Category Archives: Free Speech

Lost in the hoopla over the U.S. Supreme Courts ruling upholding the Affordable Care Act is a fascinating and important free-speech decision that is one of the oddest in the already strange history of the First Amendment.

The case, Alvarez v. United States, was all about lies. The first sentence of Justice Anthony Kennedys plurality opinion is an instant classic: Lying was his habit.

This is a substantial understatement. Xavier Alvarez was a fabulist straight out of Mark Twain. He lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. When newly elected to the local water board in Claremont, California, Alvarez falsely told his new colleagues that he was a retired Marine who had received the Medal of Honor after being wounded repeatedly by the same aggressor.

This last lie was unlike the others. It violated the Stolen Valor Act of 2005, which made it a crime to lie about decorations received in military service. It was already a crime to lie about military service in order to defraud the government or private person of some gain. The Stolen Valor Act criminalized the mere act of lying about military decorations, full stop. No intention to defraud was required.

Alvarez seems not to have sought to gain anything by his lie other than esteem. This made him a perfect test case for a question that previously tormented no one but law professors and their students: Does the right to free speech extend to lying for no otherwise unlawful gain?

On the surface, the issue might seem straightforward. With the possible exception of Justice Hugo Black, who liked to say that Congress shall make no law really meant no law at all, no Supreme Court justice has ever believed free speech to be absolute. At times, the court has said that certain kinds of speech -- such as obscenity, libel and the ill-defined fighting words -- deserve no protection whatsoever. Although that categorical approach has faded from the courts jurisprudence, the justices still believe that speech must have some value to merit protection under the First Amendment.

What value inheres in lies about simple matters of fact? What good could possibly come of Alvarez telling people that he risked his life for his country when he did no such thing?

Three justices -- Samuel Alito, Antonin Scalia and Clarence Thomas -- said the answer was, none. There was no reason, they said, to stop Congress from criminalizing lies about military service.

The other six justices disagreed. In oral arguments, it had sounded as though a majority might uphold the law. But in two separate opinions, neither commanding a majority of five, the justices tried their best to explain what was so useful about lying.

The job wasnt easy. Alvarezs lawyers, as well as some academics who had filed briefs as friends of the court, had urged the most brazen logic of all, one that Twain himself could only have admired: Lying is a necessary and valuable component of the self-presentation in which we all engage.

Originally posted here:
The Constitutional Right to Lie

Thursday, June 28, 2012

Todays Supreme Court decision in United States v. Alvarez is a victory for free speech and common sense.

The Supreme Court in a 6-to-3 vote struck down the Stolen Valor Act, which made it a crime to falsely claim military honors. The Court concluded that the act violated the First Amendment by criminalizing lies without a showing of fraud or other criminal conduct.

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principal. Our constitutional tradition stands against the idea that we need Oceanias Ministry of Truth, Justice Anthony Kennedy wrote in the plurality opinion.

That reference to George Orwells novel 1984 is appropriate. The Stolen Valor Act would have given government the right to weigh the truth or falsity of someones statement and prosecute the person even if no one had been defrauded and the liar had obtained no material benefits.

Xavier Alvarez, the defendant in the case, has quite a track record of lying. He once claimed to have played hockey for the Detroit Red Wings and to have married a starlet. But those paled in comparison to his biggest lie: claiming to have been awarded the Medal of Honor.

Thats when he ran afoul of the Stolen Valor Act, which proponents claimed would uphold the honor of those who legitimately received the medal.

But the law ran afoul of the Constitution by requiring no more than an untruthful statement about military honors, regardless of setting, audience or whether the liar intended to defraud.

The Supreme Court reviewed the rare instances in which mere speech can lead to prosecution in this country. Content-based limits on free expression are tied to criminal fraud, perjury, incitement of violence or defamation of others. Self-aggrandizement is not on the list.

A public database of Medal of Honor winners would have much the same deterrent effect as this flawed law, Kennedy noted. People claiming honors they didnt earn could be quickly exposed, and liars would face the appropriate penalty: public humiliation.

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Stolen Valor ruling a win for free speech, common sense

The U.S. Supreme Court in Washington, D.C.

