Alexander Jordan, 2002-2012
In US v. Alvarez, the U.S. Supreme Court upheld the 9th Circuit’s ruling that the Stolen Valor Act, which made it illegal to claim military honors that one has not in fact received, was unconstitutional. There is, the courts say, a Constitutional, First Amendment right to lie. Fraud—using lies for monetary profit, is already a crime, the courts argue, and so is slander. Making up stories about yourself and others may be unwise, annoying, even hurtful. Still, it is protected speech; so sayeth a majority of the U.S. Supreme Court, and it is now the law of the land.
This was a bad ruling, and I was surprised at it. Briana Augustenborg shows why.
One day this year she shared a story with a co-worker about a little 10-year-old boy she knew who was terminally ill with leukemia. The boy, Alex, was a big fan, she said, of Eagle Valley (Colorado) High School’s football team. The colleague, a woman named Holly Sandoval, had a son that played on the team, and she offered to share the story with her son and get the team to sign a football for Alex.
Soon the team was making its terminally-ill fan a project of charity and inspiration. Team members spread his story and posting Facebook messages about him on the team’s page and elsewhere. Augustenborg then approached Jordon Lyles, a disc jockey for KSKE radio. He was so moved by little Alex’s story that he began dedicating songs to Alex. Pam Boyd, editor of the Eagle Valley Enterprise, met with Augustenborg for an interview. The interview culminated in an Oct. 25 front-page story about Alex, which was picked up by other newspapers in the state. Briana asked that Alex’s last name, Jordan, be omitted at the request of his parents, and her wish was respected. She also was asked if she was collecting contributions for the family. No, Augustenborg said, for the family was not in need of money; the outpouring of public support was what was most important. Alex’s spirits needed to be kept up for his dire battle with cancer.
Alex got his team-autographed football. Then, before the big Eagle Valley Devils game that Alex was supposed to attend, Augustenborg told his disappointed supporters that Alex had suffered a setback, a seizure. Later, on Oct. 25, Augustenborg announced via Facebook that, sadly, the brave child had died. A touching obituary, with a photo and text composed by Briana, ran in the local paper.
The first game played after Alex’s death saw students and parents in the stands wearing orange in his memory, and the football team itself wearing out-of-uniform orange socks. The cheerleaders wore orange jerseys, and at half-time, they spelled out “ALEX” with their pompons.
Alex would have loved it. As you probably have surmised by now, however, there wasn’t any smiling Alex looking down from Cancer Victim Heaven, because there was never any Alex Jordan at all.
Eventually (and rather late in the saga), people did some checking. Briana Augustenborg finally admitted that she made the whole thing up, and then kept the hoax going by launching a Facebook page and doing media interviews. She has refused to say why. Everyone in the town, the school, the media and the team that poured out their heart to little Alex Jordan feels like a complete fool. Because Augustenborg didn’t make any money out of her little joke, however, she cannot be charged with any crime. After all, she was just exercising her First Amendment right of free speech.
In their dissent in Alvarez, three conservative Justices (Alito, Scalia, and Thomas) of the Supreme Court explained why in their view lies that fell short of fraud should not be immune from prosecution and punishment:
“Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value… The right to freedom of speech has been held to permit recovery for the intentional infliction of emotional distress by means of a false statement… It is well recognized in trademark law that the proliferation of cheap imitations of luxury goods blurs the “‘signal’ given out by the purchasers of the originals.” In much the same way, the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are, and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps. Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country’s top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags…. Tellingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none.”
Society’s ability to punish hoaxers ( that is, cruel, attention-seeking, time-wasting, trust-killing jerks) like Briana Augustenborg would, however, chill her brand of callous pastime, whether done for laughs, kicks, or just to show that everybody else is gullible. The internet has created fertile grounds for people like this, and there is absolutely no reason not to send the clear societal message that we won’t tolerate having our best instincts, like sympathy, caring and kindness, turned against us to make us cynical and afraid.
Other than the fact that the Supreme Court says we can’t, that is.
Note: Yes, “Simpsons” fans, the parallels with the time Bart used his walkie-talkie to fool the whole town into thinking that a little boy named Timmy O’Toole was trapped down a well have indeed occurred to me.
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Pointer: New York Times
Facts: Eagle Valley Enterprise
Source and Graphic: Westword
Ethics Alarms 
Interesting ruling from the Supremes regarding theft of reality (lies), especially in respect to Stolen Valor. While it may be unreasonable or beyond the Law to remove life or liberty for one who lies, Etiquette is free to restrict the pursuit of happiness on those who gratify themselves in such a manner; the cut sublime, the cut infernal and the deadly cut direct will deprive blackguards of that which they value most, the attention of their fellow human.
