Stolen Valor Act Unconstitutional: Overbroad and Infringes on First Amendment Free Speech

 

The Supreme Court of the United States ruled on June 28, 2012 that the Stolen Valor Act of 2005, 18 U.S.C. §704, was unconstitutional because it infringed on freedom of speech guaranteed by the First Amendment.  The plurality opinion was authored by Justice Kennedy with Chief Justice Roberts and Justices Ginsburg and Sotomayor joining said opinion.  Justices Breyer and Kagan concurred in the judgment with a separate opinion.  Justices Alito, Scalia and Thomas dissented.

Little attention was given to this case initially because it was decided on the same day as the landmark healthcare case.  Few outside of military watchers paid attention until the healthcare case had been discussed and picked apart.  Now with elections looming, lawmakers are anxious to re-visit an issue that has wide bipartisan appeal.

Justices Kennedy and Breyer left the door open for new legislation that would correct the deficiencies of the original act that passed Congress with a unanimous vote.  Last year, Senator Scott Brown (R-Mass.) and Representative Joe Heck (R-Nev.) anticipated the Court’s ruling and introduced the Stolen Valor Act of 2011 (H.R. 1775; S.1728) including the language “with intent to obtain anything of value.”  Other lawmakers have joined the fray including the sponsor of the original act, Senator Kent Conrad (D-N.D.), who would like to revise the original act to meet constitutional muster.  Senator Jim Webb (D-Va.) introduced the Military Service Integrity Act of 2012 on July 11, 2012 with the language “with the intent of securing a tangible benefit or personal gain” directly in response to comments of the Justices.

Fraud, perjury, libel, incitement to violence and treason remain the only speech that can be constitutionally criminalized.  Lying about military honors with intent to get something of value is likely to soon join that list.

~Mary Susan Lucas~

Happy Banned Books Week!

In 1982, the American Library Association (ALA) created Banned Books Week in response to a rise in challenges to books in libraries, schools and bookstores.  Banned Books Week is sponsored by the ALA, the American Booksellers Foundation for Free Expression, the Association of American Publishers, the American Society of Journalists and the National Association of College Stores, and is endorsed by the Center for the Book of the Library of Congress.  Held annually during the last week of September, Banned Books Week highlights the harms of censorship while “celebrating the freedom to read and the importance of the First Amendment.” ALA Banned Books Week Site

In celebration of this year’s Banned Books Week, the CSL library is spotlighting historically banned or challenged books in a display case in the library.  The display includes Harper Lee’s classic To Kill a Mockingbird, Nabokov’s Lolita, Walker’s The Color Purple, Salinger’s Catcher in the Rye, and many more.  For more information on the reasons behind the banning of certain titles, see the Banned or Challenged Classics page, here. We encourage students to drop by the display case during a study break or between classes.

According to the American Library Association, the 10 most challenged books of 2009 were:

1. ttyl; ttfn; l8r, g8r (series), by Lauren Myracle

2. And Tango Makes Three, by Peter Parnell and Justin Richardson

3. The Perks of Being a Wallflower, by Stephen Chbosky

4. To Kill a Mockingbird, by Harper Lee

5. Twilight (series), by Stephanie Meyer

6. Catcher in the Rye, by J.D. Salinger

7. My Sister’s Keeper, by Jodi Picoult

8. The Earth, My Butt, and Other Big, Round Things, by Carolyn Mackler

9. The Color Purple, by Alice Walker

10. The Chocolate War, by Robert Cormier

The American Library Association’s Office of Intellectual Freedom (OIF) is featuring a series of blog posts on the creative ways libraries are celebrating Banned Books Week.  Readers and librarians are also celebrating Banned Books Week on ALA island in Second Life, and on Twitter with the hashtag #BannedBooksWeek. The OIF has also created a YouTube video to depict the top 10 most frequently banned or challenged books in 2009.

Thank you for celebrating Banned Books Week!  Read something you love!

- Lyn Batty -

Love Tweeting… ?

In a case of first impression, Courtney Love tested constitutional theories of freedom of speech last month in an anti-SLAPP motion to dismiss the first Twitter-libel lawsuit.  According to Matthew Heller with OnPointNews, “Love argues that Twitter is a public forum and she spoke on a matter of public interest by warning ‘other consumers about her nightmare experience with Simorangkir and Simorangkir’s pattern of criminal and bad faith conduct.” She says she hired Boudoir Queen to make custom pieces of clothing from raw materials she gave her but the designer held the clothing ‘hostage’ after she refused to pay an inflated invoice.” Additionally the motion to dismiss goes on to state, “every single one of the allegedly defamatory statements made by Love for which Plaintiff has brought suit constitutes ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of… contempt,’ and language used ‘in a loose, figurative sense’ that has been accorded free speech protection as a statement of opinion rather than an actionable statement of fact.” Furthering the argument, “Love goes on to say that ‘To the extent that the statements do contain provably false facts that are reasonably understood as regarding Plaintiff, they are true and accurate as far as Love understood them.’

So what are SLAPPs and Anti-SLAPP motions? In referencing the California Anti-SLAPP project, “SLAPPs — Strategic Lawsuits Against Public Participation — are civil complaints or counterclaims (against either an individual or an organization) in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the U.S. Constitution. Typically, SLAPPs are based on ordinary civil tort claims such as defamation, conspiracy, and interference with prospective economic advantage.”

Intrigued? Check out Oxford Scholarship Online: Defamation and Freedom of Speech by Milo, Dario, Partner, Media Law Department, Webber Wentzel Bowens Attorneys, part-time lecturer, University of the Witwatersrand, Johannesburg

What do you think about Love’s constitutional arguments that Twitter is a public forum and her statements were of public interest?  Will she prevail?

-Liz McCurry-