US court, lies protected as free speech?

Xavier Alvarez told some pretty big lies about his military service during a 2007 municipal water-board meeting in California — that he retired as a US Marine after 25 years, during which time he was awarded the prestigious Medal of Honor. When it turned out Alvarez had never even been a Marine at all (let alone many of the other things he has claimed to be over the years – a Detroit Red Wings hockey player, an Iranian hostage crisis hero), the water board member was convicted under a 2006 federal law making it a crime to lie about receiving military honours.

Last week, an appeals court reaffirmed a lower-court ruling throwing out the conviction on logic that has been praised by free-speech advocates: The First Amendment, the court concluded, protects fibs told about military service, rendering the Stolen Valor Act unconstitutional. Other courts have disagreed about the constitutionality of the law, and the final word come could eventually from the Supreme Court.

Several judges dissented, arguing that “the right to lie is not a fundamental right under the Constitution.” But Chief Judge Alex Kozinski countered that criminalizing lies about military service could lead to making even more mundane falsehoods illegal.

“If false factual statements are unprotected,” he wrote, “then the government can prosecute not only the man who tells tall tales of winning the congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes.”

(JDate, which must surely be making its debut here in sweeping legal scholarship, is a popular online dating site for Jewish American singles.)

 

Cablegate's long-term meaning for free expression

Imagine if an American politician had called for the execution of the editor of the New York Times.

Or if the newspaper’s bank had declined to handle its business any more because it considered that it had published information that promoted illegal activities. There would be an outcry and widespread denunciation of such an assault on press freedom and the First Amendment. The latest revelations today, following Wikileaks’ publication of strategic sites considered vital to the US’s national security will increase the pressure to isolate and condemn Wikileaks and anyone who supports the site and Julian Assange. Not only have Amazon and PayPal now refused to do business with Wikileaks, but students at Columbia University have been warned that they risk their job prospects if they download the leaked diplomatic cables or even make comments about the documents on Facebook and Twitter. The advice was sent to students by Columbia’s Office of Career Services, following a tip off from an alumnus working in the State Department.

It is perhaps the fallout from Wikileaks’ mass publication of diplomatic cables, rather than the content of the cables themselves, that may do the most harm in the end. When one of the world’s leading liberal educational institutions advises self-censorship to its students, rather than encouraging them to explore and read one of the most significant publications of our time, it is clear that we are in the grip of such a damaging panic that it is threatening the core principles of freedom of speech. The fury over Wikileaks’ publication of the diplomatic cables is not only undermining the United States’ historic commitment to the First Amendment, but the Obama administration’s avowed support for internet freedom (spearheaded by Hillary Clinton) now looks decidedly hollow. It is the Swiss who currently emerge as the world’s champions of freedom of information, vowing to stand up to political pressure.

Wikileaks is here to stay. Wikileaks.org is still offline, but the content can now be accessed on more than 300 mirror sites. Even if the United States and its supporters such as France were successful in removing it for good, another version or a successor to Assange and his colleagues would take their place. Prosecuting Assange under the Espionage Act (one of the most draconian pieces of legislation in US history) will solve nothing beyond chilling the freedom not only of whistleblowers, but of everyone who wants to enjoy the right to share and exchange information freely. When Daniel Ellsberg faced trial for leaking the Pentagon Papers in 1973, it was press freedom and the public’s right to know that was in jeopardy. This time it’s the freedom of expression of us all. Whether you think Wikileaks’ behaviour is reckless or admirable, we all need to take the long view in considering the consequences.