10th Circuit Upholds and Narrowly Interprets Stolen Valor Act

The United States Court of Appeals for the 10th Circuit, based in Denver, has upheld the constitutionality of the Stolen Valor Act, which makes it a misdemeanor to make false statements made about the military honors one has obtained.

It did so by first clarifying that the statute is being interpreted narrowly, in an effort to preserve its constitutionality. As construed, it applies only to statements made knowing that the statement is false with an intent to deceive, and only to statements that are actually meant to be actual statements of factual matter as opposed to statements not calculated to be taken literally such as "satirical, rhetorical, theatrical, literary, ironic, or hyperbolic statements." Thus, as interpreted by the 10th Circuit, "only outright lies—not ideas, opinions, artistic statements, or unwitting misstatements of fact—are punishable under the Act." But the Stolen Valor Act removes the requirement found in fraud or defamation statutes that have been previously upheld as constitutional in the face of First Amendment challenges that "the lie induced reliance or caused discrete harm."

The 10th Circuit reasoned that there is no general constitutional protection for knowingly made false statements of fact under the First Amendment, even though there are some instances where such statements are insulated from liability because they would have the effect of chilling some other form of protected speech. But, given their construction of the statute, the 10th Circuit concluded that this particular subset of knowingly false statements of fact made with an intent to deceive about their factual truth related to the military decorations that one has received does not chill legitimate protected speech and by its narrow content scope implicitly excluudes all sorts of false statements that would involve only immaterial statements of fact.

The 10th Circuit notes, quoting the brief of a law professor who blogs at a site in the sidebar:

Since New York Times, Garrison, and Gertz, courts have
extended the “false statements of fact” exception to cover many categories of false-speech statutes, including laws punishing fraud, false-light invasion of privacy, intentional infliction of emotional distress through false statements, trade libel, perjury, unsworn false statements of fact made to governmental officials, impersonation of a governmental official, false claims regarding university degrees and professional licenses, falsehoods in connection with political campaigns, falsehoods likely to provoke public panic, and falsehoods that are likely to lead to physical harm. See Brief for Eugene Volokh & James Weinstein Amici Curiae Supporting Petitioner at 3–11, United States v. Alvarez, No. 11-210 (U.S. Dec. 7, 2011); Brief for Eugene Volokh Amicus Curiae Supporting Plaintiff at 1, United States v. Strandlof, No. 09-cr-00497 (D. Colo. Jan. 15, 2010).

An even better set of constitutional laws to which the Stolen Valor Act is analogous, are those criminalizing certain kinds of trademark and servicemark violations. Military honors and decorations are essentially trademarks that designate the quality of a soldier just as a servicemark can be used to distinguish the quality of a particular individual's personal services, that belongs to the United States government. And, there is no good reason why it should be possible to sanction someone criminally for falsely using a private servicemark without an individualized showing of reliance or harm, but it should not be possible to do the same thing when the servicemark is granted by the U.S. government (the laws criminalizing claims that one has degrees that one does not have are also quite analogous in this regard when a state university is involved). The argument that the United States government has something in the nature of an intellectual property right in decorations and honors that it issues is a natural and reasonable one.

Coming close to this analysis, the 10th Circuit notes the line of cases establishing that "Congress has made it a crime to falsely purport to speak on behalf of the government" and that Congress has taken "steps to protect the intellectual property associated with medal designs[.]"

The 10th Circuit three judge panel ruling was made with one judge dissenting. The dissenting judge argued that an injury must exist to criminalize false statements of fact and unlike the majority (which also did not believe that injury was a constitutional requirement, citing many counterexamples) did not feel that this could be established on a generalized basis for this class of statements as the majority.

In my view, the 10th Circuit in this case has it exactly right on the merits, making a subtle, but easy to apply in practice rule that is not prone to slippery slope constructions that would erode free speech rights. Indeed, I wouldn't be at all surprised to see the U.S. Supreme Court affirm the 10th Circuit in this very case and use this case to overrule contrary federal court authority.

