posted by Mary-Rose Papandrea
Although most people are focusing on Chief Justice Roberts’ vote to uphold the healthcare law, it turns out the Chief also voted with the “liberals” today to strike down the Stolen Valor Act as violating the First Amendment. This is an important First Amendment opinion with lots of points for discussion.
The Stolen Valor Act makes it a misdemeanor to falsely represent oneself as a recipient of military honors. The final vote from the Court was 6-3, but the six votes were spread between Justice Kennedy’s plurality opinion (joined by the Chief and Justices Ginsburg and Sotomayor) and Justice Breyer’s concurring opinion joined somewhat surprisingly by Justice Kagan (more on that in a minute). The dissent was written by Justice Alito, joined by Justices Scalia and Thomas.
I will just note a few things that captured my attention after a first read:
Reliance on the marketplace of ideas: Although Justice Kennedy spends a lot of time in his plurality opinion discussing how the current statute does not require prosecutors to demonstrate any material harm resulting from the false speech, he also notably places a lot of confidence in the marketplace of ideas to discredit false statements. In particular, he relies heavily on the ability of counterspeech to flush out the truth. In this case, Kennedy writes, the Government could easily post online a database listing those who have received military honors. Justice Breyer’s concurring opinion also discussed the importance of the marketplace of ideas and encouraged the Government to embrace “information-disseminating devices” to correct the truth.
June 28, 2012 at 3:51 pm Tags: Alvarez, Constitutional Law, false speech, First Amendment, free speech, marketplace of ideas, military, Stolen Valor Posted in: Uncategorized Print This Post 2 Comments
posted by Tayyab Mahmud
Canonical texts of comparative constitutional law seldom take into account the phenomenon of nullification of election results by extra-constitutional means in praetorian polities. The political drama unfolding today in Egypt is a case in point.
After having dissolved the first-ever freely elected parliament in the country, Egypt’s Supreme Military Council is now withholding the results of the first-ever free presidential election. On June 20th, a commentator in Cairo termed the present situation “the most dangerous 48 hours.” If the history of nullification of election results by the military is any guide, dangerous times in Egypt may extend far beyond 48 hours.
Pakistan (1971) and Algeria (1991) present ominous parallels to the current constitutional crisis in Egypt. In both cases the military refused to honor the results of free democratic elections, and in both cases the result was a bloody civil war with lasting consequences for the polity.
In the case of Pakistan, the first-ever free elections for a parliament and constituent assembly were held in December 1970, after twelve years of direct military rule. Awami League, a political party representing East Bengal, won an overwhelming majority of the seat in the new parliament. Instead of transferring power to the Awami League, the military dissolved the parliament and unleashed a military action in East Bengal. A civil war ensued that quickly graduated into a war between India and Pakistan. By December 1971, over one million Bengalis had been killed in what was widely recognized as genocide, Pakistan stood dismembered, and Bangladesh emerged as an independence state.
In the case of Algeria, the first free elections for a new parliament were held in December 1991. The Islamic Salvation Front (FIS), an Islamist political party gained a clear majority in the first round of voting. In a quick response, the military took over direct control of the government, cancelled the elections, banned FIS and arrested thousands of its members. A bloody civil war was the result, one that lasted for nearly twenty years and claimed over 200,000 lives.
Note that military juntas often cite political stability, social order, national integrity and similar high-sounding ideals as rationales for their refusal to recognize results of democratic elections. The real reason is to protect their power and privilege. Increasingly, their privilege includes a direct and lucrative role in the economic sphere. For example, the military in Egypt, Indonesia and Pakistan is directly engaged in industrial production, mining, banking, insurance, transportation, mining, real estate, and, would you believe, wedding halls. It may well be that more than anything else the Egyptian military is trying to protect its share of the economic pie.
A very productive study of the lucrative economic role of a military establishment is Ayesha Siddiqa, Military Inc.: Inside Pakistan’s Military Economy (London: Pluto Press, 2007).