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Locked in a war of words to define free speech

 Free Speech  Comments Off on Locked in a war of words to define free speech
Dec 232014

Activist Pat Eatock speaks to media after the Federal Court found in 2011 that columnist Andrew Bolt had breached the Racial Discrimination Act. Photo: Justin McManus

Fredrick Toben always insisted he wasn’t a Holocaust denier because you couldn’t deny something that never happened. The German-born Australian says there was never any systematic German program to kill Jewish people, denies the existence of gas chambers at Auschwitz and claims that Jews exaggerated the numbers murdered during World War II, sometimes for financial gain.

When Australia passed racial hatred laws in 1995, the Executive Council of Australian Jewry decided to take Toben on, led by its then director Jeremy Jones and the solicitor in the case, Peter Wertheim. Their first complaint was in 1996. It took until 2002 for it to get to the Federal Court, which found that Toben’s views weren’t part of academic debate about the Holocaust, but were designed to ”smear” Jews.

Toben refused to remove the material, citing freedom of speech. In 2009, he was sentenced to three months’ jail for contempt of court.

Illustration: Matt Davidson.

Wertheim is the executive director of the council, which has used racial hatred laws aggressively to fight serious examples of anti-Semitism – cases have been conciliated though the Australian Human Rights Commission and several have found their way to the Federal Court.


The influential national Jewish group and every major ethnic organisation in the land will not let these laws go without a fight.

The government, which this week released proposed amendments designed to end the ”chill factor upon freedom of speech”, as Attorney-General George Brandis put it, suddenly seems nervous about championing the free speech of people such as Toben.

The draft laws ”would always capture the concept of Holocaust denial”, Brandis insisted, saying it would amount to racial vilification, a proposed new provision. But Wertheim, as well as human rights lawyers, the libertarian Institute of Public Affairs, which campaigned to scrap racial hatred laws, and the Race Discrimination Commissioner, Tim Soutphommasane, are in agreement that people like Toben are likely to have free rein if the proposals become law, because the exemptions to vilification are so broad.

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First Amendment does not justify Facebook threats

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Dec 022014

When your parents told you to watch what you post on social media, did you roll your eyes thinking it was an overreaction? Anthony Elonis, a man who posted a threat to his ex-wife as a Facebook status, should have heeded that advice.

According to a CNN article, Elonis case regarding his posts will be heard by the United States Supreme Court, marking the first time an official ruling will take place regarding social media and freedom of speech. His ex-wife, Tara Elonis, moved for a protective order because of the posts.

While the First Amendment protects free speech, including harsh words and commentary, it never should be used to justify a threat. Elonis posted, Fold up your protection from abuse order and put it in your pocket. Is it thick enough to stop a bullet?” He posted several similar status updates that would make anyone consider him as a major threat to society, and especially to Tara.

Elonis attorney, John Elwood, told CNN that the posts were a way to blow off steam, defining them as therapeutic. However, Facebook is not a good place to let off steam. If Elonis had desires to murder his ex-wife, he should have consulted a licensed psychiatrist, not a social media website. When someone spreads panic in a public domain, it should not be protected under the First Amendment.

Solicitor General Donald Verrilli Jr., who will lead the prosecution for the United States during the Supreme Court case, agreed with this assertion, comparing Elonis statements to a bomb threat.

Even if Elonis did not intend to carry out these threats, he should still be liable for the consequences of creating panic. A Pennsylvania jury found Elonis guilty earlier this year, and he was sentenced to 44 months in prison.

Elwood likened Elonis statements to a rap artist blowing off steam in a song, as an artistic and creative outlet. It does not matter how creatively a threat is written. A threat is a threat, no matter how one masks it.

Supporters of Elonis claim that the First Amendment protects the death threats he posted on Facebook. However, the First Amendment cannot protect Elonis ex-wife from a potential gunshot.

The underlying point is that everything we post on Facebook is public, and the author is responsible for what they post. Elonis could have used privacy settings or personal messages to keep his threatening feelings a secret; but the moment he posted them to his wall, he created a panic for his ex-wife.

In this case, Elonis deserved what he got.

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Argument preview: How many brake lights need to be working on your car?