The 10th Circuit ruling creates a circuit split between it and the 9th Circuit, with several other cases going both ways in the appellate pipeline in other circuits. The final word will almost surely come from the U.S. Supreme Court sooner or later. And, the very clean facts of the underlying offense and careful reasoning of the 10th Circuit in its opinion in this particular case make it an attractive one for a U.S. Supreme Court interested in affirming that 10th Circuit position that the Stolen Valor Act is constitutional and quite possibly doing so in a unanimous ruling.

Defense Budget Cuts Philosophy Announced

Defense Tech provides some key source documents outlining planned defense budget cuts.

In a nutshell, the Obama Administration gets it backward, cutting almost 100,000 ground troops when the last decade has clearly illustrated that we have far too few to mount even modest scale, low intensity ground operations, while preserving or enhancing resources for "high end" conflicts by preserving a large blue sea navy, funding the Air Force as much as possible including adding a new long range bomber, encouraging a renewed focus on combat with tanks, and restoring resources for training for large scale amphibious operations.

This is the opposite of what our nation needs from multiple perspectives, and it misapprehends our realistic military options in dealing with the only two high end military powers left (Russia and China), misapprehends the kinds of engagements we are likely to have with midrange powers which also happen to be a higher risk because they are less predictable (North Korea, Iran, Pakistan, Saudi Arabia), and abandons critical military resources for dealing with low capability conflicts with poor third world countries, pirates and insurgents that been the dominant military issue for the U.S. and most of its allies for the last forty or fifty years.

This approach squanders irreplacable combat veteran experience, while failing to recognize that advances in technology have decreased the utility of existing classes of surface ships and made military aircraft capable of doing far more with far fewer planes. The plan is also backwards in terms of the extent to which it provides the kinds of boosts to our economy that our military spending has the capacity to provide, and fails to recognize that in areas like the naval we need major adjustments to the mix of forces rather than mere attention to total force sizes. It leaves us with a very expensive military that is ill equipped to handle basic military missions in an efficient way with a force tailored to have ways to handle these basic military missions which are most likely to come up. This plan does more to advance the interests of our country's big defense contractors than it does to advance our actual military needs.

President Obama praised the military in his state of the union address for its good work. He should be holding the parts of the military that did that good work harmless, while cutting the parts that were less relevant to the military accomplishments that he was praising, instead of the other way around.

Selected K-12 Education Ideas

A few K-12 education reforms that seem like they would work:

1. Start foreign language instruction much earlier. The norm should be 3rd grade, not 9th grade. Younger students inherently have more of a capacity to learn foreign languages.

2. Include a period of immersion of at least a month in a student's foreign language at least three times from third grade through high school graduation. Immersion is profoundly more effective than a single less than an hour class in a classroom in an otherwise English language context.

3. Strong preference should be given to native speakers and people who gained fluency by prolonged immersion at a relatively young age in teaching foreign languages. Formal teaching credentials are much less relevant in this field.

4. Be ruthless in always assigning children to math and foreign language classes by proven ability level even if this is inconvenient to administer. These are classes were a student taught something he or she has already learned is wasting precious time when he or she is most able to learn it, and students in over their head are going to see substantially reduced benefit. Probably a third or more of students in any given grade should be taking a math class at something other than their grade level.

5. Most large school districts, due to a need to make efficient use of transportation resources, run on two shifts, an earlier one for middle school and high school students and a later one for elementary school students. This should be reversed. Elementary school students tend to be more often at their peak in the morning. Tween and teens tend to naturally shift towards becoming night owls.

6. The standard 180 school days in a year is too short, and the average school day is too short. Another twenty week days per year and another hour a day would be a good start. Schools that consistently see higher than average student academic growth have students spend more hours per year in school, the long ago agricultural considerations for summer harvest time no longer apply, and if this means buying air conditioners for summer school sessions, so be it. It might make sense to used additional school days during the summer for programs that benefit from large blocks of time for instruction like foreign language immersion (in part, so students with parents who aren't married to each other in separate cities can do their block time in one parent's city, and the rest of their year in another). Some of the extra time can from by including extracurricular activities as a mandatory, but ungraded, element of every kid's day. Longer days and more school days also better respects the reality that a large share of students come from families where both parents have full or nearly full time jobs.

