Answering CJ
I hate fighting with fellow milbloggers, even debating them. But, this deserves a response since I have devoted the better part of the past month working on a legal brief on the subject.
CJ asserts that the Stolen Valor Act is unconstitutional. Now, I obviously disagree, but many folks think so. However, CJ’s reasoning behind this conclusion concerns me. To wit, CJ asserts that by replacing certain words with easier to understand language, the First Amendment stands for the proposition that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or curtailing with regulation, interference or control any form of speaking, communication, sound or gesture, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
No court has ever held that to be the case, as there are exceptions. In fact, were CJ to be accurate, it would invalidate NUMEROUS laws. For instance, that would immediately invalidate all libel, slander, defamation, copyright and similar laws. If there is no curtailing of what anyone can say, for any reason, then impersonation would be legal, perjury, and others.
In fact, even the example that CJ later uses would be invalidated by that reading:
Now, where I believe that laws should apply to these fakers is when they lie to obtain things that they wouldn’t otherwise be entitled to. It’s called “fraud” and there are stiff penalties for it. Fraud is “deceit, trickery, sharp practice, or breach of confidence, perpetrated for profit or to gain some unfair or dishonest advantage.” Every state has laws against fraud and those are the laws that should apply in these “stolen valor” cases.
What is fraud if not speech? If there can be no infringement of speech, how could one have a law regarding fraud? It is not illegal to give someone money, nor has anyone ever contended it was. Fraud is giving someone money based on an untruth which they have voiced. So, if Fraud is to be illegal, it must by neccessity be on the virtue of the speech, to wit, the falsehoods.
CJ proceeds:
The name of the damn Act makes no sense anyway. From whom are they “stealing” valor anyway? They didn’t steal MY valor and I would posit that they haven’t “stolen” anyone else’s, either. All they’ve done is stolen their own honor and integrity. But, the moment they attempt to gain pleasure, profit, or personal safety from someone else then should they be charged with fraud and dealt with accordingly.
I will dispense with the first part regarding the name and answer the second with questions of my own:
1) Has anyone ever attended the Army Achievement Medal Society of America conventions?
2) Does one treat with the same respect an AAM recipient and an MOH recipient? If not, why is that?
3) If you work with 4 people and you have agreed to provide the labor for $1, and your 3 coworkers get $1,000 do you end up better after the days labor or not? What if those 4 individuals comprise everyone in the town?
CJ next argues the bar pick up line argument. We have answered that one on a few occasions. The difference between a generic untruth, and asserting you have received an award for valor is two fold:
1) Congress has it withing it’s purview (Art I Sec 8) to regulate the Armed Services, and one of the premiere interests there is in ensuring the nobel nature thereof. This would not be the case with a generic bar line.
2) Verifying military records is somewhat straightforward, and is not susceptibe to the vagaries of subjective interpretation. One has the award, or one does not.
Lastly, CJ makes the argument of disenfectant, that one can always verify, and then vilify such individuals. However, to assume such is to assume that folks have the wherewithal and the ability to verify the stories. Alvarez (the case in the 9th cicruit) was in fact elected before his lies where figured out. If all the individuals in that district were either unable or unwilling to verify his claims, then would that not argue against such a belief? And in so thinking, does CJ assert that the media is the one we should trust in to verify such claims?
Category: Politics
I am sure that a retired MD or an MD Licensed in anothe state could use that as a positive defense against being charged with PWL unless they were caught activly treating patients… but, the entire conversation is moot. It was just an example I used to show another instance where lying is illegal, and thus unprotected speech. Show me a law that prevents someone from telling the truth. Now, I am not a lawyer, but gag orders from a court, and non disclosure of classified information are the only ones I can think of off hand. But both of those are very restricted in their scope and require justification.
And Deb, as a former L&D Nurse, I am a firm believer that home delivery is for pizza, not babies. 😉
I put up a new post about victimless crimes, and would ask any of you who espouse such a theory if you find any laws I have violated.
Because I don’t feel like looking it up on Lexis I’ll just say the GA M.D. statute reads like just saying you are an M.D. isn’t a violation unless you hold yourself out as engaged in diagnosis or treatment, and you’d have to look at the case law to see how “engaged” is applied.
