In an earlier essay, we discussed aspects of legal reasoning, for example as they apply to Free Speech. The other day the Supreme Court issued a high-profile ruling in this area, overturning the Stolen Valor Act. The way this was reported in the oligophrenic press (which now includes most of the media) was that “the Supreme Court says it’s okay to lie.”
Without reading the text of the decision, or knowing the case law (for which see the excellent Wikipedia article), one can do no more than hazard a guess as to the court’s rationale: but an educated guess, for all that.
First, sociopolitical basics suggest that the court had a sound legal basis for their ruling, simply because it was bound to be so unpopular and easily distorted or mocked. Probably the law forced them to go there.
Second, there is a huge conceptual difference between a lie in general (an alethic notion) as opposed to, so to speak, an “applied lie” -- such as perjury, slander, or fraud (all legal notions). Thus, while shooting the breeze with your buddies, you might goose the figures while boasting of the clever killings you made on Wall Street, without legal peril; but misrepresent your income on your tax form, you can be sanctioned by the law.
Thus, consider the following dialogue:
Mrs. Jones: How do you like my new hat, dear, with the cockleshell-and-pineapple trim?
Mr. Jones: Umm…. It’s lovely.
If Congress can criminalize lying, Mr. Jones could go to jail.
Or consider -- in the matter of Stolen Valor -- the following actual incident from the case-files, where Beppo the Broken-Down Circus Horse confides in Doctor Dolittle:
You know, Doctor, you mightn’t believe it, but I come of a very good family. My mother used to trace her pedigree way back to the battle-charger that Julius Caesar used -- the one he always rode when he reviewed the Praetorian Guard.
-- Hugh Lofting, Doctor Dolittle’s Circus (1924)
Ha -- a likely story! Off to the glue-works with you, Beppo’s-Mom!
So: Much of humanity (and, apparently, equinity) lies, exaggerates, fudges the facts, bends the truth, tells stretchers, much of the time. This is a matter, perhaps, for your priests and pastors -- and your parents, to begin with, while there’s still time -- but not for the Legislative Branch. If you use a lie to commit fraud, on the other hand, there are already laws on the books. Thus, you might be prosecuted for falsely claiming (in pursuit of a judgeship, perhaps) that you had a summa cum laude from Harvard Law, and that you had been a decorated colonel in the Marines. Both lies constitute substantive fraud; we don't need Congress to gratuitously stigmatize the latter lie over the former.
Such basic considerations render plausible why not only the Supreme Court, but lower courts before them, found the Act “facially unconstitutional” (what a phrase: meaning, unconstitutional on the face of it). The Act was clearly crafted to appeal to public passions of the moment -- our statute books are littered with such things. Legislatures regularly pass make-believe measures to mollify some group or other. Recently, for instance, the notorious California legislature passed an act criminalizing something-or-other (I forget what, doubtless something currently unpopular; for logical/legal purposes it doesn’t matter) -- which they are at liberty to do, whether wisely or not -- and additionally made the criminal status retroactive. And that’s a no-no -- Civics 101 -- or rather, Civics 1, because we learned that back in primary school: No ex-post-facto laws. And the California legislators, many of whom are lawyers, and all of whom attended primary schools (though perhaps not before these were destroyed by the selfish and short-sighted California electorate that by referendum introduced the well-named Proposition 13, gutting state finances for decades to come) are probably mostly aware of this: but for purposes of the Société du Spectacle, it doesn’t matter, you throw the voters a bone, knowing full well that, eventually, the Supreme Court will overturn it with a sigh; but by then the flitting attention of the masses will have fluttered off to some other flower.
Anyhow, I guess I’m glad that they ruled as they did, because now I can share my war stories. So, grab some Kool-Aid ® and pull up a chair.
Take the time I captured al-Zarqawi single-handedly…
So there I was, alone and unarmed in Fallujah as midnite arrived, surrounded by platoons of Viet Cong. …
(Pour you another one, honey?)