Wednesday, September 15, 2010

Just How Broad IS the First Amendment?

This blog is mostly about the First Amendment, and also has many posts about court decisions that turned the original meaning of the First Amendment on its head. Perhaps it will be useful to look at a recent circuit court decision on another part of the First Amendment, the free speech provision. Here is the entire text of the First Amendment (underlining added):

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble, and to petition the Government for a redress of grievances."

That's simple enough.  The underlined portion is the free speech clause. We all want free speech, right? As with the religion clauses, we would hope to understand the intention of the Founders in order to properly interpret the Amendment in court. Is free speech unlimited? Free honest speech is, and I'm sure that was part of the intent. Free political opinions are protected, and that may have been one of the primary motivations for the clause. But it also seems reasonable that the Founders did not intend people to get away with dishonest speech. We don't accept libel or slander. You can't yell "fire" in a crowded theater. Etc.

The recent case, decided by the 9th Circuit Court by 2 to 1, is about a Federal law that makes it illegal for someone to misrepresent his/her own military valor. The case is about a man who claimed to have won the Bronze Star, a very high honor for military members. This man, probably for political advantage, claimed to have won that award even though that is not the case. The court said the Federal law violates his free speech rights because his lie does no harm.

So the voters are left to think, by his own claims, that he is a man of different character. He also diminishes the honor of those who have actually won the award (if anyone can claim it, then it will not strike people as much of an honor to say, even honestly, that one earned the award). Would it be a logical extension to say that the military's uniform regulations, which allow the wearing of only awards actually received, is unconstitutional? Does that do any actual harm to the others in uniform?

What about perjury? If the false testimony does not change the outcome of the case, is it illegal? How about lying about my age on an application of one kind or another? Lying about my age to get into the military? Lying about my age to be able to make that Presidential run I've been secretly planning? Isn't it my free speech right to "embellish" my resume, even to the point of outright lies?

Do we want courts interpreting the Constitution this way? How much of this kind of interpretation will it take before the Constitution becomes meaningless?

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