The SCOTUS’s Other Mistake

The New Criterion Blog | Published on June 29, 2012

By James Bowman

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Lost in the outcry over the Supreme Court decision in favor of Obamacare was what ought to have been an equal degree of public outrage over another one, namely the Court’s upholding of a decision by a three-judge panel of the Ninth Circuit Appeals Court to strike down the Stolen Valor Act. Passed in 2006, this statute made it a crime punishable by up to a year in prison falsely to represent oneself as the recipient of a military decoration—and especially (as in the case of the successful respondent, one Xavier Alvarez) the Congressional Medal of Honor. Once again, too, the allegedly conservative Chief Justice, in this case joined by Justice Kennedy, was on the wrong side, along with all four of the Court’s liberals, whose reliability in deciding everything as they were put there by Presidents Clinton and Obama to decide it must be a great comfort to their ideological confreres.

These six, though on slightly different grounds, all found that the Constitutional right to free speech extended to a right to lie about having received the highest military honor our government confers. Justices Scalia, Thomas and Alito were the usual holdouts against such progressive ideas that the other members of the Court find appealing. Justice Kennedy, writing on behalf of the Chief Justice and Justices Ginsburg and Sotomayor, acknowledges in his opinion that restrictions on free speech have been allowed in a few cases, including fraud and perjury, but these exceptions to the First Amendment rule are supposed, unlike the Stolen Valor Act, to allow only prohibitions of speech that causes palpable harm to others or that is intended to “secure moneys or other valuable considerations.”

As if honor were not a valuable consideration! “Perjury,” writes Justice Kennedy, “undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system.” By contrast, “the [Stolen Valor] statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain”—as it is in cases of fraud. The key word there is “material.” Justice Kennedy can imagine no harm that is worth the law’s attention which is not material. He should have remembered the words of Iago in Shakespeare’s Othello who, like other Shakespearean villains (Edmund in King Lear comes to mind) is allowed to give voice to general truths that end up being self-condemnatory.

Who steals my purse steals trash; ‘tis something, nothing;
‘Twas mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.

Just as, in the case of perjury, unpunished lies will debase the currency of justice, so will lies no longer punished under the Stolen Valor Act debase the currency of honor. We are driven to the conclusion that, to six of the nine Supreme Court justices, honor itself is not a real thing or something whose degrading in our national life can be any harm to anybody worth caring about. “The Government points to no evidence to support its claim that the public’s general perception of military awards is diluted by false claims,” writes Justice Kennedy—which makes one wonder what he imagines is the evidence that the public’s general perception of our justice system is diluted by perjurious statements. It’s not “evidence” that’s wanted here but, as the Government put it, common sense.

When the Founders in the Declaration of Independence pledged “our lives, our fortunes and our sacred honor” did they have any sense of a lesser reality belonging to the third item in that list than to that of the first two? On the contrary, everything we know about them tells us that they regarded honor as, if anything, more palpably present in their lives and more precious than life or fortune, since both life and fortune would have been more secure if they had felt they could ignore the demands of honor. The importance with which the government is allowed to regard its own system of recognizing honorable behavior is embodied in the statute which elevates that system to a position among the few enumerated exceptions to the free speech rule. By denying the government that right of elevation, the Court has also denied the importance of honor in our national life.

James Bowman, the author of Honor, A History and Media Madness: The Corruption of Our Political Culture, is a resident scholar at the Ethics and Public Policy Center.