The transcript of yesterday's oral argument before the U.S. Supreme Court in U.S. v. Alvarez, the Stolen Valor Act case, is here. Four relevant questions unasked by either the justices or the parties or, apparently, the amici curiae on either side:
Evidence of Harm
1. Stolen prestige: Where is the evidence that the Medal of Honor or other military decorations are less respected by the public because they have been falsely claimed? Has that question ever been polled or otherwise subjected to social science inquiry?
2. Stolen esteem: Where is the evidence that authentic recipients of the Medal of Honor or other military decorations are less admired by the public because their awards have been falsely claimed by others? Has that question ever been polled or otherwise subjected to social science inquiry?
3. Stolen mental health: Where is the evidence that authentic recipients of the Medal of Honor or other military decorations are mentally harmed in any clinically measurable degree, as for example as in PTSD, as distinct from being irritated, offended or angered by the fact their awards have been falsely claimed by others? Has that question ever been subjected to psychological or psychiatric research?
A Preventive Alternative
4. Instead of criminalizing false claims to military honors, why not make them easily discoverable as a deterrent? In today's hearing Justice Scalia briskly dismissed the idea that the risk of being discovered might discourage such behavior.
You know when there is a sanction in place you think twice before you tell the lie. But if there is no sanction except you might be exposed, who's going to expose you? That sanction already exists, and there are a lot of people nonetheless who tell the lie. You really expect the government to hire investigators to go around the country outing people who falsely claim military honors? That's not going to happen.
(Counsel for Alvarez): Well, Justice Scalia, isn't that exactly what's happening right now with this law? Because the law is on the books, the law is sending FBI agents out to investigate these allegations. How do they find out about it? It's because it's recorded. Individuals hear the statement and they think it may be false. They investigate it. And -- and, and conduct their own investigations. So that's what happens. And that's what's supposed -- that's -- that's the whole idea of more speech.
The "more speech" prescription invokes the foundational Supreme Court case of Whitney v. California (1927), upholding a state law criminalizing the organization of labor with the goals of syndicalism. In his famous opinion concurring in the result but reading more like a dissent, Justice Louis Brandeis stated:
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. 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 applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.
The majority's conviction that speech and organizing that the government saw as having a "bad tendency" could be punished without offending the First Amendment was later abandoned by the court. With respect to Alvarez, meanwhile, the "more speech" approach is being pursued in any event, by a congressman looking into the possibility of a Pentagon-maintained database simply listing all military awards winners—a lookup registry for those wanting to check such claims.