement was a kind of overstatement, an exaggeration, puffery.”[25]

Supreme Court’s decision

On 28 June 2012, a divided Supreme Court held that the Stolen Valor Act’s prohibition against making false statements of having been awarded a military medal violated the First Amendment.[26][27] The justices voting to strike the law could not agree on a rationale.

Justice Anthony Kennedy, writing for a plurality consisting of himself, Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor, said that false statements are not, by the sole reason of their falsity, excluded from First Amendment protection. Justice Kennedy said that Alvarez’s statement – which had harmed no one – was within the protection of the First Amendment, and, therefore, the statute had to be subjected to strict scrutiny, meaning that it had to be necessary to serve a compelling governmental interest and narrowly tailored to serve that interest. The statute failed that test, according to Justice Kennedy, because there was no proof that the public thought less of recipients of military medals because of the existence of charlatans who lied about having received them. Justice Kennedy also said that the proper response to false statements about receiving medals was the issuance of true statements about those who had really earned medals and exposing those who lied about receiving them.

Justice Stephen Breyer, writing for himself and Justice Kagan, eschewed a “strict categorical analysis” as typified by the strict scrutiny standard. Instead, he set out “to examine the fit between statutory means and ends.” Justice Breyer concluded that the statute was unconstitutional because “the statute works First Amendment harm, while the Government can achieve its legitimate objectives in less restrictive ways,” such as “a more finely tailored statute.”

Justice Samuel Alito, joined by Justice Scalia and Justice Thomas, dissented. They argued that false statements about military medals merit no First Amendment protection whatsoever, while recognizing that false statements may be protected when laws restricting them might chill otherwise protected speech. However, the dissenters argued that the Stolen Valor Act does not implicate that concern because lying about alleged receipt of military honors does not relate to any protected expression, and the lies cause harm to those families and individuals who received these medals legitimately.[28]

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