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Oct 042014

The Supreme Court will open the October 2014 Term on Monday morning by hearing arguments that may bring back bad memories of convoluted law school discussions: may an officers reasonable mistake of law provide reasonable suspicion to stop a car under the Fourth Amendment? The Court has previously ruled that a reasonable mistake of fact will not violate the Fourth Amendment. Although Jeff Fisher, an experienced Supreme Court litigator, has presented some formidable arguments to rule for Heien, he may face an uphill battle persuading a majority of Justices that a reasonable, but mistaken, interpretation of state law should receive different constitutional treatment.

Facts: A surprising interpretation of state law.

Heien was driving a car which undisputedly had only one of its two rear brake lights working. Observing this, a member of a local sheriffs department stopped Heiens car, ultimately finding cocaine in it. Along with charging Heien with cocaine trafficking, the officer cited Heien for a non-working brake light, and the state trial court agreed that the stop was valid based on this observed traffic violation. Heien then pled guilty conditionally, reserving his right to appeal the denial of his suppression motion.

But on what basis could a court suppress? Well, in a decision later described by even the dissenting North Carolina justices as surprising, the state court of appeals ruled that, because the antiquated North Carolina statute requires only a stop lamp and one of Heiens brake lights had in fact been working, the traffic stop was invalid. [A]n officers mistaken belief that a defendant has committed a traffic violation is not, said the appellate court, an objectively reasonable justification for a traffic stop.

Granting discretionary review, the North Carolina Supreme Court disagreed. It noted that, although one part of the state law required only a stop lamp, another required all rear lamps to be in working order. Thus, the state supreme court ruled, even assuming that the appellate courts statutory interpretation was correct, the officers mistake of law was objectively reasonable, and a reasonable mistake of law can provide the reasonable suspicion needed to stop a car under Terry v. Ohio. The Court also emphasized societys interest in keeping its roads safe. (Heien contends that the statute should define what the legislature thinks is safe, not officers who misinterpret it.)

Heiens petition for certiorari noted that various state and federal courts have split on the general question whether reasonable mistakes of law can support Fourth Amendment intrusions (with the North Carolina Supreme Court having adopted the minority view). On Monday, the Justices at least five of whom are former law professors will bat this ephemeral question around, hypotheticals abounding, in the highest classroom in the land.

Ideology and amicus briefs

Along with merits briefs from Heien and North Carolina (which will be represented by Deputy Attorney General Robert Montgomery at oral argument), the federal government will also participate in the argument (represented by Assistant to the Solicitor General Rachel Kovner) as an amicus. Six other amicus briefs have been filed, including one on behalf of nineteen states and the District of Columbia supporting North Carolinas view, and one filed by among others the Gun Owners Foundation in support of Heien. Ideology does not, apparently, forecast the preferred result on the surprisingly unsettled constitutional question: the Gun Owners Foundation brief argues, for example, that the Fourth Amendment . . . cannot be diminished by modern judges who view traffic safety [as] more important than property rights.

The parties arguments

Conceding that the Court has previously ruled that what is generally demanded of the many factual determinations regularly made by law enforcement is not that they always be correct, but that they always be reasonable, Heien argues that mistakes of law should be (and have always been) treated differently. He argues (and both North Carolina and the federal government appear to concede) that the common law has always presumed that officers know the law, so that officers, for example, have long been liable for trespass even if they reasonably rely on an incorrect interpretation of a statute. Ignorance of the law is no excuse, argues Heien.

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Resident working on second historic district amendment

 Second Amendment  Comments Off on Resident working on second historic district amendment
Sep 182014

Marika Lee, 12 p.m. EDT September 17, 2014

The group behind the proposed Madeira historic district amendment might submit a second amendment to clarify the first. (Photo: Marika Lee/ The Community Press )

Madeira could have a second proposed amendment to protect the citys two historic houses and train depot.

Resident and Madeira Historical Society spokesman Doug Oppenheimer presented a draft of the new amendment to city council Sept. 8.

Oppenheimer distributed copies of a draft of the new amendment at the Sept. 8 city council meeting and Sept. 15 Planning Commission meeting.

The new amendment to the Madeira Charter would create a new Madeira zoning district called The Historic District and structures within it would have to meet the Historic District Guidelines. It would also create a Historic District Commission to oversee the district.

The first amendment calls for the Hosbrook House, Muchmore House and Train Depot to be included in the historic district. The properties are currently part of the Muchmore Historic Area, but the area does not have any special zoning or building restrictions.

Though the first charter amendment will be on the ballot in November, City Solicitor Bob Malloy said the city cannot enforce it because the city does not have a historic district.

