It’s well-settled that the First Amendment’s right to free speech doesn’t protect things like fraud and defamation, where the speech at issue directly causes some identifiable harm to others. After all, fraud results in the loss of money or property, and defamation results in damage to a person’s reputation, which can cause serious financial loss.
But what about a blanket prohibition on lies that don’t
cause any apparent harm? Under the Stolen Valor Act
of 2005, there is such a prohibition. The law makes it a federal crime,
punishable by a fine and/or prison time, to knowingly make a false statement,
either verbally or in writing, that the speaker is the recipient of any
military decoration. Note that the law does not require the government to prove
that the statement caused harm to anyone (for example, by inducing an employer
to hire the liar), or even that the speaker acted with intent to defraud.
Theoretically, under the statute as written, a guy at a party who’s had a few too many drinks could be prosecuted for telling the story of his non-existent Silver Star to impress a group of strangers. Is this conduct despicable, and should such people be exposed at every opportunity? Absolutely. However, should it be criminalized? That’s a tougher question.
After all, the price we pay for living in a free society is
that many arguably immoral acts will be legal. There’s no federal law against
being rude, none against lying to children, and it’s not a crime to simply be a
jerk (who is also rude and lies to children). Once again, people who engage in
that conduct aren’t the types of people I, or almost anyone else, would like to
associate with. However, most would agree that it would be pointless and
perhaps disturbing to criminalize such conduct.
Currently, a man who claimed to have won the Congressional
Medal of Honor and is being prosecuted
under this law is arguing that it is unconstitutional. His basic argument is
that the law is a content-based restriction, which is presumptively invalid.
Such restrictions can only be upheld if the government can show that it has a
“compelling interest” in prohibiting a particular type of speech, and that the
prohibition is narrowly tailored to serve that interest.
The government actually argues that this is not a content-based restriction, which, if true, would compel a much more relaxed level of scrutiny. Yet the law, on its face, clearly and without qualification, bans a person from making certain statements of fact. If that’s not a content-based restriction, I’m not sure what is. Of course, a content-based restriction isn’t always unconstitutional, but it does trigger a burden that the government usually finds to be extremely difficult to overcome.
While a very compelling argument could be made that this law is constitutional under current precedents, whether or not such laws are a good idea are something else entirely. Personally, I believe that over-criminalization is a problem. While it is tempting to respond to everything that society disapproves of by banning it, such a course could take us down a path that most would find highly undesirable: criminalization of everything that the majority finds offensive.
BY: Rusty Shackleford
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