The Constitution's guarantee of free speech for all Americans outweighs a law created to punish liars who insult the nation's most-decorated war veterans, the Supreme Court ruled Thursday.

In striking down the Stolen Valor Act of 2005, the high court determined the law was too strict and lacked a legal cut-off valve. Justices warned that had the Valor Act been upheld, the government legally could have brought charges against individuals who merely told white lies over beers with a buddy about getting a military award.

"Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought," Justice Anthony Kennedy wrote in the majority opinion.

"The government's argument simply lacked a limiting principle. Perfectly respectable people sometimes lie to protect their privacy, avoid hurt feelings, make others feel better, duck minor obligations, or protect themselves and others from prejudice," says Jameel Jaffer, deputy legal director at the ACLU. "If the court had endorsed the government's sweeping argument, the government could regulate all of these false statements--and even criminalize them."

[Photos: At the Supreme Court.]

Xavier Alvarez in July 2007 told those assembled for a local California water district meeting that he was a "retired Marine of 25 years" who in 1987 "was awarded the Congressional Medal of honor" after he "got wounded many times."

It soon surfaced that none of that is true. Federal investigators soon came looking for Alvarez, and charged him with violating the Stolen Valor Act, created by Congress to penalize individuals who falsely claim to have earned a military citation.

The six Supreme Court justices who ruled to overturn the law made clear in written opinions released Thursday their collective feelings about Alvarez. (Three justices voted to uphold the 2005 law.)

"Lying was his habit. Xavier Alvarez...lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico," Kennedy wrote. "But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground."

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High Court: Free Speech Trumps Insulted War Heroes

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Megaupload's Closure: The Impact on Free Speech and More...

Ethiopia conviction of journalist Eskinder Nega for covering planned protests sparks international condemnation. US Sen. Patrick Leahy suggests cutback in aid to Ethiopia.

Dissident Ethiopian writer Eskinder Nega was today convicted of conspiring to commit acts of terror, sparking an outpouring of international condemnation.

The eloquent, long-standing critic of the Ethiopia Peoples' Revolutionary Democratic Front's rule who has also been jailed at least seven times was awarded the PEN American Center Freedom to Write prize last month. PEN called today's verdict demonstrated a "shameful disdain for Ethiopias obligations to its citizens and to international law."

Judges at the Federal High Court found Mr. Eskinder along with 23 other activists and writers guilty of being involved in plotting a violent revolt. Supporters say his actual crime was voicing pro-democracy views and discussing the possibility of peaceful protests in the wake of the Arab Spring.

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Supporters include US Sen. Patrick Leahy (D) of Vermont, who wants at least $500,000 of existing American aid to Ethiopia's military next year to be potentially withheld, depending on whether the Ethiopian government respects press freedom.

"That means enabling journalists like Eskinder Nega to do their work of reporting and peaceful political participation," he said in a congressional statement on June 14.

The conditions in the bill, expected to become law, also press Ethiopia to protect judicial independence and a host of other human rights.

Despite these moves, Eskinders conviction is just one indication that there will be little change of course from Prime Minister Meles Zenawi's government, which relies heavily on up to $3 billion of Western aid a year in its much-lauded mission to improve health and education.

"The net result of the legislation's passage would be to annoy the current Ethiopian government without really pressuring it," says J. Peter Pham, director of the Michael S. Ansari Africa Center at the Atlantic Council. There is no substance to the conditions and the sole consequence will be denying young Ethiopian military officers a chance to be educated at a US university, he says.

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Ethiopia's terror conviction of journalist raises doubts on free speech

By Jack Phillips Epoch Times Staff Created: June 27, 2012 Last Updated: June 27, 2012

Ethiopia is using controversial anti-terrorism legislation to crush free speech after the countrys high court convicted 24 journalists, opposition politicians, and other people under the auspices of the law, Human Rights Watch said Wednesday.

The New York-based rights organization contends that Ethiopias government needs to amend the laws provisions, which are being used to crack down on expression and peaceful dissent. Meanwhile, politically motivated charges should be dropped against the defendants.

A prominent, award-winning journalist was convicted under the 2009 anti-terrorism law. This case shows that Ethiopias government will not tolerate even the mildest criticism, said Leslie Lefkow, who is a deputy head of the rights groups Africa division.