If the first amendment is approved by voters it could be challenged by legal action or nullified or clarified by another amendment, Malloy said earlier this year.

I dont know if (the new amendment) would clear everything up. It will clear up some of the vagueness, City Manager Tom Moeller said. He added he has not yet looked over it with Malloy to understand its full impact.

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Argument preview: First Amendment protections for public employees subpoenaed testimony

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Apr 242014

On Monday, April 28, the Court will hear oral arguments in Lane v. Franks on the First Amendment protections for a public employee who testifies in court. There are two respondents the previous and current presidents of the college in question and they disagree with each other on the First Amendment question. The Solicitor General will participate in the oral argument.


Central to the resolution of Lane v. Franks is the reach of Garcetti v. Ceballos, the Courts latest pronouncement on the First Amendment rights of public employees. Since Pickering v. Board of Education in 1968, the First Amendment has protected public employees from adverse employment actions when they are speaking as a citizen on a matter of public concern. In Garcetti, the closely divided Court held that, when public employees make statements pursuant to their official duties, such speech is not protected by the First Amendment. The employee in Garcetti was a deputy district attorney in Los Angeles who investigated a law enforcement officers affidavit in support of a search warrant and concluded it was false. The prosecutor wrote a memo recommending the case be dismissed; his supervisors not only vehemently disagreed but also allegedly retaliated against him. In an opinion by Justice Kennedy, the Court reasoned that when an employee is simply performing his or her job duties, there is no relevant analogue to speech by citizens who are not government employees.

In the eight years since Garcetti, courts have varied in their application of the doctrine. For some courts, Garcetti has seemed a broad mandate insulating public employer actions from First Amendment challenge by any employee. Other courts, however, have limited and distinguished Garcetti. The Court has denied certiorari in several closely watched cases, such as Jackler v. Byrne and Bowie v. Maddox, which both involved police officers and reached differing conclusions, arguably producing a circuit split.

The Eleventh Circuits opinion in Lane v. Franks is decidedly in the expansive mandate camp. Indeed, the opinion is a per curiam one, decided without oral argument and intended as non-precedential. In affirming the district judges grant of summary judgment to the public employer, the Eleventh Circuit described Garcetti as further restricting public employees protected speech. Relying on its own circuit precedent, including pre-Garcetti cases, the court of appeals ruled that an employee enjoys no First Amendment protection when the speech was made pursuant to his official duties, including if his speech owes its existence to the employees professional responsibilities and is a product that the employer itself has commissioned or created. This broad category included subpoenaed testimony. However, the Eleventh Circuit recognized, albeit in a footnote, that both the Seventh Circuit and Third Circuit had decided this issue differently, citing Morales v. Jones and Reilly v. City of Atlantic City.

Even as related by the Eleventh Circuit, however, the circumstances giving rise to Lane v. Franks paint a troubling picture of retaliation for a public employees failure to cooperate with political corruption and his resulting testimony. In 2006, soon after Edward Lane became the director of a program for at-risk youth at Central Alabama Community College (CACC), he looked at the programs finances. He discovered that an Alabama state representative, Suzanne Schmitz, was listed on the payroll. He also discovered she had never performed any work for the program. Edward Lane raised his concerns about Schmitz, but he was warned by the CACC president (a predecessor to respondent Steve Franks) and CACCs lawyer that terminating Schmitzs employment could have negative repercussions for both Lane and CACC. Nevertheless, Lane did terminate Suzanne Schmitz after she refused to report to work. Schmitz told another program employee that she planned to get [Lane] back for terminating her and that, if he requested money from the state legislature, she would tell him youre fired. The FBI began investigating Suzanne Schmitz and contacted Edward Lane for information. Lane testified before a federal grand jury and pursuant to a subpoena he testified at Schmitzs two federal criminal trials for mail fraud and fraud involving a program receiving federal funds. Schmitz was ultimately convicted, although a divided Eleventh Circuit panel reversed her convictions on some of the counts.

Lane was terminated after his testimony at the first criminal trial. In January 2009, Franks who had become president of CACC terminated the twenty-nine employees of the at-risk youth program, but soon rescinded the termination of all the employees except Lane and one other. Whether Franks terminated Lane due to Lanes testimony against Schmitz remains unresolved; an essential issue in the Supreme Court is whether it needs to be.

