No Celebrity Gossip Here

United States v. Alvarez, which I wrote about yesterday, is fascinating in its complexity. The government in this case has asked the Court to hold that it can punish people who lie, regardless of whether they lie to extort money, win political office, or just to impress people at the corner tavern.  The principle is breathtaking in its sweep. In the past, the Court has approved statutes that punish knowingly reckless false statements of fact—but only when those statements cause some measurable harm. Examples are a defamatory lie about another person (“X is a serial killer”); a lie used to extract money from a credulous listener (“I own that bridge and I’ll sell it to you); or one told for the purpose of inflicting emotional damage on another (“X’s father beat his mother regularly during X’s formative years”).

But Alvarez concerns what we might call the semi-crazy lie. The defendant told a public meeting that he’d been awarded the Medal of Honor; he hadn’t. The federal government indicted him for a violation of the Stolen Valor Act, which forbids falsely claiming to have won specific military medals.  He didn’t wear counterfeit medals (which is already a crime). It doesn’t matter that nobody believed him (he also claimed to have been secretly married to a Mexican movie star and to have skated for the Red Wings) or gave him anything of value when he said them. The crime was complete when he uttered the words.

The prospect of a new “falsehood” exception to the First Amendment has raised some hackles among the free-speech community.  Do we want to live in a country where the government can monitor our speech for truthfulness in any context it considers important?  Consider Virginia Attorney General Ken Cuccinelli’s Captain Ahab-style fraud investigation of a climate researcher who impudently believes in global warming. I have no doubt that Cuccinelli believes the scientist is lying. As a native Virginian, I also fear he just might find 12 citizens who would agree.

But another interesting facet of the case is illuminated in a friend-of-the-Court brief filed by the Intellectual Property Amicus Brief Clinic of the University of New Hampshire School of Law.  The Clinic mildly points out that the Court could just decide that Medal of Honor is a “collective membership mark” designating members of the Medal of Honor society, made up of all those who have won the Medal of Honor.™ No need for a Congressional charter or even federal registration.  “[C]riminal penalties for the most egregious form of [collective membership mark] infringement,” the brief notes, “are also available at the federal level.”

This won’t happen in this case; neither of the parties has briefed or argued the intellectual-property argument.  But the idea it represents is one that is slowly gaining intellectual ground in American law and society.  The First Amendment and the Intellectual Property Clause of the Constitution (granting Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”) have been crashing into each other for some time now. When that happens, however, courts usually behave like drivers who have scratched someone’s fender in a shopping-mall parking lot: They pretend nothing has happened and walk away whistling.

Enjoining the publication of a book is, in First Amendment terms, almost the biggest taboo of all, the quintessential violation of Blackstone’s definition of “the freedom of the press.” But credulous federal District Judges did exactly that in response to claims of copyright infringement against authors who wrote unauthorized sequels to Gone With the Wind and The Catcher in the Rye.  (Appeals courts in both cases mercifully lifted the injunctions.) What could be more newsworthy, more protected by the Speech and Press Clauses, than news reporting about a former president? But when The Nation obtained a bootleg copy of Gerald Ford’s soon-to-be-published memoir and published a news article quoting less than 400 words, the Supreme Court upheld a copyright infringement suit brought by a publisher.  The word “Olympics” conjures images of ancient Greek warriors straining at the discus—or, for that matter, of rugged mountains in the great Northwest, but Congress granted the U.S. Olympic Committee a complete monopoly on the word, whether used for profit or not, and the Supreme Court in 1987 brushed aside the First Amendment to uphold the U.S.O.C.’s monopoly against a non-profit group that wanted to hold a “Gay Olympics.” Two years later, in his bitter dissent in Texas v. Johnsonthe “flag burning” case—Chief Justice William H. Rehnquist suggested that Congress could simply do the same for the flag, in effect making flag-burning a violation of the Lanham Act. (Several members of Congress introduced a statute to do that, but it mercifully died.)

Proponents of the Stolen Valor Act argue that a conscious lie about military decorations is speech without any value to society.  Even when it doesn’t do active harm, it can be suppressed. Value in that sense of course refers to social utility, to the importance of public debate and the free exchange of ideas. The Clinic’s brief in effect comes at the question from the other side. Like any private firm in the marketplace, Congress creates value by designating medals, and like any business should have the power to prevent that value from unauthorized use.

Over the past 25 years or so, the “value-added” model of the First Amendment has slowly come into focus as an alternative to the older model, which viewed free speech and press as public goods for the use of all.  The vision of a public sphere is going out of fashion. Words, images, ideas are widgets. What matters is their market value.

Should clowns and conmen go around claiming to be heroes? No, and if I see one I will use my right of free speech to expose him.  But do we really want to empower special agents of the Patent and Trademark Office to monitor our conversation for unauthorized use of government-owned words? The remedy seems worse than the disease.

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