The use of draconian laws and trumped-up charges to crack down on free speech and peaceful dissent makes a mockery of the rule of law, she added.

Human Rights Watch said the most suspect provisions of the law were used in handing down the convictions Wednesday.

During his pretrial imprisonment, Nathnael Mekonnen, one of the defendants, was quoted by the rights organization as saying that he was tortured for 23 days, including being deprived of sleep, being beaten, forced to stand for hours, and having cold water repeatedly poured on him.

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Ethiopia’s Terrorism Law Crushes Free Speech: Rights Group

It is understandable that after events like those May 30th the knee-jerk reaction is to blame guns and advocate increased gun control. However, in a political climate where our freedoms are constantly being restricted I would urge you to reconsider your position.

Firstly, one cannot directly compare Great Britain to the US and say that more gun ownership means more gun crime. To counter your point, one could look at Switzerland. They have one of the world's highest rates of gun ownership, yet one of the lowest rates of gun crime.

Secondly, you create the limitation that guns are only for home defense. This is wrong however, as the second amendment was created by our founders to ensure self-defense in a much broader sense. This includes threats that could be a deranged man in a caf or some other public place, an invasion by a foreign power, or against our own government should it turn tyrannical. Perhaps if someone had been armed at Caf Racer the loss of lives would have been limited on May 30th.

In examining sourcing, most criminals obtain guns from family members, friends, or in street buys. These methods for obtaining a firearm are already illegal, so the problem isnt a lack of laws but rather we cannot enforce pre-existing ones. How will more poorly-enforced laws change things? Unfortunately, accidents and crime happen. Gun control of the caliber you suggest will only disarm law-abiding citizens while criminals will continue to ignore the law.

Devon Cole UW alumnus, class of 2011

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Free Speech Forum

On April 20, 1912, police chief Keno Wilson sent a letter to commissioner Harris Weinstock, who was investigating San Diegos infamous Free Speech Fight. In no instance, wrote Wilson, has any police officer of this city assaulted, abused, or maltreated in any way, any person whom he has taken in charge, either as an IWW or otherwise.

A few days later, Weinstock interviewed Julius Tum, a tailor from Germany. The poor, inoffensive, harmless young man Weinstocks words had come to San Diego and joined the local union. After a long search, on March 26 he landed a job with J.W. Brem, a prominent tailor, and, says Brem, did satisfactory work.

His second day on the job, Tum wore a red tie. Within the hour, police arrested him. When Chief Wilson asked why red, Tum replied, Why do you wear a blue one? Convinced Tum hadnt heard of the IWW or socialism, Wilson let him go. On his way home, out of curiosity Tum stopped at IWW headquarters at 13th and K, and bought some ten-cent pamphlets.

The next time he wore the red tie, on April 4, three policemen burst into the shop. Youre wanted at city jail, blurted one, as the others cuffed and dragged Tum out the door. This time, Wilson said, Give him the same as the rest.

Officers shoved Tum into the back seat of a patrol car. On the ride north, two rifles were pointed at his chest. Other cars police and civilian carried other prisoners. The caravan drove to the city limits at Sorrento Valley, where vigilantes awaited them at the police substation.

A large American flag hung from a long beam. Kiss it, one ordered Tum.

I had no objection, Tum told Weinstock, and said I would. But as he stepped forward, a club bashed the back of his head so hard, he thought his skull had split. Then others crowded around and showered blows with clubs and stones on my body. They aimed at my head and face and rarely missed. This beating lasted for about 20 minutes.

Feeling the fog of at least one concussion, Tum dragged himself off. Behind him, he heard grunts and cries and the crack of breaking bone.

Vigilantes herded their prey into cars. They drove to the county line at San Onofre, where an even larger mob of police, constables, and civilians searched them and took Tums money.

From photos shown him later, Tum identified several vigilantes. Francis J. Bierman, a writer for the San Diego Union, was in command, Tum said, which explained why they called him Captain. Officer Charles de Lacour and detectives Joe Myers and Harry Sheppard stood close by, as did J.M. Porter, Walter P. Moore, and Ed Walsh the last three, Tum told the Los Angeles Express, are real-estate men.