Arguments and analysis

The primary question before the Court is whether the Eleventh Circuit was correct in holding that Lanes testimony was categorically unprotected by the First Amendment, although there is also a secondary issue of whether Franks is entitled to qualified immunity from an award for damages.

There is little support for a straightforward affirmance of the Eleventh Circuit opinion on the First Amendment issue. Lane is not the only one to argue that the Eleventh Circuits categorical exclusion of First Amendment protection for subpoenaed testimony is incorrect: the Solicitor General, representing the United States as an amicus, agrees with him. More unusually, the Alabama attorney general Alabama representing respondent Susan Burrow, the current acting president of CACC also agrees that the Eleventh Circuit was incorrect to conclude that Lanes testimony was categorically unprotected by the First Amendment. Additionally, almost all of the amicus briefs agree with this position, including one from the National Association of Police Organizations, which is perhaps not surprising given that so many of the similar cases involve persons employed in law enforcement.

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An Examination of Substantive Due Process and Judicial Activism 11-17-12 – Video

 Second Amendment  Comments Off on An Examination of Substantive Due Process and Judicial Activism 11-17-12 – Video
Nov 222012

An Examination of Substantive Due Process and Judicial Activism 11-17-12
The Federalist Society closed its 2012 National Lawyers Convention with Showcase Panel IV. After it became clear at the oral argument the health care mandate law might be in trouble, President Obama suggested that the Justices would be engaging in judicial activism if they overturned the law. This is a particularly high profile example, but charges of judicial activism have been a key part of the discussion of the role of the courts for quite some time, in earlier times from people generally identified as conservatives, but more recently by liberals and progressives. Is there real meaning to the term? Would the term apply to overturning the Affordable Care Act? The Defense of Marriage Act? The three most common ways of understanding judicial activism are that it refers to when judges invalidate legislation, when they do so based on their individual preferences rather than the requirements of the Constitution, and when they overrule a prior precedent. This panel will consider these various possibilities as well as whether the term continues to be a useful one. –Prof. Steven G. Calabresi, Northwestern University School of Law and Chairman, The Federalist Society –Hon. Walter E. Dellinger, III, Partner, O'Melveny Myers LLP, Duke University School of Law and former Acting US Solicitor General –Prof. Nelson R. Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University School of Law –Mr. William H. “Chip” Mellor, President and …From:TheFederalistSocietyViews:3 0ratingsTime:01:29:59More inNews Politics

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Court Avoids First Amendment Question in Indecency Case

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Jun 222012

By Peter Landers

Count us as a little surprised at the way the Supreme Courts ruling came out in the case over Federal Communications Commissions indecency rules.

At arguments in January, many of the comments from the courts conservative wing focused on the governments role in upholding broadcast television as an island of propriety amid a sea of cable indecency, as Jess Bravin wrote at the time.

And part of the discussion centered on the First Amendment guarantee of freedom of speech: If the FCC were allowed to punish networks for fleeting indecency such as the f-word spoken during a live awards show, would that chill speech?

Solicitor General Donald Verrilli argued that the FCC was trying to make reasonable accommodations for First Amendment values. Carter Phillips, representing broadcasters, said the court ought to decide the First Amendment question thats presented here. He said the FCC was going too far.

More than five months later, the opinion comes in. Whats the First Amendment ruling? Writes Justice Anthony Kennedy: [T]he Court need not address the First Amendment implications of the Commissions indecency policy. And theres little in the opinion about defending propriety, aspiring to a less vulgar culture and other such notions aired at argument.

Instead, Justice Kennedy, writing for the court, says the key point is that the FCC failed to give networks fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.

Whether the FCC rules would be constitutional if the agency did give fair notice is a question left for another day/

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Supreme Court: Is a lie protected by free speech?

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Feb 232012

Washington • Is there value in a lie?

That’s a question the Supreme Court weighed on Wednesday as it took up the case of a California man who was charged with a crime for lying about receiving the Medal of Honor.

Xavier Alvarez falsely claimed that he was a Marine who earned the nation’s top award, but the question of whether such a deceit warrants prosecution and jail time — or has value and deserves protection under the First Amendment — is now up to the nation’s high court.

The case could have direct repercussions for a Utah County veteran, Myron Brown, who is also accused of lying about earning the Distinguished Service Cross, the Silver Star and the Purple Heart during his service in the Korean War.

