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August 19, 2010
SVA: the narrow issueBy Greyhawk
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?
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?
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."
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.
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.
Posted by Greyhawk / August 19, 2010 12:05 PM | 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.
Furthermore, I will occasionally use satire or parody herein. The bottom line: it's my house.
I like having visitors to my house. I hope you are entertained. I fight for your right to free speech, and am thrilled when you exercise said rights here. Comments and e-mails are welcome, but all such communication is to be assumed to be 1)the original work of any who initiate said communication and 2)the property of the Mudville Gazette, with free use granted thereto for publication in electronic or written form. If you do NOT wish to have your message posted, write "CONFIDENTIAL" in the subject line of your email.
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