Scott Brown (R-MA) introduces bill that could allow Fox News to be banned by the government, Rush Limbaugh to be imprisoned

That’s not the point of the legislation, but that’d be the legal precedent set if it were passed and then upheld by the courts.

The Stolen Valor Act of 2005 was a truly heinous piece of legislation that sought to criminalize lying about military service and achievements, that received wide support from both major political parties and passed the Senate by unanimous consent, before being signed into law by George W. Bush in 2006. No vote in the Senate was required because only a single audible objection would have prevented its passage.

There wasn’t one.

Out of the 100 elected representatives that swore to defend and uphold the Constitution, not one single person voiced an objection to the federal criminalization of lying. As has often become the case with Congress, the worst acts it commits against its citizens and the Constitution are those which enjoy strong bipartisan agreement. Leaders of both parties, in rare acts of cooperation, streamline the process to pass legislation without public hearings or meaningful debate of any kind.

It should have been obvious to anyone with even a minimal civics education that such legislation was a clear violation of the first amendment. It is precisely such overly broad and pointless regulation of speech that the first amendment is meant to protect.

There is no doubt that lying can have significant and negative consequences on other people’s lives, and that lying about something as honorable as military service would be at the top of most people’s list of the worst things to lie about. But the power of government was never meant to protect us from every imaginable bad experience in the world, while such power is strongly and rightfully constrained in the area of speech.

In United States v. Strandlof, the SVA was struck down on its face (meaning it would be unconstitutional in all possible circumstances) by a district judge in 2010, but was (wrongly) upheld by the 10th Circuit earlier this year. In United States v. Alvarez, a district court in California also struck down the SVA, and that decision was upheld by the 9th Circuit. The Supreme Court upheld the 9th Circuit’s ruling, permanently striking down the SVA by a vote of 6-3 on the same day it had issued its landmark health care ruling. (That it wasn’t 9-0 is appalling, but not surprising, in light of the 5-4 vote striking down state laws criminalizing flag burning in Texas v. Johnson, and a similar federal law in United States v. Eichman, 5-4. Although the Supreme Court came to the correct judgment in all three cases, it’s still disturbing that so many justices were in favor of gutting the first amendment.)

The courts blasted the SVA as blatantly unconstitutional, calling arguments by prosecutors that lying about receiving honorific medals somehow lessened the value of them for legitimate recipients, as “defying comprehension”, “shocking”, and “unintentionally insulting to the profound sacrifices of military personnel the Stolen Valor Act purports to honor.”

As people often have to be reminded, speech being unpopular and even harmful are not legitimate reasons to ban speech, especially in the former case. Calling for violence and some actual threats of harm are protected speech, under Brandenburg v. Ohio.

Scott Brown (R-MA), who by all indications only has a 50/50 shot at still being in Congress next year, has introduced a new version of the Stolen Valor Act that would criminalize lies if the liar profits in some way. As my headline suggests, that would set an amazing precedent that would allow the government (state and federal) to not only ban Fox News from television (considering its windfall profits from a very long and well documented history of lying [News Corp once went to court to define its right to lie under the first amendment] FNC may very well by a virtual criminal syndicate under this standard), it would allow the government to pass laws criminalizing other lies — so long as someone profits from it — that could see Rush Limbaugh not only banned from radio and fined, but also imprisoned.

It’s not the specifics of this new version of the SVA that would matter — criminalizing lying about military service — it’d be the precedent set, allowing government to criminalize a specific category of lying for profit, that would effectively gut the first amendment.

Who gets to decide what the definition of profit is?

Rush Limbaugh has profited enormously to the tune of over a hundred million dollars over his career. Xavier Alvarez was running for public office and had hoped to win his election and gain political power, as a result of his numerous lies. You may hope to gain some social standing by lying on Twitter, gaining celebrity status or perhaps getting a job offer. If the line isn’t drawn at protecting lies as an unpopular, but still constitutionally protected speech, where is the new line drawn, and who gets to draw it?

Even drawing the line at lies and truth is a very dangerous power to hand to the government.

Who gets to decide what is and isn’t a lie?