In Brown’s case, Rep. Jason Chaffetz, R-Utah, presented the Provo resident with medals during a ceremony last year that was covered by the Deseret News, the Daily Herald of Provo and KSL-TV. Saying he was duped, Chaffetz last month turned over his own investigation into the matter to federal prosecutors and said he’ll convene a congressional hearing on the matter.

The actions came more than a month after The Salt Lake Tribune first reported Brown, 86, presented fraudulent documents awarding him the medals. Brown denies any wrongdoing.

Justices in the Alvarez case on Wednesday were skeptical of the Stolen Valor Act passed by Congress in 2006 that criminalizes false claims of military medals, and feared that making it unlawful to lie could stifle free speech permanently.

Justice Stephen Breyer noted that if it’s illegal to lie about a military medal, then political rhetoric could soon be criminalized.

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“And then if this [law] is lawful and constitutional, then you have people in political campaigns suddenly worrying that the U.S. attorney is going to come in and start indicting him,” Breyer told Solicitor General Donald Verrilli.

“That’s part of the chilling effect,” Breyer said. “And you’ve assumed you can get around this chilling effect, but I’m less certain.”

Justice Anthony Kennedy disagreed with Verrilli’s argument that there is no intrinsic value in a lie and therefore it has no need for First Amendment free-speech protection.

“I think it’s a sweeping proposition to say that there’s no value to falsity,” Kennedy said. “Falsity is a way in which we contrast what is false and what is true.”

Verrilli countered that the high court has often ruled that lies — such as perjury or fraud — have no protection as free speech and that in this case, the government can easily prove when someone is falsely claiming to have been awarded a medal.

“The Stolen Valor Act regulates a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor,” Verrilli said.

Justice Antonin Scalia agreed.

“I believe that there is no First Amendment value in — in falsehood,” he said, noting that lying about military service does harm to those who actually did serve and were awarded medals for their heroism.

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Supreme Court: Is a lie protected by free speech?

Is A Lie Just Free Speech, Or Is It A Crime?

 Free Speech  Comments Off on Is A Lie Just Free Speech, Or Is It A Crime?
Feb 232012

Enlarge Bruce Smith/ASSOCIATED PRESS

The Supreme Court heard arguments over whether it should be a crime to lie about receiving military medals. Here large replicas of the Medals of Honor hang at the Medal of Honor Museum.


The Supreme Court heard arguments over whether it should be a crime to lie about receiving military medals. Here large replicas of the Medals of Honor hang at the Medal of Honor Museum.

The U.S. Supreme Court took up the subject of lying on Wednesday.

Specifically at issue was the constitutionality of a 2006 law that makes it a crime to lie about having received a military medal. But the questions posed by the justices ranged far beyond that — from advertising puffery to dating lies.

At the center of the case is Xavier Alvarez, a former California county water board member who is an undisputed liar. Among his lies is that he played professional hockey, served in the marines and rescued the American ambassador during the Iranian hostage crisis. None of those lies was illegal.

But when he claimed to have won the Medal of Honor, that lie was a violation of the Stolen Valor Act, which makes it a crime to make false claims about receiving military medals.

Alvarez appealed his conviction and won. A federal appeals court struck down the law as a violation of the First Amendment guarantee of free speech.

The government appealed to the Supreme Court where, Solicitor General Donald Verrilli on Wednesday told the justices that the law regulates only a narrowly drawn category of calculated falsehoods and that the “pinpointed” pure lies targeted by the statute are not speech protected by the First Amendment.

But Verrilli soon faced a barrage of questions about when Congress can make it a crime to tell a lie that does not defraud or defame.

Justice Sonia Sontomayor began by asking whether, under this law, the Government could have prosecuted a Vietnam War protester for holding up a sign that said, “I won a Purple Heart — for killing babies,” when the protester had not won the medal.

Verrilli answered that “it would depend” whether that expression was “reasonably understood by the audience as a statement of fact or an exercise in political theater.”

“That's somewhat dangerous, isn't it,” responded Sotomayor, noting that she thought it was the government's position that there are no circumstances in which calculated and false factual speech has value.

Yes, Verrilli said, that is the government's position. It is also the Supreme Court's position, expressed repeatedly in its opinions, he maintained.

At that suggestion, Justice Anthony Kennedy almost levitated out of his chair.

“I simply can't find that in our cases,” he said. “I think it's a sweeping proposition to say that there's no value to falsity.”