The parallel to Stolen Valor is the “victimless” nature (without need for self benefiting fraud) and the difference seems to lie in what one thinks claims of military service mean to the average citizen (in comparison to what a M.D. means to the average citizen). TSO will have prove in his brief that lying about being a vet is more like lying about being an engaged M.D. and less like lying about being a mechanic.
Jen, that was an excellent point…one that I was about to make myself before I read your response. 🙂
Ray, you probably feel that way because you have no experience with natural childbirth at home. It is a very big subject. Suffice it to say, the hospital is the LAST place on earth I would go to give birth to my child, unless it was life or death. You’re entitled to your opinion, of course…as long as you don’t feel that the force of government should be used to interfere with the choices of women in how and where they give birth.
Are you a guy or female? Just curious. (I assumed you were a guy until you said you were a L&D nurse, which are usually females. Not that there is anything wrong with that; I’ve never made use of a delivery room anyway. I personally would never have a guy for a midwife or doula, though. However, I’ll have to admit that my doctor in Germany was a guy. He was highly unusual, with the same approach and practice as that used by Dr. Michel Odent in Pithiviers, France.
Deb, I also don’t believe in home brain surgery. I have loads of “Natural” childbirth experience as an L&D Nurse, and I’ve also seen how fast it can go bad. If you want to be 35 minutes away from a hospital when it happens… well, good luck to you.
Yes I am a man. I was the “Lone Y Chromosome” in our department. I was hired because I was an OR Nurse and could scrub or circulate C-Sections and the hospital didn’t have enough OR qualified L&D Nurses. I also frequently heard the comment from my patients “When you told me you were going to be my Nurse, I wasn’t sure, but then it turned out to be OK.” I used to laugh and say “That’s because it was a job, not a date.”
Jen,
I pulled that statute directly from Lexis, only the added emphisis was mine. Victim or not, I very much doubt that the court will rule that lying is protected speech. I don’t see “You have the right to bullshit someone” in the 1st Ammendment, nor do I think the Framers had that in mind when they wrote it.
Yes, unexpected things can happen during childbirth. A good homebirth midwife is usually well-equipped to handle them. Prevention is a great thing, too.
Ray, reading this again, where you asserted your expertise with natural childbirth in the hospital, what I meant is that you have no experience with planned birth outside of an institutional environment. Yes, there is a difference and your background as a L&D nurse does not prepare you for homebirth outside of a medical institution. In my observation, that kind of background is usually more of an impediment with regard to homebirth, not a preparation.
Deb,
I was a fully qualified L&D Nurse. Before that,I was also a Nationally Registered EMT. I have personally delivered babies both in, and out of the hospital. I am comfortable with my level of knowlege here. The human body works pretty much the same way whether it is in the hospital or at home. The problem I have with Home Birth has nothing to do with preperation, it has to do with the abiltity to respond to emergencies in a timely manner. When the feces strikes the rotating ventilator you need an OR right there to avoid a tragedy. I have been present for 2 stillbirths by women who attempted home delivery, but were eventlually rushed to the hospital by the Midwife. Fortunatly we were able to save both mothers. I will admit, that those experiences color my perspective. But, hey… homebirth, ride your motorcycle without a helmet, don’t wear your seat belt, go base jumping, ski the black double diamond… do whatever you want.
My opinion is that homebirth is safer than hospital birth, and I wear a helmet even on a bicycle if I’m riding on a street with traffic. I personally consider the risks involved in hospital birth to be higher because the mother can’t control for factors such as medical personnel who force interventions that are unnecessary and counter-productive. The human body works the same, but the understanding of the human body is not the same. If it was, the hospitals would change the way the do business quite drastically. Most of the things that go wrong in hospitals do not go wrong in a homebirth because the situation was not set up for it to go wrong like that in the first place.
The medical doctor with the best understanding of the optimal conditions for humn birth is Dr. Michel Odent, but how many hospitals encourage or even allow for birth to take place in an upright position of the mother’s own choosing with no interference or direction by medical personnel except in rare cases? How many hospitals provide midwives and doulas who keep medical personnel at bay unless absolute necessary?
Hospitals are run for money, not for optimal health of mother and child.
Sorry Deb, but my one word answer is “Bullshit”. Patients all have the right to refuse interventions, we had special labor beds to accomidate the birthing mother’s choice of positions, and most doulas I’ve met aren’t qualified to deliver the paper. We will never agree on this,
Some hospitals are better than others; some are really terrible. Did you work at a hospital in Atlanta? If so, which one?
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