Vince Carroll assures us in today’s Denver Post that the federal law prohibiting lying about having received military honors never received is a violation of the First Amendment, and for good reason ( He admits that certain kinds of predatory or destructive forms of speech are not protected by the First Amendment, and that the purpose of First Amendment protections broadly applied, to avoid the chilling of legitimate free speech and preserve the legitimacy of that which is said, is not implicated by this law. But he is concerned about the slippery slope, that ever-ready rationalization for irrationality that insists we draw lines in admittedly sub-optimal places in order to avoid drawing them in opposite sub-optimal places. Carroll is concerned that if we criminalize lying about receiving military honors, then we may end up criminalizing lying about one’s height or weight. And Carroll insists that the concern that permitting such lying devalues the authentic military honors of ours is not supported by any evidence.

To take Carroll’s last point first, the evidence is indirect but overwhelming, embedded in one of the cornerstones of economic thought, the law of supply and demand itself. If the monetary supply, for instance, is artificially increased without any corresponding increase in actual wealth, it creates an inflationary pressure, a devaluation of money. Worse, if some of that money is known to be counterfeit, it not only devalues money, but undermines confidence in it, leading to greater skepticism regarding the authenticity of any particular monetary note. We’ve seen both of these phenomena well-documented with considerable frequency throughout the course of human history. To apply that knowledge to a new variant isn’t to make an assumption in the absence of evidence, but rather to apply evidence to situations other than those from which the evidence was derived, which is precisely the purpose and function of evidence.

Carroll justifies his assumption that reputational capital defies the laws of supply and demand with the assumption that the stock of admiration is infinite. First, I doubt that it is infinite; it is far more probably that people, psychologically, have limited capacities to bestow admiration on others. (Imagine a person who finds everyone around them presenting legitimate claims to be worth of extraordinary admiration. It is hard not to imagine that they would quickly suffer from “admiration fatigue”). Second, even if the stock of admiration were infinite, the devaluation resulting from reduced confidence in its authenticity in any given instance is not depended on its stock being limited.

Perhaps more importantly, Carroll doesn’t understand how and why the line is drawn between protected and unprotected speech. Any speech that can be proven to be intentionally deceptive either for self-enrichment at others’ expense, or for predatory or malicious purposes, and that does not fall within a range of speech that, despite these characteristics, must be protected anyway to avoid chilling or discrediting legitimate free speech, falls within the range of speech that can be prohibited, if we the sovereign, through the agency of our representatives, determine that we consider the harm done significant enough to warrant such a prohibition. Some may consider claiming to have received military honors never received is not significant enough to warrant such a prohibition, but that is not the issue here; if it were, it would be an issue to be debated and resolved in our nation’s legislature, as it was. The issue is whether it is so qualitatively different from other prohibited forms of speech, such as fraud, that we cannot even arrive at the discussion of whether it is significant enough to prohibit.

But it clearly is not qualitatively different from fraud. Claiming military honors never received, in order to derive some benefit from the false belief that they were received, at the expense of both those who believe the lie and those who have actually received military honors whose honors are devalued and placed in doubt as a result of the lie, is qualitatively indistinguishable from fraud. The only thing that distinguishes it is that the capital fraudulently acquired is reputational rather than monetary. But, in the real world, reputational capital can be just as valuable as money. It is just as valuable to those who acquire it, and just as valuable to those who deserve it but receive less of it, with less confidence, as a result of the intentional deceptions of some. The cost of being deceived into wrongly bestowing such reputational benefit, to the person bestowing it, may even be comparable, in some ways, to the cost of being defrauded out of something of material value. Therefore, it is fair game for a legislature to debate whether the harm is significant enough to warrant legal attention.

Carroll is concerned that making such determinations risks the slippery slope of  eventually determining that more trivial forms of fraud are significant enough to prohibit. According to Carroll’s “logic”, we can’t be allowed to draw the line, lest we draw it in the wrong place. But clearly, as is so often the case, this is just a veiled argument for drawing the line in one place rather than another. In this case, Carroll accepts current anti-fraud laws which draw the line at things of monetary value. But his distinction is irrelevant; in fact, his preferred limitation suffers from exactly the same defect as his rejected extension of the concept. For, if fraud only applies to deceptively acquiring things of monetary value, then what is to stop us from criminalizing the deceptive acquisition of something worth only a few pennies? What stops us is that we consider it too trivial, just as what stops us from outlawing lying about one’s age is that we consider that too trivial as well.

We have less to fear from the slippery slope we already adequately negotiate than from the arbitrary distinctions that Carroll insists we should never transcend.

  • The following is a reply I made to a comment on my Facebook page link to this post:

    I think vigilance over political false speech needs to be accomplished through civic organizations committed to that purpose. For instance, Media Matters (the Colorado branch of which our own Bill Menezes ran), dedicates itself to this task. Certainly, we need more of it.

    My essay (above) is more about private false speech; in particular, the false claim to have received military honors now prohibited by the “Stolen Valor Act”. In both cases, the challenge is to thread the needle between protecting free speech and prohibiting dishonest or predatory speech which inflicts some significant private or public harm. It is not a trivial challenge, and I think it needs to be addressed by a combination of public and private initiatives; both appropriate, and appropriately restrained, government action, and robust civic action.

    Few things are more frustrating to me than to find myself in a conversation with someone (as I too often do) who is absolutely convinced of things that are absolute falsehoods. Helping to diminish the extent to which falsehoods spread like viruses through the collective consciousness, and increase the extent to which accurate information does so instead, is one of the most fundamental challenges we face.

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