A few months ago, in response to a small flurry of disingenuous claims of military service by political candidates, Orin Hatch decided something had to be done. In an unusual demonstration of legislative agility, he quickly proposed amending the original 2005 “Stolen Valor Act” to include criminal provisions for “false claims in order to obtain honorariums, employment, elected office or other positions of authority.” As it turns out, the original act had already faced legal challenges in California, and today the 9th Circuit Court of Appeals handed down their ruling. In a 2-1 decision, the court determined that the Act was unconstitutional on 1st Amendment grounds. In the words of Judge Milan Smith,
“When valueless false speech, even proscribable speech, can best be checked with more speech, a law criminalizing the speech is inconsistent with the principles underlying the First Amendment.”
In an interesting side note, the dissenting Judge was none other than Jay Bybee, of the notorious DOJ OLC “Torture Memos”. I suppose it would not surprise anyone that he could see no harm in putting people in jail for claiming to be Navy SEALS. In his dissent, he doesn’t say if he believes they should be tortured.
Now here’s the thing. Most of us wouldn’t have any desire, or any reason, for that matter, to lie about our military service. Even in non-combat roles, most people are proud of their service, and those who are not will most likely not speak of it, or speak critically. In neither case is there much in the way of motivation to lie. In cases where a politician, for example, feels it might help his campaign for office, that urge to dishonesty is tempered by the risks represented by the cost of exposure, and the relative ease with which these sorts of claims can be verified.
But at the same time, we ALL lie about something. At some point, in a bar, at a banquet, in an employment interview, we will all embellish past accomplishments and create a historical fiction larger and more interesting than our banal reality. Any time that a legislature decides that these lies go beyond mere ethical shortfalls, and makes them real, punishable crimes, we’re asking government to take a powerful and dangerous role in our lives. In a way, this is really just another example of the same kind of motivation behind criminalizing flag burning. In our hearts, we’d really prefer it if people didn’t do it, and we find it symbolically repellent when they do, but nonetheless, to elevate it to the level of a crime, to actually consider taking someone’s very freedom for committing these ultimately harmless acts seems like the kind of political prosecutions so familiar in nations ruled by totalitarian strongmen.