It remains, in my observation, a tremendous disservice to the idea of an informed and engaged citizenry, that the U.S. Supreme Court doesn’t allow cameras or live broadcasts during arguments. There is no more interesting debate in all of government than the ones at the U.S. Supreme Court.
Today’s arguments about whether it should be a crime to claim military service and honor when none exists could spawn a more interesting public debate than anything in the public arena over the last few weeks.
As it is, we’re left with only the transcripts of today’s hearing (which you can find here).
As in most matters of suppressing speech, it provided an opportunity for the justices to play “what if?”.
During the Vietnam War, a protester holds up a sign that says, “I won a Purple Heart — for killing babies.” Knowing statement. He didn’t win the Purple Heart. As a reader, I can’t be sure whether he did and is a combat veteran who opposes the war, or whether he’s a citizen protesting the war.
Is that person, if he’s not a veteran, having received the medal, is he liable under this act?
Chief Justice Roberts:
Well, where do you stop? I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have a high school diploma if you know that you don’t. That’s something you can check pretty easily. And Congress can say: We want people to finish high school. It’s a big thing to have a high school diploma. So we want to make sure nobody goes around saying they do when they don’t.
What’s the principal reason for drawing the line there? Suppose the statute also made it a crime to represent falsely that someone else was the recipient of a military medal, so that if someone said falsely and knowingly that a spouse or a parent or a child was a medal recipient, that would also be covered?
General, what about these State statutes — there are more of them than I thought that there would be — that say no demonstrable falsehoods by a political candidate in a political race, and prohibit demonstrable falsehoods by political candidates? How would your analysis apply to those? Would they come out the other end as constitutional?
… Well, suppose it says demonstrable falsehoods about yourself just about your qualifications, about what you’ve done in your life, your — you know, whether you have a Medal of Honor, whether you’ve been in military service, whether you’ve been to college. So any demonstrable statement that a candidate, political candidate, makes about himself.
Where will all this lead. On his excellent SCOTUSblog, Lyle Denniston, said the court appears to be trying to fix the law, rather than scrap it:
Libby, the lawyer for the convicted Californian who had lied about receiving the Medal of Honor, Xavier Alvarez, had to struggle when the Justices tried to draw out of him alternative ways that Congress might have chosen to protect military medals from being defiled by lies about receiving such decorations. And, aside from his unaccountable concession (even he called it a concession) that the Act may not “chill” any protected speech, Libby made a significant misstep in his inability to persuade the Justices that striking down the Act would not also imperil other laws designed to regulate lying, such as the laws against giving false statements during government investigations.
For Libby, his best moment came in exchanges with Justice Antonin Scalia and the Chief Justice, after Scalia had wondered whether Congress, in order to try to deter lying about medals, could constitutionally approve the granting of a “medal of shame” to those “charlatans” who engaged in such lies. The lawyer said that certainly was something that the government could do. The Chief Justice immediately challenged him, suggesting that the government would not have such power under Libby’s theory in this case. To that, the attorney easily responded: “Well, there is a significant difference between a criminal sanction that puts someone in prison versus simply exposing them for what they are, which is a liar.”
The High Court is not a particularly tech- or media-savvy institution. If it were, someone might have pointed out that in the age of 24/7 news, Twitter, Facebook, and blogs, few political liars get away with telling a whopper,