If I call your mother a fat whore, can Congress outlaw that? What if I said that because I’m selling a diet plan or book? Does a judge who has never seen your mom and doesn’t know either of us, sitting in a courtroom thousands of miles away, get to be the final arbiter of truth, when their job is to be the arbiter of the law?

If I lie about being a best-selling novelist, can the state of New York — home of the book publishing industry — pass a law to put me in jail for 30 years? Could they not argue that I’m lying for profit *and* harming their entire business industry at the same time? Couldn’t they also argue that I’m lessening the value of being a best-selling author and harming real and actual best sellers by claiming I am one? Can any judge accurately and reasonably decide that my claim to being a best-selling author is a crime? Most people would think about the New York Times list, but what if I was actually talking about Amazon.com?

When does a disagreement become a crime?

There are arguments to be made that even current defamation laws and the FCC’s court-sanctioned censorship of language and nudity on network television and radio have gone too far. But at least those issues are less subjective than true/false. A bare ass on NYPD Blue is a bare ass no matter how you look at it (pun intended). “Fuck” is salty language in just about any home and nothing a person would want their child hearing on TV.

But what may be a devastating and quantifiably harmful lie to you may be nothing more than shameful behavior to someone else, if they even care.

The greatest argument against these laws, however, isn’t that they are plainly unconstitutional. It’s that society already has in place mechanisms for dealing with this problem. Xavier Alvarez was outed as a liar before he was charged with a crime. He never won public office. It’s likely that his reputation is ruined for the rest of his life. Nobody believes he won any military medals. The accomplishments of the people who have won such medals and honors are still heroes. They still posses their real and earned medals. The public shunning of Xavier Alvarez, if anything, has renewed the value of their service and accomplishments, and has reminded us all of how important and unique those actions were and are.

There is no justification for heinous laws like the SVA, in either incarnation. And even if there were, the first amendment exists to protect unpopular speech, because popular speech needs no protection at all.

* * *

I remembered in the midst of publishing this story that people have on occasion thrown away their medals in full public view, as a form of political protest. This happened as recently as May 14, 2012, when Iraq and Afghanistan veterans gathered at a NATO summit in Chicago and threw away their medals in protest of the occupation and invasion of those two countries and the enormous suffering and death those wars have caused:

“No amount of medals, ribbons, or flags can cover the amount of human suffering caused by this war.”

“I have only one word, and it is shame.”

“This is for the people of Iraq and Afghanistan.”

“Mostly, I’m sorry. I’m sorry to all of you. I am sorry…”

In the shadow of the Nato summit, under the watchful eyes of a phalanx of full-black-clad riot police, dozens of former servicemen and women in uniform, veterans of the Iraq and Afghanistan wars, threw away their medals, with apologies. It was one of the most moving experiences many of us had witnessed in our lives. It is hard to describe in words. I couldn’t get the lump out of my throat. Out of the corner of my eye, I caught a woman next to me crying. Their words, their voices, crackling under the emotion of their courageous act, breaking under the weight of the pain, the trauma, their anger, sadness, and hope – theirs was a heroic and beautiful act, a moving ceremony. It was a privilege to be there with these women and men who served in our wars.

Operation Iraqi Freedom medal. Tossed. Global War on Terror medal. Thrown. National Defense medal. Pitched. Marine Corps Good Conduct medal. Flung. Navy and Marine Corps medal. Chucked.

Veteran Greg Broseus told CBS News while he was throwing away his 11 service medals, “They’re my medals. I earned them. I can do whatever I want with them.

Yet we are supposed to believe that merely lying about having some of these medals is a crime so terrible that the government must be empowered to throw you in jail over it. The federal government, including of course the *100* Senators who didn’t speak a word of protest or opposition to the Stolen Valor Act, could learn a lot from these veterans about what their service and their awards truly mean, especially in light of the horrific suffering that came as a result of the two wars that those same Senators voted to create, and in which very few of them have ever served.

Paul Tenny

Paul Tenny

I'm not a journalist but I do it anyway. I cover elections and have interviewed television writers and producers.
Paul Tenny

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