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Violence against free-speech activists.

WASHINGTON The Supreme Court's affirmation Monday that corporations have the right to engage in direct political activity squelched a long-shot hope of campaign finance reform advocates of rolling back Citizens United, the 2010 decision that ushered in a new era of unbridled campaign spending.

In a 5-4 decision, the court summarily overturned a century-old Montana state law that banned corporate political expenditures, saying it conflicted with the First Amendment speech rights of corporations contained in the Citizens United case.

The ruling, while expected, served to underline the bleak landscape facing proponents of campaign finance regulations just a decade after the landmark McCain-Feingold Act restricted large, unregulated donations in federal elections.

Now, not only can corporations spend unlimited amounts of money on politics, but the 2012 campaign has been marked by the explosive growth of 'super PACs" independent political committees produced by a lower court decision that followed Citizens United and fueled by wealthy individuals and private companies. And with Monday's action, the Supreme Court made it clear that any state laws seeking to ban corporate political expenditures are unconstitutional.

Such spending is "threatening the health of our democracy," said White House spokesman Eric Schultz, adding that the court missed an opportunity to correct the "mistake" it made in Citizens United.

The silver lining, reform advocates hope, is that the return of big money into the system will trigger a public backlash.

"By the time this election is over, the country is going to look at the campaign finance system we have and think it is corrupt and insane," said Fred Wertheimer, president of Democracy 21. "And this is going to create major new opportunities for reform. When the country demands change, elected officials tend to pay attention."

But the court's ruling in the Montana case makes it that much harder to curtail Citizens United, in part because it affirmed the idea that independent expenditures are not corrupting. Without a change in the makeup of the court, overturning the decision will require a constitutional amendment, no small feat.

In the meantime, campaign finance reformers find themselves fending off challenges to remaining laws, particularly disclosure rules now being assailed by conservatives.

The Montana case hinged on a law dating to 1912 that attempted to curb the immense influence copper mining companies then exerted in state politics. (One so-called Copper King, William Andrews Clark, secured a U.S. Senate seat in 1899 by bribing state lawmakers.)

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Supreme Court affirms corporate free speech

The release last Friday of nine activists in Azerbaijan jailed since last spring for organising peaceful protests against the government should not distract international attention from an ongoing crackdown on free expression in the country, Amnesty International has warned.

While we welcome the long overdue release of these nine protesters, they should never have been behind bars in the first place, said John Dalhuisen, Europe and Central Asia Director at Amnesty International.

The release came ahead of todays vote on a report on political prisoners in Azerbaijan by the Committee on Legal Affairs and Human Rights in Strasbourg. The report prepared by Christopher Strasser, a German MP denied entry to the country, lists around 100 alleged political prisoners who should be released immediately or given a fair trial. The report was adopted by a narrow majority.

Amnesty International very much welcomes the adoption of Strassers report and urges the Azeri authorities to cooperate with the Parliamentary Assembly in the resolving this longstanding issue said Dalhuisen.

The nine activists recognised as Prisoners of Conscience by Amnesty International released Friday night are Arif Hajili, Tural Abbasli, Rufat Hajibaili, Ahad Mammadli, Mahammad Majidli, Zulfugar Eyvazov, Sahib Karimov, Ulvi Guliyev and Babek Hasanov.

In an act presumably intended to stop his campaigning activity, Tural Abbasli, the leader of the youth wing of the opposition Musavat Party, has been summoned to begin military service in July.

The day before President Ilham Aliyev signed a decree ordering the release of the nine, Hilal Mamedov, the editor of a minority language newspaper, was arrested on spurious drugs charges.

The arrest followed Mamedovs posting on Youtube of an Azerbaijani rap battle entitled Who are you, come on, off you go which became a viral hit and was subsequently adapted by opposition campaigners in Russia to attack President Putin.

Local rights activists suspect he was arrested partly to prevent greater media interest in the rights of the Talysh minority he campaigns to protect following the videos publication.

He was detained by police without explanation, taken to a police station and searched, where officers claim to have found a package containing 5 grams of heroin on him. They claim to have found a further 20 grams in his home.

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Azerbaijan crackdown on free speech continues amid activists’ release