The Patriot Post® · Our Problematic Speech

WASHINGTON – The Stolen Valor Act of 2005, a compound of political pandering and moral exhibitionism, was whooped through the Senate, aka the “world’s greatest deliberative body,” by unanimous consent; the House, joining the stampede, passed it by a voice vote. So Xavier Alvarez now hopes the Supreme Court will save him from punishment for lying. And his is not the only case arising from government supervising speech that is demonstrably, or arguably, inaccurate.

The Stolen Valor Act allows fines and imprisonment for anyone who falsely claims to have been awarded any military decoration or medal authorized by Congress, with the severest sentences for claiming the highest honors. Alvarez, having won a seat on a California water district board of directors, introduced himself to other members by saying: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” All this was rubbish.

Leaving aside the question of how exactly Alvarez’s shabby behavior stole any hero’s valor, the constitutional question remains: Is the Stolen Valor Act compatible with the First Amendment, which the Supreme Court has held does not protect only truthful speech? The 9th Circuit Court of Appeals says no. And the Supreme Court has held that “constitutional protection does not turn upon the truth, popularity or social utility of the ideas and beliefs which are offered.”

Given that some false statements are constitutionally protected, which kinds are not? Defamatory statements are not, if they are made with a culpable state of mind and if they injure another person. When Justice Elena Kagan was a law professor, she noted “the near absolute protection given to false but nondefamatory statements of fact outside the commercial realm.” But Alvarez defamed no one, and it is unclear how his fabrications about himself caused America’s armed forces reputational harm. Furthermore, his lies did not fit any of the other four traditional categories of unprotected speech – obscenity, fraud, incitement, and speech integral to criminal conduct.

Another problematic case is percolating in Ohio, where the government can fine or imprison candidates or other participants in the political process who violate the state’s “false statement” law, which says: No person shall “make a false statement concerning the voting record of a candidate or public official” or “disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not,” if the statement is intended to influence an election.

Former Rep. Steve Driehaus, a Cincinnati Democrat who considers himself pro-life, says he lost his 2010 re-election bid because the pro-life Susan B. Anthony List, through its political action committee, ran ads saying – falsely, Driehaus insists – that when he voted for Barack Obama’s health care legislation he voted for taxpayer funding of abortion. Ohio’s law had a chilling effect on political speech when a billboard company, aware of Driehaus’ complaints, refused the SBA List’s business. The SBA List did, however, run radio ads against Driehaus.

A judge has ruled that his suit against the SBA List, charging “substantial economic and reputational harm” due to defamation, can go to trial. The SBA List is challenging the constitutionality of the false statement law.

Until the eve of the House vote on the health care legislation, Driehaus and about a dozen other pro-life Democrats vowed to oppose the health care bill unless abortion language was changed. It was not, so the president, trying to provide cover for those Democrats, agreed to issue an executive order purportedly limiting funding of abortions under the legislation.

But the president of Planned Parenthood, the nation’s largest abortion provider, contentedly dismissed the order as merely “a symbolic gesture.” The National Right to Life Committee, the U.S. Conference of Catholic Bishops and other pro-life forces grimly agreed.

Now, suppose Driehaus and the right-to-life groups are equally sincere in their opposite interpretations of what the health care law permits or requires regarding public funding of abortion. Should an Ohio government panel composed of political appointees be empowered to determine that the SBA List’s contention was intentionally or recklessly false?

For weeks before the election, voters heard Driehaus’ dispute with the SBA List, then voted against him. Isn’t that how political arguments should be settled? Or did voters, to the extent that they expressed support for the SBA List’s interpretation of the facts of the health care law, somehow violate the false statement law?

© 2011, Washington Post Writers Group