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~

Mystery and Intrigue at the U.S. Supreme Court

Did Justice Thomas leak insider Court information to Jan Crawford of CBS-TV regarding how Chief Justice Roberts was running the Supreme Court? Crawford said that Judge Thomas believed that “unlike Roberts he (Thomas) didn’t pay attention to media coverage on the court, and didn’t go wobbly like Roberts and he himself didn’t pay attention to media coverage.”

This story was shared on July 1 on CBS Face the Nation and just this past Sunday July 8^th Crawford did a follow-up story on the mood of the Supreme Court just before the health care plan decision was released to the public.

Crawford went on to say that discord at the Supreme Court is deep and personal after Chief Justice John Roberts’ surprise decision to side with the liberal justices in upholding a large portion of the president’s health care plan.

According to Jan Crawford, the conservatives feel a sense of betrayal, because the conservative justices believe that Roberts changed his mind for the wrong reasons.

Sources say that if Roberts had been with the liberals from the beginning that would have been one thing, but switching his position – and relatively late in the process – infuriated the conservatives.

Roberts initially sided with the four conservatives to strike down the heart of the health care law — the mandate that would require all Americans buy insurance or pay a penalty.

When Roberts changed his mind and joined with the liberals, he tried to get Justice Kennedy to come along, but of course as we all now know, Kennedy would not join Roberts.

The conservative members of the Court wrote their own opinion and wanted theirs to look like a majority decision in the hope that Roberts would join them and strike down the mandate.

There have been many big fights in the Supreme Court before and we will not know the effect of this dust up for a while, but we can only wonder how this will impact the 2012-2013 term. Will the U.S. Supreme Court remain divided along conservative and liberal lines?  Only time will tell.

~Jane Fraytet~

Special Edition: Free Speech and Animal Cruelty

As the year comes to an end, this will be the last post for Charlotte Law Library News until the new year.  This article is brought to you courtesy of Kim Allman, Circulation Manager.

On Tuesday, October 6^th the United States Supreme Court heard oral arguments in what may become a significant legal ruling on issues of free speech and the language of  Title 18 U.S.C. § 48. In 1999, Congress passed a law that was primarily aimed at “crush videos” which depicted women in high heels or bare feet stomping small animals to death. § 48 deals with depictions of animal cruelty and the scope of the law is broadly written. The first case to be tried under the new law was United States v. Stevens, 533 F.d 218 (3^rd Cir. 2008).

Defendant Robert J. Stevens was arrested for the sale of videos depicting pit bull dog fights that had been filmed in Japan where dog fighting is legal. Stevens had edited the footage together and distributed it for sale through various underground publications and had advertised the videos in Sporting Dog Journal. Stevens was tried and convicted under § 48 and given a sentence of 3 years which was almost two times more than the one term served by NFL player Michael Vick, who had was convicted of conducted dog fights. Attorney Patricia Millet appealed Stevens’ sentence on the grounds that § 48 as it is currently written violates constitutional free speech.

The justices weighed into counsel’s arguments by asking pointed hypothetical questions as to what constitutes a depiction of animal cruelty and what does not? Justice Roberts asked what would be the difference between Stevens’ video and that of videos that were meant to be educational, or political, or religious in content yet showed animals being killed or harmed. Justice Roberts cited the animal rights organization PETA as an example. Justice Sotomayor asked Attorney Neal Katyal who was counsel for the state as to where he would draw the line on free speech in Steven’s video which was promoting dog fighting, and that of documentary film maker David Roma, who had produced a film against dog fighting that was far more graphic in its depictions. Justice Breyer sought to have counsel define if films of hunting or fishing could not be considered depictions of animal cruelty. Justice Scalia brought up films of bull fighting which is legal in Spain but illegal in the United States, “…what if I am an aficionado of bullfights and I think, contrary to the animal cruelty people, I think they ennoble both man and beast, and I want to persuade people that we should have them?”

The Supreme Court has not yet ruled on this case. The transcript makes for interesting reading and gives significant insight regarding the issues. You can read the transcript at:  http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-769.pdf What do you think about this issue?  How do you think the court will rule on this case?

-Kim Allman-

Obama’s Supreme Court Nomination

As you may have heard President Obama has nominated Sonia Sotomayor for the Supreme Court. Predictably the legal blogosphere is split along ideological lines. Conservative blogs such as Bench Memo (National Review magazine) have questioned Sotomayor’s activism. On the left blogs such as The Nation Sotomayor praise the nominee.

Looking for a less serious take on the nomination? Above The Law manages to work in a Jennifer Lopez reference. Slate’s Jurisprudence mixes clever headlines (“When Barry met Sonia”), pronunciation (“How to Pronounce Sotomayer” – with audio!) along with substantive analysis.

For more information on the Supreme Court check out the Library’s U.S. Supreme Court Briefs and Records database here. It contains the full text of over 200,000 records and briefs filed with the U.S. Supreme Court from 1832 to 1978. (Available to CharlotteLaw community members only.)

-Tom Hemstock