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August 18, 2010
The Right to Lie (2)By Greyhawk
A brief look at the First Amendment in its entirety:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Let's edit that down to what matters here: "Congress shall make no law abridging the freedom of speech." Good stuff, simple and to the point. But had we somehow maintained a strict interpretation of that rule the Republic likely wouldn't have survived a decade.
Some "freedom of speech" is denied. The age old "fire in a crowded theater" argument, for example - or libel, false advertising, and fighting words - to name a few more. But generally, some compelling greater interest - public safety, etc. must be a factor in imposing such a limit on speech.
However, as Judge Klausner states in denying the motion to dismiss on First Amendment grounds in the Alvarez decision (defendant had stated "I was awarded the Congressional Medal of Honor"), "Whether one actually received a military award is easily verifiable and not subject to multiple interpretations..." therefore "this Court is presented with a false statement of fact, made knowingly and intentionally by Defendant..." and "Such lies are not protected by the Constitution."
He cites a Supreme Court decision supporting that claim:
Here's the pertinent quote from the Supreme Court's Garrison decision:
For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 . Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.
So, the knowingly false statement does not enjoy constitutional protection. But along with that we must express a legitimate concern: we don't grant the government broad power to determine what is truth or what is a lie.
And here we turn to Judge Blackburn's Strandlof decision:
That The Stolen Valor Act is DECLARED to be facially unconstitutional as a content-based restriction on speech that does not serve a compelling government interest, and consequently that the Act is invalid as violative of the First Amendment.
The judge ruled that the government could demonstrate no compelling interest in declaring an individual's knowingly false claims to having earned military decorations illegal, and that such a test must be applied to any restriction on speech. This presents an obvious conflict with the premise that the knowingly false statement does not enjoy constitutional protection - and that conflict must be resolved. We should be concerned with an either/or type decision in this case, as erosion of either of those concepts is of obvious concern. But we need not sacrifice one to preserve the other.
With SVA Congress (and the President) made a very narrowly defined law regarding speech that is inarguably a lie, and inherently non-political. One would be hard-pressed to find some claim less worthy of constitutional protection. (Certainly the confidence of an overwhelming and bi-partisan majority of members of Congress that they were acting morally, legally, ethically, in their purview and in the interests of their constituents in this case is some evidence of that. The subsequent lack of any significant public "anti-SVA" sentiment speaks for itself.) But we must acknowledge that while lies are generally held to be unprotected speech (and SVA addresses a specific lie that no reasonable person would defend or claim a "right" to tell) SVA appears in important ways to be an unprecedented law. (An actual restriction on a "pure lie.") While some might express concern over unpredictable future attempts to pass similar legislation ("What, will they make it illegal to lie about my weight next?") this case - if decided on narrow terms (per the Alvarez example) - does not "open the door" to such hypothetical abuses. (Which, were they to occur, could likewise be settled on narrow definitions.) On the other hand, if rejected by the judicial branch on broad terms (per Strandlof), speech previously presumed to be unprotected will be afforded protection. The widely accepted concept that a knowingly false statement does not enjoy constitutional protection will be moot. Hence, (and speaking here as someone who is repulsed by those who make fraudulent claims to unearned military awards but is not an enthusiastic supporter of the SVA) the Alvarez decision appears to be the best option.
Sometimes second-best options are chosen - and not everyone would lose were that the case here. Strandlof could some day stand as law of the land. Potential repercussions from that are varied and unpredictable. But advocates of free speech in its purest form will rejoice, as will anyone who values a newly acquired and unassailable right to lie.
Posted by Greyhawk / August 18, 2010 8:24 AM | Permalink
November 26, 2010
I think anyone who's ever pondered the "comment" option - once only available on blogs and bulletin boards, now ubiquitous on almost any web site - will appreciate this:
The so-called faculty of writing is not so much a faculty of writing as it is a faculty of thinking. When a man says, "I have an idea but I can't express it"; that man hasn't an idea but merely a vague feeling. If a man has a feeling of that kind, and will sit down for a half an hour and persistently try to put into writing what he feels, the probabilities are at least 90 percent that he will either be able to record it, or else realize that he has no idea at all. In either case, he will do himself a benefit.
