Maybe Lies Aren’t Protected Speech After All…

This week, in United States v. Robbins (W.D. Va.); a district court disagreed with previous court opinions this year holding that the Stolen Valor Act, which makes it a criminal act to falsely represent that one had been awarded a military honor for valor on the field of combat, was a violation of the First Amendment guarantee of free speech:

“…Ronnie L. Robbins produced and distributed campaign material that [falsely] stated that he was a recipient of the Vietnam Service Medal and the Vietnam Campaign Medal. Robbins also wore the Vietnam Campaign Medal, the Vietnam Service Medal, and the Combat Infantryman’s Badge on his military uniform at events he attended as a member of the VFW honor guard. Additionally, Robbins allegedly provided falsely altered documentation to the VFW misrepresenting his military service and asserting that he had been awarded the Vietnam Service Medal and the Vietnam Campaign Medal. Finally, it is alleged that Robbins provided altered documents to a local newspaper corroborating that he had received those medals….

“The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” Despite this broad language, there are recognized categories of speech that are excluded from this protection…One of the recognized categories involves falsity. While “there is no such thing as a false idea” undeserving of protection, Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974), “there is no constitutional value in false statements of fact.” Id. at 340…. The general exclusion of false statements from First Amendment protection is consistent with Supreme Court cases dealing not only with defamation, but also with fraud, see Ill. ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612 (2003) (“[T]he First Amendment does not shield fraud.”), and commercial speech, see Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976) (holding that false statements in advertising are not protected).”

As you may gather from my earlier post on the contrary decisions, I think the West Virginia court is correct, and the previous courts considering this issue misguided. Eventually, I assume, the U.S. Supreme Court will have to decide whether the military, the nation and the nation’s heroes are sufficiently harmed by dishonest individuals using medals of valor to inspire undeserved, respect, prestige and trust to justify a statute criminalizing their acts.

The only question in my mind is whether the vote will be 9-0, or something less. This should be an easy call, legally and ethically.

4 thoughts on “Maybe Lies Aren’t Protected Speech After All…

  1. This is a good thing, Jack. But it also raises the ongoing issue of just what the First Amendment is and what its intentions are. Those intentions are pretty well documented by the Framers themselves; the protection of free and open discourse in public affairs among a free, voting citizenry. Somehow, in the course of events, judicial activists have steadily eroded this concept and taken it into territory that’s either ludicrous, depraved or downright insane.

    “Stolen Valor” is only a small example in the overall arena. But it’s important enough to us veterans. Medals and honors to an individual or a unit are things that, in the final tally, all self-respecting veterans share together. When someone falsifies military honors (or, in Kerry’s case, seeks them falsely while leading men under combat conditions) and does so for personal gain, it becomes a big issue with us. It should be with everyone.

  2. Jack,
    A small point of consideration: italics are irritating to read for more than a few lines, yet the Scoreboard seems to have become enamored with them of late. If you’re quoting something — use quotation marks, if you’re emphasizing — use them sparingly. As far as quoting AND italicizing at the same time, that’s just poor writing ..

    -Neil

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