Monday, July 02, 2012

US v. Alvarez: Stolen Valor Act unconstitutional

The plurality of the Supreme Court cited George Orwell's 1984:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern- ment authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sus- tained, there could be an endless list of subjects the Na- tional Government or the States could single out.

There was an allusion to the Civil War:

to William Carney who sustained multiple gunshot wounds to the head, chest, legs, and arm, and yet carried the flag to ensure it did not touch the ground during the Union army’s assault on Fort Wagner in July 1863, id., at 44–45. [from wikipedia: Carney, of the 54th Massachusetts, was the 21st African-American to be awarded the Medal; the battle at Ft. Wagner was depicted in the movie "Glory."]

Within the court's decision:

The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the unin- formed, the enlightened; to the straight-out lie, the simple truth. See Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be ap- plied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting).

The dissent invoked trademark law:

It is well recognized in trademark law that the prolifera- tion of cheap imitations of luxury goods blurs the “‘signal’ given out by the purchasers of the originals.” Landes & Posner, Trademark Law: An Economic Perspective, 30 J. Law & Econ. 265, 308 (1987). In much the same way, the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are, and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps.


Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today’s accepted wisdom sometimes turns out to be mis- taken. And in these contexts, “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’ ” Sullivan, supra, at 279, n. 19 (quoting J. Mill, On Liberty 15 (R. McCallum ed. 1947)).


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