LIBEL TOURISM AND STOLEN VALOR: BRUCE KESLER
http://www.familysecuritymatters.org/publications/id.6809/pub_detail.asp
Free Speech Limits? Libel Tourism & Stolen Valor
Bruce Kesler
Congressional intent and judicial interpretation of the first amendment may conflict. Two recent examples:
The US Senate just passed by unanimous consent the Securing the Protection of our Enduring and Established Constitutional Heritage Act, HR 2765 (SPEECH Act). It is expected to pass the House. There’s little reason that the president shouldn’t sign off.
My good friend Rachel Ehrenfeld, doughty immigrant that she is, took our Constitution to heart and waged an at first solitary campaign to restrict “libel tourism†when she was its victim for a book she’d written exposing the enemy-funding financial dealings of a wealthy Arab. She acquired powerful allies, across the political spectrum, until New York State passed a law that required judgments in foreign courts where our level of free speech protections do not rule to meet US standards in order to be enforced in the US.
Below the fold is Rachel’s press release. Here are the AP and here the AFP news reports.
In past conversations with Rachel I’ve had some concerns about how US standards of free speech may be interpreted by the courts. Those in positions to know, she says, feel US standards of libel are well-enough defined so there’s confidence in prevailing without undue blockage of the Congressional intent. So be it to see.
Yet, one can’t find enough comfort in that. A recent court decision says that those who wear unearned medals of valor are expressing free speech, contrary to the US Stolen Valor law that says it is punishable.
My good friend Doug Sterner who along with his wife Pam, again doughties of the first order, single-handedly as citizens succeeded in the Congressional enactment of their drafted Stolen Valor Act. Doug, always optimistic, tells me that this court decision may actually be a good thing. It has increased the visibility of the DOD and Congress neglected deficiency that there is not a searchable repository of earned medals of valor. Further, the prospect of the law’s status reaching the Supreme Court is good, and a good thing, with this judge’s entire 10th District panel of judges yet to weigh in if the Obama administration appeals, other federal judicial districts (particularly the 9th) yet to decide a pending case, and other judicial districts upholding the law.
Libertarian law prof Eugene Volkh writes that he is “unpersuaded†by the decision against the Stolen Valor Act. “Knowingly (or recklessly) false statements of factâ€, he says, are not protected by the first amendment. In short, fraud is fraud. There’s no question of “is†there. Furthermore, there is in almost all cases the intent to benefit from the fraud, either financially in government and employment benefits, or “in kind†via perks (yes, even the free beer to a “heroâ€), or in advancing a political position. Though in many cases there may not be a demonstrable or material harm provable against another, aside from generally devaluing the true heroes, this fraud is not free speech but an abuse of the intent of Congress in authorizing medals of valor, in passing the Stolen Valor Act, and — most relevant — an illegitimate abuse of free speech rather than protected free expression.
Again, so it will be for the courts to decide.
The struggles over legitimate free speech and the illegitimate will ever continue as long as there are doughty patriots.
FamilySecurityMatters.org Contributing Editor Bruce Kesler served in USMC Intelligence in Vietnam and was a researcher at the Foreign Policy Research Institute. He worked as a financial and business operations exec for Fortune 100 and small companies, and for the past two decades as an independent certified health and benefits consultant and broker. His columns have appeared in many major newspapers. He currently blogs at Maggie’s Farm.
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