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Court upholds right to lie
by Jake Highton
Aug 04, 2012 | 2837 views | 0 0 comments | 2 2 recommendations | email to a friend | print
The 2011-2012 term of the Supreme Court, now close to becoming “ancient history,” was mixed. It justly upheld the Obamacare health plan but reiterated its woeful stance in Citizens United that money is speech. Aside from the Citizens United ruling favorable to the One Percenters, the court is good on most First Amendment issues.

In the last term it extended constitutional protection to the right to lie. The case arose after Congress enacted the Stolen Valor Act in 2006. The act made it a crime for someone to falsely claim he was a Medal of Honor winner.

The claim by Xavier Alvarez, an ex-Marine, was an utter fabrication. But as reprehensible as the lie was, the court rightly ruled that the First Amendment barred criminalizing speech. It upheld the 9th U.S. Circuit Court of Appeals ruling that if the act were allowed to stand it would leave “wide areas of public discourse to the mercies of the truth police.”

The court also wisely held that mandatory lifetime sentences for juveniles convicted of murder -- without hope of parole -- was cruel and unusual punishment barred by the Eighth Amendment. Justice Kagan, writing for the majority, said the Constitution forbids “requiring all youth convicted of homicide to receive lifetime incarceration regardless of their age and the nature of their crimes.”

She cited the gross injustice of a lifetime sentence for a 14-year-old boy who was merely standing by while someone else killed a store clerk. “This mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it,” Kagan said.

Her opinion was a sterling answer to reactionary Justice Scalia who sneered during oral argument: “I thought that modern penology has abandoned that rehabilitation thing.” In another June ruling, the court unfortunately sustained the centerpiece of the vicious Arizona 2010 anti-immigration law, the “show-me-your-papers” provision.

The ACLU released emails showing that the law was racially motivated against Latinos.

But on a positive note, the court ruled that immigration law is the prerogative of Congress and the president. It declared that states cannot adopt laws or enforcement policies that conflict with federal law. They cannot make “foreign policy.”

As the New York Times wrote in an editorial: “This should be the final warning to Arizona and copycat states like Alabama: stop concocting criminal dragnets for civil violators.”

Nevertheless, the nation is still far short of the DREAM Act proposed by President Obama.

Namely: a halt to deportation of undocumented immigrants who came to America as children. They must be under 30 and have come when they were under 16.

Furthermore, they must have lived in this country for five years, be an honorably discharged veteran or a high school graduate and not convicted of a felony.

On another upbeat note, the Supreme Court ruled in favor of CBS, which had been fined an absurd amount — $550,000 — by the FCC for showing a nano-second of Janet Jackson’s breast during a Super Bowl broadcast in 2004.

In a companion case, the court backed two other broadcasters, Fox Television and ABC. The FCC had declared that they violated what it prudishly called indecency standards: a fleeting expletive on Fox and seven seconds of a woman’s bare rear end on ABC.

Fox in 2002 aired Cher, receiving a Billboard Music Award, saying that critics for 40 years have been calling her “washed up.” “Yeah, right,” she said. “Fuck ‘em.” The ABC broadcast was a 2003 “NYPD Blue” episode.

(Cable stations have no restrictions on so-called obscenity because their programs are not regulated by the FCC.)

The Supreme Court, however, remains mired in squeamishness. In the court’s ruling on the Fox and ABC cases, the opinion by Justice Kennedy referred to the “F-word.”

The word is commonplace everywhere except in the puritanical precincts of the Supreme Court.

The Roberts Court also showed its hostility to organized labor by upholding, in effect, right-to-work laws in 23 states. In the Knox decision it said unions cannot spend dues for political causes.

Corporations have no such restrictions.

“The Supreme Court’s ruling in Knox v. Service Employees International Union is one of the most brazen of the Roberts Court,” a Times editorial declared.

In dissent, Justice Sotomayor deplored the court’s violation of its own rules and disregard of “principles of judicial restraint that define the court’s proper role in the American system of separated powers.”

This hatred of labor is indicative of the Roberts Court’s general thrust: a Republican politics ignoring so much grim reality in American society.

Jake Highton is an emeritus journalism professor at the University of Nevada, Reno. He can be contacted at
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