Sunday, November 13, 2011

Stolen Valor and Free Speech on Obamacare and Abortion

The Supremes have agreed to hear the case of Xavier Alvarez, (right) who introduced himself after election to the Three Valleys Municipal Water District in Claremont, CA with the lie that he had served in the Marine Corps for 25 years and received the Congressional Medal of Honor. He was convicted under the "Stolen Valor Act" and if you think I am going to defend his despicable behavior, you would have guessed wrong. However, the law itself is a vast usurpation of government power, and we should be mindful of the consequences. Do we really want a government so powerful that it can prevent lying?

More importantly, doesn't the first amendment protect lying? That may sound absurd, but let's consider the road we are traveling. If we grant to Congress the power to criminalize lying, who decides? Will there be an Orwellian Ministry of Truth? Ultimately, there are remedies for false speech other than government regulation. In the case of Alvarez, voters could use the recall process to remove him from office. If we allow the government to decide what is truth, it will effectively end free speech as we know it.

Right now there is a case working its way through the courts in Ohio, in which lying in a political campaign has become the subject of government regulation. Steve Driehaus, (left) now a one-term former Congressman from Ohio claimed to be both pro-life and a supporter of Obamacare. The Susan B. Anthony List, a pro-life group, ran ads portraying the vote as support for federal funding of abortion. Whether that it is true or not is irrelevant to this discussion but consider that it is at least a matter of opinion.

Until the eve of the House vote on the health-care legislation, Driehaus and about a dozen other antiabortion Democrats vowed to oppose the health care bill unless abortion language was changed. It was not, so the president, trying to provide cover for those Democrats, agreed to issue an executive order purportedly limiting the funding of abortions under the legislation.

But the president of Planned Parenthood, the nation’s largest abortion provider, contentedly dismissed the order as merely “a symbolic gesture.” The National Right to Life Committee, the U.S. Conference of Catholic Bishops and other pro-life forces grimly agreed.

In Ohio, SB-9 makes it illegal to knowingly "Make a false statement concerning the voting record of a candidate or public official." Driehaus used the law to complain to the Ohio Elections Commission, after which the the Susan B. Anthony List was unable to put up its billboard ads. Of course the members of the election commission are appointed by sitting politicians, but no conflict of interest there.

After the election, where Driehaus went down to much deserved defeat, he dropped the complaint, but then sued the List for defamation in Federal court. Here is where we are at:
The case was assigned to U.S. District Court Judge Timothy S. Black, who ruled on August 1 on procedural grounds (standing, ripeness, 11th amendment, among others) that the List’s lawsuit against the law should be dismissed. Given that the law was therefore still intact, he said the Driehaus defamation lawsuit against the List could proceed, and permitted discovery on whether the List had an animus against Driehaus.

The List has now asked the 11th circuit to reverse the U.S. District Court’s decision that said the List’s lawsuit against the Ohio law should be dismissed. The lawsuit is getting a great deal of publicity, especially on television public affairs programs with hosts who are angry with Driehaus. Driehaus is now working overseas in the Peace Corps. Judge Black has been criticized for not recusing himself, since between 1986 and 1989 he was President and Director of Planned Parenthood Association of Cincinnati. Thanks to Eric Garris for this news.

(Bold added by the editor.) So the List's officers will now be subject to the inconvenience and misery that accrues to discovery, for merely making political speech. Even the ACLU is appalled.
. . .the ACLU of Ohio, in an amicus brief filed last October, came to the group’s defense. The pro-abortion legal group wrote, “The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech, and the best answer for bad speech is more speech.”
Exactly. It has been the habit of established and powerful politicians to use every speech regulating law to suppress citizen activist groups. Consider the case in Parker North, CO:
A federal appellate court today [Nov 9, 2010] held that six neighbors in the tiny subdivision of Parker North, Colo., should not have been forced to register with the government and comply with burdensome campaign finance laws simply for opposing a ballot issue involving the annexation of their neighborhood.
Regardless of the argument that unfettered free speech allows corporations undue influence, the real effect is to suppress the less powerful citizen movements. Corporations and the wealthy will always hire the lawyers necessary to get around restrictions, the average citizen ends up in front of truth tribunals.

H/T to George Will.


  1. I would argue that there is a principled difference between lying and fraud. One is speech. Another is, should, and has long been, a crime. If you fraudulently misrepresent yourself to obtain a contract, should this be no less illegal than fraudulently misrepresenting yourself to obtain elected office? Congress has acted in a narrowly tailored way to remedy a specific abuse which has a clear standard of what is true- ie 'is his name on the records' How does this amount to a blanket right to criminalize lying?

    As for the cavalcade of proceeding abuses, ya that's terrible

  2. Cali,
    I agree in general, but in the case of Alvarez, he didn't lie to get the job, at least to my knowledge. It was only afterwards that he made false claims.
    My constitutional interest is to deny that Congress has the right to even act in the "narrowly tailored" way so as to prevent any infringement on our first amendment rights. I would rather allow shame and ignominy be the remedy than grant that Congress may punish liars.