Free Speech And Fraud
An interesting case-in-point raised by this article in The New York Times:
When Xavier Alvarez was asked to say a few words about himself at a meeting of a California water board last summer, he decided on these: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”
Only the last three words were true. Mr. Alvarez never served in the Marines and was certainly never given the Medal of Honor, the nation’s highest award for valor in action against an enemy force.
He is, then, a liar. Is he also a criminal?
Mr. Alvarez is scheduled to go on trial next month in federal court in Los Angeles for violating the Stolen Valor Act of 2005, which makes it a crime to lie about having received certain medals.
Craig H. Missakian, the prosecutor in the case, is a brainy and literate fellow. “It’s a superinteresting area,” he said, beginning a discussion of Pericles’ funeral oration and the importance of honoring the legacies of those fallen in battle.
“You don’t want to stifle speech about opinions and ideas,” Mr. Missakian said. “But Congress, and rightfully so, recognized the great sacrifice that people awarded the Medal of Honor made on behalf of their country. To the extent we have phony Medal of Honor winners running around like Alvarez, it dilutes the value of their sacrifice.”
That rationale is reflected in Congressional findings. The law, Congress said, is meant “to protect the reputation and meaning of military decorations and medals.”
As one law professor notes, there is a First Amendment concern here:
“If the government cannot under the First Amendment compel reverence when it comes to our nation’s highest symbol,” asked Ronald K. L. Collins, a scholar at the First Amendment Center in Washington, “why then can it compel reverence when it comes to lesser forms of symbolic expression?”
Eugene Volokh, though, says that the law isn’t really on Alvarez’s side:
“On the other hand,” Eugene Volokh, a law professor at the University of California, Los Angeles, wrote on his blog, The Volokh Conspiracy, “the legal issue is not as clear as one at first might think.” He cited the somewhat muddy Supreme Court jurisprudence in this area and an October decision of the Washington Supreme Court that struck down a state law making it illegal for politicians to lie about candidates for public office.
“The best remedy for false or unpleasant speech is more speech, not less speech,” Justice James M. Johnson of the Washington Supreme Court wrote. It is hard to muster much sympathy for Mr. Alvarez. But it is easy to envision cases in which laws to protect symbols are misused.
The more important question, as I see it, is what harm has Mr. Alvarez actually caused here ? Yes, he’s a jerk and yes he offended veterans, but, based on the facts presented, its clear that nobody lost money because of his misrepresentations, nobody had any of their rights violated or was deceived by him in a way that caused them to suffer a quantifiable case.
Given that, why should he be subject to a criminal prosecution for being stupid ?