Verrilli responded by trying to narrow the reach of the language in the Stolen Valor Act. The law, he argued, regulates “a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor, and that's information that is … uniquely within the knowledge of the individual speaker.”

Still, Chief Justice John Roberts wondered, “Where do you stop?”

Could Congress make it a crime for a person to falsely claim that he graduated from high school?

Verrilli conceded that Congress, or more likely state governments, could make it a crime to lie about having graduated from high school.

Justice Kennedy, however, was clearly in search of some narrower category of false speech that could be outlawed. “You can argue that this is something like a trademark, a medal in which the government and armed forces have a particular interest, and we could carve out a narrow exception for that,” he said. “But just to say that …there is no value to false speech. I simply cannot agree.”

Justice Samuel Alito asked whether the military medals law is limited to statements a person makes about himself.

Verrilli said it is, but then Alito asked why the government chose to draw the line there. “Suppose the statute also made it a crime to represent falsely that … a spouse or a child was a medal recipient?”

Justice Ruth Bader Ginsburg broadened the question further. Could Congress criminalize other false statements, such as denying that the Holocaust occurred?

Verrilli replied that that kind of statement would be protected under the First Amendment because “it's so bound up with matters of ideological controversy.” He said that the Holocaust example was different from this case, which involves, with “pinpoint accuracy, a specific verifiable claim about yourself having won a medal.”

Justice Elena Kagan noted that quite a few states have laws on the books that make it a crime for political candidates to lie during a political campaign. But Verrilli said those laws too would likely be unconstitutional because they would risk chilling speech.

Justice Antonin Scalia noted that “Even in the commercial context we allow a decent amount of lying, don't we? … It's calling puffing.”

“What about lying about extramarital affairs?” asked Kagan. After all, she observed the government has a strong interest in the sanctity of the family.

Verrilli acknowledged the hypothetical presented “a hard case.”

“The trouble is,” interjected Justice Stephen Breyer, that we “can think of 10,000 instances that meet your criteria,” for laws that could criminalize everyday lies.

“[T]he core of the First Amendment,” observed Justice Sotomayor, is to protect even offensive speech.” In this case, she contended, “we don't think less of the medal … we're offended ” by the lie. “So outside of the emotional reaction, where's the harm?”

“I'm not minimizing it,” Sotomayor added. “I take offense when someone I'm dating makes a claim that's not true.”

At that, Solicitor General Verrilli piped up. “As the father of a 20-year-old daughter, so do I.”

But this law involves weighty symbols of courage and valor, Verrilli said. These medals “are a big deal. You get one for doing something very important, after a lot of scrutiny. And for the government to … stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers.”

In that case, Justice Ruth Bader Ginsburg wondered, did the military ask Congress to enact the military medals law?

No, Verrilli replied. It did not.

Following Verrilli to the podium was the lawyer for Alvarez, public defender Jonathan Libby.

The first question came from Chief Justice Roberts: What is the First Amendment value in a pure lie?

Libby answered that people often make things up about themselves, such as when “Samuel Clemens created Mark Twain,” fabricating much material about his own biography.

Roberts dismissed that example, saying Twain lied for “literary” purposes.

Justice Alito persisted: “Do you really think that there is a … First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself?”

When Libby floundered, Justice Breyer interjected by providing an example of a lie that had value: “Obvious example…are you hiding Jews in the cellar? No.”

Even some of the Justices who voiced concerns about the government's argument still seemed reluctant to strike down the law outright.

Justice Kennedy opined, “It's a matter of common sense that…[the false claim to a medal] demeans the medal.”

Justice Kagan questioned whether the Stolen Valor Act could affect other forms of speech. “The reason we protect some false statements…is to protect truthful speech,” she observed. So, “how is it that this statute will chill any truthful speech?”

Defense lawyer Libby conceded that he could not think of a way the Stolen Valor Act would in fact chill speech.

A surprised Kagan replied, “Boy … that's a big concession, Mr. Libby.”

Still, Libby insisted that in order to justify a law like this one, there would have to be an immediate targeted harm that is inflicted or there would have to be some sort of personal gain from the lie.

How much harm, asked Justice Alito. Suppose the lie built up the liar so much that he got a date with a rich potential spouse. Would that be enough harm?

I certainly would not think that is a significant “thing of value,” Libby responded.

Alito, with a wry smile: “Some people might have a different opinion.”

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Is A Lie Just Free Speech, Or Is It A Crime?

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