First Amendment Idiots (I can say that, can’t I?)

Lawyers in Colorado and California are challenging the Stolen Valor Act on First Amendment grounds.  Arguing that wearing a uniform and medals a person did not earn is a form of speech, these lawyers are attempting to gain acquittal for their despicable clients.

For those of you who don’t know, the Stolen Valor Act of 2005 was proposed by Senator Ken Salazar of Colorado and signed into law by President George W. Bush in 2006.  The Act provides for Federal criminal charges for those who wear US Military uniforms or medals not earned, claim service in the US Military that wasn’t served, or claim to have earned specific qualifications (such as Navy Seal, Army Special Forces) that were not earned.

Lawyers for Rick Strandloff and for other defendants are making the moronic claim that as long as there is no financial gain, this is protected speech under the First Amendment to our Constitution.  This ridiculous notion that everything is “speech” and therefore protected under the First Amendment has been the result of some of the more creatively wrong (and politically motivated) Supreme and lower Court decisions.  Don’t get me wrong, I understand the obligation of an attorney to make every effort on behalf of their client to obtain the best result for that client.  The Colorado Rules of Professional Conduct; rule 1.3 Diligence, states:

[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. (emphasis mine)

It seems that conducting a defense based on an intentional misinterpretation of the Constitution isn’t terribly ethical.  It also seems that challenging this law on such grounds doesn’t seem to treat those Veterans with respect.  All this without even discussing the blatant stupidity of it.

Using the strained logic that leads to a defense of this sort one could argue that it would be OK for a person to drive around in a car painted to look like a local police car, complete with lights, sirens, and spotlights, dress in a police uniform, wear a badge, and make any other effort to appear like a Police Officer.  As long as the person does not commit any other crime, one could say it was merely “speech”.

The Framers and ratifiers of our Constitution were not attempting to protect any and all things a person might do, say, or write as speech.  The intent was to protect political speech.  The purpose of the First Amendment was to ensure that criticism of the government was protected.  The intent was not to protect art, pornography, or other forms of non-political speech.  Flag burning is more reasonably protected under the First Amendment than any of these other things, including violations of the Stolen Valor Act.

Although it is probably acceptable to call the written word “speech”, dressing in a uniform you did not earn should not be construed as such.  Strandloff in particular made his claims for pecuniary gain.  To construe his actions as speech under the Constitution weakens the standing of political speech, and certainly does not protect the people from predatory behavior.

It’s time for Judges to take a bit of time and read not only the Constitution, but also the ratification debates when deciding an issue on Constitutional grounds.  Where the ratification debates do not specifically speak to the issue, Judges could reasonably consult the words of the Framers, keeping in mind that only a totality of the words of all the framers can reasonably express intent.  Cherry picking is not an acceptable method of determining this intent.  Where neither speak to the issue, stick to the text and the intent and purpose of the Legislative branch at the pertinent level of government.

Satire V

This entry was posted on 9. February 2010 at 11:01 and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response or trackback from your own site.

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