SVA: the narrow issue

A quick acknowledgment up front: there are broad issues at stake in any court examination of the Stolen Valor Act, and "slippery slope" arguments to be made against any broad decision. I'm familiar with those arguments for both sides in this case, and am concerned - as anyone vaguely familiar with the rights enumerated in the U.S. Constitution should be - with any push in any direction down any of those slopes.

All that's why I favor a very narrow decision on SVA. While the Ninth Circuit majority in ruling on Alvarez insists they've made a narrow decision it appears otherwise. Here's a look at the very legitimate concerns raised by the SVA, and why the Ninth's majority ruling is wrong (and in spite of their declarations to the contrary, broad).

1. Does Congress have an interest, or are they "sticking their noses where they don't belong"? "Yes" to the first. (Something the Ninth acknowledges and dismisses at the conclusion of their decision.) A key point (and one many interested members of the public appear to overlook) on the SVA - it applies only to individuals making specific claims to have earned medals. While medals represent something less tangible (more on that later), the actual medals in question exist because Congress has authorized them. This does not imply that Congress is the ultimate authority, merely that they are within their rights to act. In this case, they acted to restrict speech - so likewise, the courts have an obvious interest as a check on Congress. (However, the Ninth's majority expresses concern that Congress may next declare it illegal to lie about your weight on Facebook - but this is why that argument fails. Yes, we should all be concerned about any congressional effort in that direction, and would welcome the court's check on any such action, but SVA is hardly step one.)

2. Are service members "harmed" by those making false claims to medals?
Here's an important point - none do what they do in order to earn medals; further, few will say they deserve the recognition they earn. But the medals authorized by Congress represent society's appreciation for what a service member has done. What the recipient thinks of that recognition, or whether they feel they've "earned" it or not is somewhat beside the point. Opinions of those individuals who've served are varied, as are opinions of those in the larger society they serve. One contributing factor to that diversity of opinion is that it's a tough call for those who defend free speech to endorse some restriction on free speech (at least a tougher decision than for those who simply enjoy free speech). That said, several (including the nation's largest) veteran's groups endorsed the Stolen Valor Act. (An excellent history of the grassroots development of the Bill at that link. Notably, congressional reluctance to take up the issue was one of the first obstacles to that effort.) Some even consider it too weak - "In October 2008, The American Legion passed a resolution that urged Congress to make Stolen Valor Act crimes punishable as felonies - not misdemeanors..."

To be clear - the final "vote" on this issue does not belong to these groups. (In fact, I reject any "chickenhawk" argument that implies only those who've served have a right to an opinion.) But the concern is expressed and the perception of harm - a grievance - clearly exists.

3. Is a known lie constitutionally protected speech?
Based on multiple Supreme Court rulings (cited by the lower court and rejected by the Ninth), a lie is not protected. (See also the dissenting opinion here.) But that's not the same as saying "it should be illegal to tell a lie" or even "we should pass laws against lying" - statements I generally disagree with, and suspect the authors of the Constitution would, too. Most lies are petty, everyone lies, and how an individual deals with and responds to known liars - those whose word they can't trust - should mostly be left up to the individual (or society). So, while there are ample cases of legal restrictions on speech, SVA appears to be an unprecedented law - a restriction on uttering a known lie regardless of motive and/or circumstance. (But not without some discretion in enforcement - contrary to popular myth, exceptions for Halloween, theater/television/movie performances, etc. exist.) Perhaps it is unprecedented - only if we insist that the speech in question is otherwise harmless.

4. Should we grant Congress broad power to decide/declare what is "truth" and what is a "lie"? Absolutely not. But I have no concerns on this point with regard to SVA. There is no significant "gray area" in whether or not the statement "I got a medal" is true. Hence, that's not a distinction being made by the government, and SVA is not an example of Congress defining "truth". As the lower court ruled in Alvarez, "Whether one actually received a military award is easily verifiable and not subject to multiple interpretations." That in turn is an acknowledgment of fact, and not an example of a judge defining or determining (by rendering an opinion) truth - which in most cases a judge must do. But while I can provide several examples of less well-defined 'truths' for which I appreciate the opinion of the Court, it is difficult to imagine a case where truth is more clearly defined - or where a court's opinion is less needed. Hence, a court rejection of SVA on these grounds goes beyond "checking" Congress and establishes inherent doctrine that only a court can declare something to be true or false. While we respect the courts as the ultimate legal arbiter of truth in those countless gray areas (and a court ruling in favor of SVA would not equate to relinquishing that authority) this particular example needs no deeper examination and the courts need not fear encroachment where none exists. In this regards the lower court was right and the Ninth has far overstepped its bounds.

5. This brings us to is SVA addressing a trivial issue? If not already clear the answer is no. We've already noted the various veterans groups that perceive harm from frauds. Beyond those concerns, society (whether acknowledged by individuals or not) attaches value to actions of service members, whose role is to protect the rights and freedoms of others. That value can't be quantified, but there's an obvious (and ironic) proof it exists and is considerable: it's exactly what motivates every fraudulent claim to military honors - of which there are many. Against this we consider those rights and freedoms so defended (free speech, for one) that also have immeasurable value that can't be trivialized. Beyond examining the relative values of the two, the potential harm from any action must be weighed. It's tempting to portray the issue as one of free speech versus the rights of its defenders...

6. Except... that's not the issue, and portraying it as such would be an egregious error. This is the issue: We don't restrict speech without strict examination of some compelling "greater good."
So here's the ultimate question: does society value the meaning represented by the medals given in recognition to those who risk their lives defending its freedoms enough to accept a law placing a restriction on a type of speech previously considered unworthy of protection?

I say "yes" - with no hypothetical future examples endorsed. For reasons stated above that would not be a precedent-setting decision. The Ninth's majority ruling says no. They claim not to be granting a broad "right to lie" - but based on where they've set the bar in this case it's difficult to imagine an example of a pure lie that they might consider unworthy of protection.

But I wrote this in the sidebar of this website seven years ago:

I fight for your right to free speech, and am thrilled when you exercise said rights here.

So feel free to let me know if I'm wrong.

(More here.)

Added: given the broad ruling on Alvarez, here's a repeat of an earlier observation on Strandlof:

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.