Wednesday, February 22, 2012

Stolen Valor in the Court of Popular Opinion

If editorials and other opinions pieces are any prediction, the Supreme Court will be affirming the Ninth Circuit's finding that the Stolen Valor Act provision 18 USC 704(b) is unconstitutional after today's oral argument.

In the Washington Post,the editorial board argues that to "allow the government to become the ultimate arbiter of truth would set a terrible precedent," and the USA TODAY editorial board argues that the media and veterans groups reveal fraudsters with the result of "public disgrace." 

 The op-ed inthe New York Times by William Bennett Turner advances a slippery slope argument:

If the Supreme Court were to accept the government’s argument, other disconcerting legislation could easily follow. Congress could enact a law that criminalized false claims by political candidates about their qualifications for office, or false claims about their opponents. Surely the government has an “important” interest in preventing voter deception. But as much as we want to encourage factual accuracy in our politicians, do we really want the government to prosecute, for example, Senator Marco Rubio, the Florida Republican who falsely stated on his Senate Web site that his parents moved from Cuba after — rather than before — Fidel Castro took power? Who among us has not said things about ourselves that are untrue? Who has not exaggerated or embellished details to tell a better story?

Professor Jonathan Turley on NPR editorialized about the First Amendment frailties of the Stolen Valor Act.

On Jurist, law student Kimberly Bennett argues that the Stolen Valor Act is not the least restrictive means of furthering the government's interest.

And over on the American Constitution Society blog, I've argued that it's important to consider the Stolen Valor Act as a viewpoint restriction.

[Update: There's a terrific round-up of the post-argument legal commentary by Kiran Bhat over at SCOTUSblog that provides more diversity of opinions]. 

RR

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