Should a deputy sheriff be barred by his boss from writing letters to the editor of the local paper with his strong and unorthodox views on criminal justice? That’s the question raised in a new First Amendment lawsuit filed in federal court in San Francisco, reports Amy Gittelsohn for the Trinity Journal. The plaintiff, for example, is critical of the war on drugs and thinks jury nullification has its merits.
Two highly regarded First Amendment scholars at the U.C. Davis Law School have provided some locally (and generally) needed reminders about the difference between blockading others’ passage from place to place and other exercises in civil disobedience, and activity such as picketing which informs without obstructing or interfering with others’ rights. The new article is summarized by William Creeley, legal director of the Foundation for Individual Rights in Education, writing in The Moral Liberal. Continue reading
The transcript of yesterday’s oral argument before the U.S. Supreme Court in U.S. v. Alvarez, the Stolen Valor Act case, is here. Four relevant questions unasked by either the justices or the parties or, apparently, the amici curiae on either side:
Evidence of Harm
1. Stolen prestige: Where is the evidence that the Medal of Honor or other military decorations are less respected by the public because they have been falsely claimed? Has that question ever been polled or otherwise subjected to social science inquiry?
2. Stolen esteem: Where is the evidence that authentic recipients of the Medal of Honor or other military decorations are less admired by the public because their awards have been falsely claimed by others? Has that question ever been polled or otherwise subjected to social science inquiry?
3. Stolen mental health: Where is the evidence that authentic recipients of the Medal of Honor or other military decorations are mentally harmed in any clinically measurable degree, as for example as in PTSD, as distinct from being irritated, offended or angered by the fact their awards have been falsely claimed by others? Has that question ever been subjected to psychological or psychiatric research?
A Preventive Alternative
4. Instead of criminalizing false claims to military honors, why not make them easily discoverable as a deterrent? In today’s hearing Justice Scalia briskly dismissed the idea that the risk of being discovered might discourage such behavior.
You know when there is a sanction in place you think twice before you tell the lie. But if there is no sanction except you might be exposed, who’s going to expose you? That sanction already exists, and there are a lot of people nonetheless who tell the lie. You really expect the government to hire investigators to go around the country outing people who falsely claim military honors? That’s not going to happen.
(Counsel for Alvarez): Well, Justice Scalia, isn’t that exactly what’s happening right now with this law? Because the law is on the books, the law is sending FBI agents out to investigate these allegations. How do they find out about it? It’s because it’s recorded. Individuals hear the statement and they think it may be false. They investigate it. And — and, and conduct their own investigations. So that’s what happens. And that’s what’s supposed — that’s — that’s the whole idea of more speech.
The “more speech” prescription invokes the foundational Supreme Court case of Whitney v. California (1927), upholding a state law criminalizing the organization of labor with the goals of syndicalism. In his famous opinion concurring in the result but reading more like a dissent, Justice Louis Brandeis stated:
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.
The majority’s conviction that speech and organizing that the government saw as having a “bad tendency” could be punished without offending the First Amendment was later abandoned by the court. With respect to Alvarez, meanwhile, the “more speech” approach is being pursued in any event, by a congressman looking into the possibility of a Pentagon-maintained database simply listing all military awards winners—a lookup registry for those wanting to check such claims.
Seniors at La Jolla High School will no longer have to keep their comments about the school positive when they paint them on a campus bench dedicated to their expression. The principal’s ignoring of their speech rights cost the district $22K and change. Emily Summars reports for the Student Press Law Center. Continue reading
Miles Gloriosus, the war hero wannabe, is a figure of comedy at least as old as the Roman playright Plautus—a stock figure endlessly reincarnated in imaginative literature right up to the present. Now Congress says that the real thing—actually claiming combat glory you never even came close to—is a crime. Others say that it can’t be punished thus under the First Amendment, which is routinely held by the courts to shield really unspeakable things that somehow get spoken. Courthouse News Services summarizes the arguments pro and con as the validity of the Stolen Valor Act heads to the U.S. Supreme Court.
The decision of San Diego District Attorney Bonnie Dumanis not to prosecute a quartet of Occupy hecklers at Mayor Jerry Sanders’s State of the City speech recently contrasts with Orange County D.A. Tony Rackauckas’s successful prosecution of a group of Muslim students who persistently interrupted a speech by the Israeli ambassador to the U.S. at UC Irvine two years ago. Some Muslims (and others) might assume that the disparate treatment was a matter of simple bigotry, but the more likely explanation is one of small but telling differences. Continue reading