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Thursday, June 28, 2012

Stolen Valor Act: Dumb but not sufficiently illiberal?

Most of y'all are probably browsing the 190 page monster of the Healthcare Cases, but I'm here to interrupt with some news about Alvarez, the stolen valor case. It's both a bit snoozy and breezy  -- except for the dissent, where Alito blithely smacks down an academic amicus brief from UCLA's Jonathan Varet. Aside from that brief episode of fireworks, and the somewhat surprising claim made by Alito that we have witnessed an "epidemic" of people falsely claiming military honors, the various opinions are, at first glance, well, bland. The majority, by Kennedy, is not especially persuasive at distinguishing Section 1001 federal crimes from what's at issue here. Neither statute requires any kind of harm, real or threatened. So if you want to throw out one, it seems you have to throw out the other. That seems kind of drastic; the government should probably be able to save itself the trouble of dishonest interlocutors. I'm not saying I would pass both those criminal laws, as drafted, myself. To my mind, the stolen valor statute is a dumb use of the criminal sanction, and legislators should have sought less drastic measures to advance their goals besides plopping more drivel in the Title 18 bucket. But even though it's dumb, it's permissibly dumb.

I don't find myself moved by the slippery slope problems the challengers to the statute make with respect to the kind of breathing room that true speech needs in terms of having some false speech protected. The fact that we all err on the road to truth in the market of ideas is largely irrelevant here because of the mens rea requirements. [Update: I should have thought more of the relevance of the satire issue, which I think is knowingly false speech that's still critical for long term health of democracy; I flag but ultimately disregard that as a useful but not on these facts applicable concern.] So, put aside the truthiness interest, and that leaves an autonomy interest to consider, presumably the sort that Varat was getting at in his amicus brief that Alito batted down. I get that. That interest seems worthwhile and important up to a point. But, as I tried to argue in Retributive Justice and the Demands of Democratic Citizenship, the autonomy interest with respect to criminal legislation has at least two dimensions: the negative one (the right to be let alone by the government) and the positive one (the right to engage in democratic self-government). 

To my mind, this statute was not so illiberal that it doesn't deserve (as a moral matter) to be allowed on the books. I suppose such sheepish support probably puts me with the dissenting 3 (certainly not my favorite company: CT, AS, and SA).  Not that anyone's asking but were I in a position to have upheld the statute, it would have been with much less rhetorical bombast. More references to Holmes and emphasis on the fragile asininity of democracy and less patriotism. But maybe I'm wrong. I'll need to think it over some more.

Posted by Dan Markel on June 28, 2012 at 02:01 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink


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Prof. Markel:

Why is there any need to gauge whether the statute is "so illiberal that it doesn't deserve (as a moral matter) to be allowed on the books"? Why can't it just be a First Amendment analysis? Either the statute is protected speech or it's not. If the former, engage in strict and exacting scrutiny. If the latter, rubber stamp it and move along.

This case was in the former. Check with compelling governmental interest. Not so much with least restrictive means. Done.

Why should there be any need to go into how much of an autonomy interest there might be in such false speech?

Do you think that such philosophical debates were behind the Amendment's ratification? Surely not. What about whether judges should be able to debate such subjective data when deciding what speech can be criminalized? Doing so only threatens future speech based on how much intrinsic value one judge might believe it could (or should) have.

All of this is a roundabout way of saying that I believe your philosophical analysis could be very dangerous if the government is to be truly limited with how it can criminally proscribe certain speech based on content. Perhaps it should not be so limited (as you seem to be leaning), but that is an argument for changing the amendment itself.

Posted by: Joshua | Jun 28, 2012 2:37:02 PM

Joshua, good comments and questions. Thanks. The post is meant to be a way of thinking through what's at stake with this statute. My sense is, I don't think there's a ton; either way, the republic endures with few flies on it.

I had a similar question come up on FB and there came to the conclusion that there could be constitutional reasons (say, for example, respect for precedent) for striking down the law that are mostly independent from the question of how we should evaluate the political morality (or liberalism) of the statute. The reason for considering the political morality of the statute is that moral agents must always consider their reasons for action. And even for judges, the universe of reasons for action are not always only legal reasons for action (or ruling).

On the least restrictive means thing, I think you're right about there being other options but presumably the same argument would lead you to strike down Section 1001 too, and perhaps lots of other criminal legislation? So I guess it depends on what your baseline is for permissible criminal legislation. I tried, in the paper to which I linked, to figure out a framework for thinking that issue through. And the comments about the stolen valor statute in the original post are meant to roughly reflect some of my considerations about that, and less the strictly constitutional issue.

Thanks again for your comments.

Posted by: Dan Markel | Jun 28, 2012 4:59:10 PM

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