Supreme Court hears United States v. Alvarez

[CG6468]

Could have gone into the Military section, too.

Supreme Court hears United States v. Alvarez

Can we get to five votes?
February 23rd, 2012 by MOTHAX

I've been pretty clear from the start that I felt this was an uphill battle for us in the Supreme Court.  *I* think that the SVA is within the scope of appropriate congressional action, and does not run afoul of the First Amendment, but have always been worried that the Supremes wouldn't see it that way.  After hearing the arguments yesterday, I remain fearful of our prospects, but less so.  Say the trek will be less Everest, and more like Mt. Washington.

It is dangerous to read too much into the questions posed by the Justices in oral arguments.  It's like reading tea leaves…you might get it right, but chances are it was accidental.  That said, I am about to do just that anyway, in the hopes that perhaps some of you keen legal minds out there might read these passages differently, or may have noted other things I missed.

I will say this at the outset, although I thought it went very well, the guy I consider to be the sharpest JAG I ever knew sent me an email this morning that read:

Predictions based on the justices' questions are not an easy matter, but I don't think SVA is going to prevail. Kennedy seems to think that it is too broad.

Meanwhile, the Washington Post had an article today that said:

It seemed from the general tenor of the arguments that the justices were looking for ways to agree with [Solicitor General] Verrilli that the exception to the First Amendment’s speech protections was narrow.

He seemed to have one sure supporter in Justice Antonin Scalia, whose comments were uniformly protective of the government’s interests.

“When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished” by those who falsely claimed them, Scalia said.

And Verrilli had one clear skeptic in Sotomayor.  “I thought the core of the First Amendment was to protect even against offensive speech,” she said. “You can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming that they got one.

Just picking up Scalia is a good thing from my point of view, since we need 5, and I had labelled him as a likely opponent.  As is his custom, Thomas remained silent, but I suspect he is with us.  In order to get to 5, we need Scalia, Thomas, Alito, and then two out of Kennedy, Breyer and Chief Justice Roberts.  Like I said, beforehand I gameplayed us needing all 3, now we just need 2/3.

Anyway, here are some passages I found interesting.  (Click here to read full transcript.)

JUSTICE SCALIA: I believe that there is no First Amendment value in -- in falsehood.

This was a good sign right off the bat.  Like I said above, I was concerned about Scalia.

Liars and cowards. That's what the claimers are.


Stolen Valor

[Eupher]

Interesting developments and analysis. Bears watching. I didn't realize the case was being heard this soon.

[CG6468]

Interesting developments and analysis. Bears watching. I didn't realize the case was being heard this soon.

I didn't either. I got this in an email update from the American Legion.

[thundley4]

Don't hit me, but I think that it is totally different for some clown to bragging in a a bar trying to get laid by claiming he earned metals and some AHole running for president and claiming that he earned Purple Hearts in Vietnam .

[CG6468]

Don't hit me, but I think that it is totally different for some clown to bragging in a a bar trying to get laid by claiming he earned metals and some AHole running for president and claiming that he earned Purple Hearts in Vietnam .

It could also be some wannabe trying to get GI benefits through a VFW or American Legion post, or through the VA itself.

[RightCoast]

Going through the effort to fake a uniform and medals that you didn't earn, then publicly telling the story of things you didn't do is fraud, not free speech.

[DumbAss Tanker]

The 9th Circus is insane, the SVA is simply prohibits a type of offense known as 'False personation,' which is forbidden in many other particular contexts involving misuse of Federal credentials or even claiming them; being as there are certain rights that go with veteran status, there is just as much sound legal basis to support SVA as there is for laws prohibiting one from falsely representing himself or herself as a law enforcement officer, government official, doctor, or lawyer...and in the case of SVA, since the status falsely claimed is based on Federal service, a Federal law is the appropriate vehicle to prohibit the misconduct.