May 25, 2011

Epstein on the Stolen Valor Act

In his latest post for, NYU's Richard Epstein explains why the First Amendment does not protect most false speech, and condemns the Ninth Circuit's ruling in USA v. Xavier Alvarez, in which the Court declared the Stolen Valor Act unconstitutional.  Professor Epstein writes:

When I was a young lad, I was taught that, in general, it was wrong to lie and proper to tell the truth.  As I got a little older, that black and white version of the world got suffused with some gray.  Tact was an important element in life, so that white lies, which are intended to ease social interaction were regarded as an important tool for getting along with other people.  As I thought more deeply about the subject, I also realized that there were some situations in which people were under a duty to lie.  Hence, my regard for philosophy suffered a body blow from which it has never fully recovered when I first learned of Immanuel Kant’s absolutist assertion that it was even wrong to protect an innocent person against certain death by a vicious assailant who was seeking him out.  Lying as self-defense seems to be as natural as using force in self-defense.

Now it turns out that the Ninth Circuit thinks that we may have set the presumption in the wrong way.  The cause célèbre involves a common problem whereby all sorts of dubious characters make false statements about their bravery and heroism in war.  A recent story in the New York Times now reports that learned judges have concluded that the First Amendment protects these individuals from prosecution under the Stolen Valor Act.

The question is why.  To Judge Milan D. Smith Jr., the argument was simple enough.  If the courts upheld act, “then there would be no constitutional bar to criminalizing lying about one’s height, weight, age or financial status on or Facebook, or falsely representing to one’s mother that one does not smoke.”
The response to this argument comes in two parts. The first is that in some of these cases, the misrepresentation is more serious than these flippant remarks let on, at least when people rely on these false statements to their detriment.  Perhaps we should not criminalize all of them, but lest we raise this argument to a constitutional principle, we might as well say that we should not criminalize taking property from others by false pretenses, insider trading, or threats of murder.

The second is that misrepresentations of military prowess is in fact a very serious violation of a strong code.  I can recall at least some instances in which soldiers who wore medals that they did not earn killed themselves in disgrace after their wrong was discovered.  It is also the case that many individuals might well be prepared to give jobs or support to individuals on the strength of these representations, which makes them look like a particularly heinous form of fraud.

All in all, the First Amendment protects the freedom of speech, which is not to say that it protects all speech acts.  The idea of freedom of action is always cabined in by the libertarian constraint against force or fraud.  Once that principle is kept in mind, the judicial invalidation of the Stolen Valor Act should be seen as a mistake of giant proportions.  Thank heavens other courts have been prepared to mete out some well-deserved punishment.  As for the Ninth Circuit decision, my guess is that it will be overturned by a 9-0 vote if the matter ever reaches the Supreme Court.

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