Growing up, the value of Truth was driven home by my Dad when he said there are two sorts of people he loathed – thieves and liars. Out of the two, he could stand thieves only a little better because they take only material things, and may confess to theft. Liars are worse because they are not above theft, and will surely lie about it.
This is what happens when a legal system rejects its own cultural foundation and knocks around blindly on a basis of political correctness- a philosophy of personal unaccountability. Right on the very wall of the Supreme Court building was the answer to this problem, staring those “justices” right in the face. Thou shalt not bear false witness.
I am not really sure it should be *illegal* to do a hoax like this. Publicly shunned, sure (etiquette enforcement, like veritas suggests above). But hoaxes are a longstanding tradition in American history, for better or worse, and arise from our freedoms and free will to make questionable choices — look up the Great Moon Hoax of 1835 — some people were quite upset about that – should the writers/newspaper been prosecuted for it? And what about when people lie and are obviously not being serious about it, but some people are so naive to believe it? Should these people fear prosecution and lead to chilling of sarcastic speech? Should Mark Suben, a district attorney in New York, be prosecuted for lying about whether he was briefly a porn actor in the 1970s (a recent news story)?
What Briana Augustenborg did was despicable. It was also nowhere near the first such story like this, though. The reaction of the students and community has been quite laudable.
Your arguments consists of two classic rationalization for unethical conduct: the most common and pernicious (“Everybody Does It”), and the worst one of all (“It’s not the worst thing.) You’ll have to do better than that. I’m not saying there aren’t arguments for your position that are strong, but these aren’t among them.
jack, my rationalization was not intended to be that “everybody does it”. God forbid EVERYONE did what Briana did, society would cease to function. What I tried to suggest is that this longstanding tradition of hoaxes in the United States arises out of the freedom of expression that Americans have, that for better of worse this is a necessary side effect of this freedom, and one we’ve been willing to accept to protect our 1st amendment rights. if we chill hoaxers, we probably chill more legitimate forms of free speech. i understand your position to be that outlawing hoaxes would only “chill” hoaxers, but the idea of “chilling” recognized by courts is that such barriers may discourage legitimate behavior, so we don’t enact the barriers at all.
I’ve long been interested in internet hoaxes and have been involved in debunking some to a small extent. Searching Briana’s story led me to your interesting post. Things like lonelygirl15 and Aliza Shvarts were hoaxes, but were also a form of art. This was not art, though.
If you look at the Briana-Alex Jordan story, there are tons of red flags everywhere that should have led people to dismiss her story. It took more than a few gullible people for it to take off. I’m not blaming them. But long before the obituary ran (which was so fake its incredible people fell for it, though clearly many people were not believing it by that point), there were many signs that the story was made up. The facebook page was really ridiculous, and most of its members were high school students who were easily fooled. The hoax went from kernal to Alex’s “death” in about 5-7 days, so there was very little time for common sense to prevail, which is pretty typical of these things that get so far. People think its a longstanding story, when its really only quite new. I hope someone interviews Briana soon to figure out why she did it. I am pretty sure it being illegal wouldn’t have deterred her.
Augustenborg’s actions should be condemned but to say they are illegal is stepping over the line because she did not profit from her actions. If you claim a lie by itself is illegal you start down a never ending road because you can’t legally define the term “lie”. For instance, if a statement contains only a fragment of truth then it can’t be called a lie. Then too, when is a exaggeration a lie and when is it only sarcastic? It seems to me it is better to leave lies to the field of ethics rather than the field of law.
1. The article never once said or implied that her actions were illegal.
2. A lie is very easy to define. It is a statement made with the intention of deceiving another.
3. You don’t know what a lie is. Don’t feel bad; most people don’t. But for example, “if a statement contains only a fragment of truth then it can’t be called a lie” is completely, utterly, beyond any question wrong.
4. An exaggeration is a lie when it is a) intentional and 2) designed to deceive. Clear as day.
5. Lies are already a matter of law. Fraud, of all kinds; perjury; lying to law enforcement officers. Lying on affiavids and official documents.
I appreciate comments, I really do. But you based this on one assertion I did not make, and then made assertions of your own that minimal research (even without leaving this blog) would have shown was not true.
I was responding to Milowent’s comments. 1. I am not trying to be aggressive but it has been my experience that nothing concerning law is “clear as day”. 2. Would most people consider a joke, which is an intentional exaggeration, a lie? I think not. By the by, I believe the application of ethics is the only way out of the quagmire in which we now find ourselves.
I could not agree with your last statement more.
A joke is intended to cause amusement, not to deceive.
Final thought… amuse or deceive…it depends on which side of the joke you are on, hence the grey area of law. Have a good Thanksgiving.
even “Take my wife … please!” was hopefully a joke. OR was it a hoax? Was he really giving away his wife??
happy turkey day to all.