Normally I wouldn’t cross-post this in toto, but since Wittgenfeld’s stuff started here, I thought y’all should get a chance to weigh in as well. If anyone finds any errors of fact, or something that deserves clarification, please let me know.

[EDITORS NOTE: This is the longest blog posting in history, so you might want to print it out and read it when you have the time. I apologize for the length, but I think it is necessary to make the point I wanted to make; to wit, that the Supreme Court’s answer to the Stolen Valor Problem is not only unworkable, but unnecessarily puts folks in jeopardy of legal or physical disputes. Also, thanks to Ranger Up for the appropriate graphic.]
As you know, I disagree with the Supreme Court’s ruling in Alvarez in many aspects. Fair enough, I disagree with a lot of legal decisions. Most folks seem pleased with the decision, thinking that the Stolen Valor Law somehow chilled free speech. That was something even the defense in the case didn’t argue, but whatever.
Nonetheless, despite the ruling, I wanted to focus on what their answer was to stolen valor phonies, and how the “free market of ideas” could be used to counter them. Specifically, the plurality decision’s author Justice Kennedy stated that:
The Government has not shown, and cannot show, why counter speech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counter speech, of refutation, can overcome the lie.…
The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth…
It is a fair assumption that any true holders of the Medal who had heard of Alvarez’s false claims would have been fully vindicated by the community’s expression of outrage, showing as it did the Nation’s high regard for the Medal. The same can be said for the Government’s interest. The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradition. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.
It might not need handcuffs or a badge, but as I will show later, it better have at least a concealed carry permit, because these phonies seldom respond to you outing them with some sort of cheery aplomb.
But this answer fails on two separate levels, the first eloquently stated in the dissent written by Justice Alito:
Because a sufficiently comprehensive database is not practicable, lies about military awards cannot be remedied by what the plurality calls “counterspeech.” Ante, at 15. Without the requisite database, many efforts to refute false claims may be thwarted, and some legitimate award recipients may be erroneously attacked. In addition, a steady stream of stories in the media about the exposure of imposters would tend to increase skepticism among members of the public about the entire awards system. This would only exacerbate the harm that the Stolen Valor Act is meant to prevent….
….the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are, and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps. Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country’s top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags.
Now, I disagree with Justice Alito that a database such as that suggested is not possible, in the sense that one couldn’t be made. But even more vigrorously do I dispute the majoritys notion that such a database would serve to counter these liars, since most people won’t even know enough to look these things up, and if they do and the guy is in fact a liar, than we run into the problem that the Justice cited about exacerbating the problem.
But even so, what the decision gives as a whole is a sort of remedy which is to give a sort of credence to a vigilante group of veterans and others who counter the lies with truthful speech. As my friend Jonn Lilyea aptly noted the other day:
The USSC decided that the public sector is doing a fine job of policing the ranks. There may be some illiterate [idiots], like Sharkey who think that the USSC’s overturning of the Stolen Valor Act means that we can’t do here what the government won’t do – but that’s not it at all. Like I told the ABC crew, it probably means that decision was good for our business. More idiots, like Sharkey, think they can get away with their thievery.
But This Ain’t Hell and all of our partners are the stocks and dunking chairs in the village square of the internet – a place where folks can come and throw rotten tomatoes at the valor thieves. The Supreme Court gave us a warrant to be the internet’s vigilantes and bounty hunters.
As Jonn notes, from a strictly business sense, this is good for military bloggers who will likely enjoy some increased traffic. But from the standpoint of acknowledging real heroism etc, it would have been better if the Supremes had gone the other way.
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