That's wisdom from the past, captured for posterity at the US Naval Institute, shared via the web on the institute's 137th anniversary.
From their about page:
"The Naval Institute has three core activities," among them, History and Preservation:
The Naval Institute also has recently introduced Americans at War, a living history of Americans at war in their own words and from their own experiences. These 90-second vignettes convey powerful stories of inspiration, pride, and patriotism.
Take a look at the collection, and you'll see it's not limited to accounts from those who served on ships at sea, members of the other branches are well-represented.
I'm fortunate to have met USNI's Mary Ripley, she's responsible for the institute's oral history program (and she's the daughter of the late John Ripley, whose story is told here). She also deserves much credit for their blog. ("We're not the Navy nor any government agency. Blog and comment freely.") We met at a milblog conference - Mary knew (and I would come to realize) that milbloggers are the 21st-century version of exactly what the US Naval Institute is all about. Once that light bulb came on in my head, I mentioned a vague idea for a project to her - milblogs as the 21st century oral history that they are.
"Put that in writing," she said (of course - see first paragraph above!) - and here's part of the result.
Shortly after the first tent was pitched by the American military in Iraq a wire was connected to a computer therein, and the internet was available to a generation of Americans at war - many of whom had grown up online. From that point on, at any given moment, somewhere in Iraq a Soldier, Sailor, Airman or Marine was at a keyboard sharing the events of his or her day with the folks back home. While most would simply fire off an email, others took advantage of the (then) relatively new online blogging platforms to post their thoughts and experiences for the entire world to see. The milblog was born - and from that moment to this stories detailing everything from the most mundane aspects of camp life to intense combat action (often described within hours of the event) have been available on the web...
And et cetera - but since you're reading this on a milblog, you probably knew that. And you know that milblogs aren't just blogs written by troops at war, that many friends, family members, and supporters likewise documented their story of America at war online in near-real time, as those stories developed.
The diversity in membership of that group is broad, the one thing we all have in common is the impulse to make sense of the seemingly senseless, and communicate the tale - for each of us that impulse was strong enough to overcome whatever barriers prevent the vast majority of people from doing the same. Everyone at some point has some vague idea they believe should be shared - we were the people who, from some combination of internal and external urging, found and spent those many half hours persistently trying to write it down.
But where will all that be in another 137 years? Or five or ten, for that matter. That's something I've asked myself since at least 2004 - when I wrote this:
Membership in the ghost battalion has grown in the years since, and an ever growing majority of those abandoned-but-still-standing sites are vanishing. Have you checked out Lt Smash's site lately? How about Sgt Hook's? If you're a long-time milblog reader you know the first widely-read milblog from Operation Iraq Freedom and the first widely-read milblog from Afghanistan are both gone from the web. If you're a relative newcomer to this world you may never even have heard of them - or the dozens upon dozens of others who carried forth the standard they set down.
If you have a vague notion that something should be done about that, (a notion I've heard expressed more than once...) then you and I and the good folks at the US Naval Institute are in agreement. Preserving the history documented by the milbloggers is just one of the goals of the milblog project, the once-vague idea that we're now making real.
And it's a big idea, if I say so myself - too big to explain in one simple blog post, so stand by for more. Likewise, it's too big a task to be accomplished by just one person. So if you're a milblogger (and exactly what is a milblogger? is a topic for much further discussion on its own) I'm asking for your help. All I'll really need is just a little bit (maybe just one or two of those half hours...) of your time, and your willingness to tell the tale.
We've already made history, it's time to save it.
(More to follow...)
The Mudville Gazette is the on-line voice of an American warrior and his wife who stands by him. They prefer to see peaceful change render force of arms unnecessary. Until that day they stand fast with those who struggle for freedom, strike for reason, and pray for a better tomorrow.
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