7. The concept of "physical education" should go. School children should get physical activity in the day, but the point should be the current benefit that flows from being physically active, not the knowledge that students learn from the activity. Also, almost all "physical education" classes are taught year after year as survey courses. There may be a place for a "survey course" format for small elementary schools where kids haven't been exposed to different possibilities and the school can't feasably offer multiple choices with its staff limitations, but this doesn't make sense in middle school and high school. Again, this is unnecessary and counterproduct when it comes to the real goal of providing physical activity. Few parts the school curriculum are better suited to offering students choices - let them take a yoga or dance class, or join an intramural or intermural sports team, or join a running group, none of which should figure into a student's GPA, instead of plain old "physical education." To the extent that there is an "education" component, it should focus on establishing specific life skills like learning to swim, learning to ski, and learning to ride a bike.

8. Preschool and full day kindergarten should be publicly funds and staffed with teachers paid what experienced high school teachers are paid. Studies have established that this part of educatioon has more impact than any other and that these teachers are currently the least bright. Also, full time schooling has been demonstrated to be highly effective at increasing family income and reducing child abuse and neglect.

9. More frequently advance academically high performing kids to a higher grade level and more frequently hold academically low performing kids back a grade level. Curriculums are designed to provide maximum benefit to kids who are a little about grade level. The closer kids are to that target in the majority of their classes in school, the better they'll learn. If enough kids finish twelve years of K-12 level work a year or two early, add a special college level program for them.

10. Decrease emphasis in teacher hiring on classroom education classes in training teachers, and increase emphasis on recruiting the teachers with personalities that are good fit for teaching and who are as smart as possible. The evidence that additional instruction improves teaching quality is quite weak.

11. Provide quick and honorable outs for teachers who learn in the first few years that teaching is not for them, and for teachers who start to burn out. Teachers who aren't thriving often want to get out and make room for better qualified teachers, but find it hard to find an acceptable way of negotiating that switch. Pension systems structured to create strong economic incentives to stay in the system for a certain number of years, no more and no less, discouarge that. There is also undue emphasis in teacher compensation on degrees earned and continuing education classes taken.

12. Students should receive more instruction at a fairly high level of rigor on negotiating the health care system and mental health care system from a patient's perspective (and self-care when possible), on basic accounting concepts and tax law compliance, and on interacting with the legal system (e.g. as a criminal defendant, if sued, if injured, as a tenant) as part of the high school curriculum. Almost everyone has to deal with these things in life, and these things are more demanding of academically teachable knowledge than almost anything else a typical person does in life. These are at least as important as sex education, don't use drugs propaganda, driver's education and civics that are all part of the curriculum.

13. Adjust the A, B, C, D and F grading system, perhaps by adding a new grade "E" above "A" and discarding the "D". The level of work that qualifies for a "D" is so bad that it is as if a student had never taken the class or worse, that kind of performance is unacceptable and shouldn't be given credit at all. But, the current GPA system also errs by focusing too much on across the board competence at a solid but unexceptional level (i.e. on not making mistakes), rather than accepting that truly excellent above and beyond performance in one area should at least balance out mere average performance in some other area. The "A" grade should have a similar lower cutoff to what it does not, while an "E" grade should entail "A" grade quality work in normal assignments plus work well beyond the scope of the curriculum for the grade level being taught and major "extra credit" projects such as a quality science fair or history day project, "an honors thesis," or extra beyond grade level curriculum level work. The fact that someone can't do better than "B" grade work in social studies, shouldn't count against someone who is doing "E" grade work in creative writing.

14. Developed a systemic way of screening, tracking and addressing learning difficulties, mental health issues, and disciplinary problems. These issues frequently are apparent by late elementary school. Almost everybody who has serious disciplinary problems or learning difficulties that are a big problem in high school and lead people to drop out have had clear yellow and red flags apparent to anyone who is paying attention by the time that they were in fifth grade. The system needs a way to proactively address these issues, rather than seeing incidents as isolated, seeing individualized learning plans as a pro forma paperwork chore (the emphasis should be on having a plan for a particular kind of problem, not on the individualized nature of that plan), and to devote intensive resources that may need to go beyond the school itself to address them starting as soon as the issues are identified. The longer these situations go unaddressed, the worse they will become. Letting things slide while given a student an opportunity to try to turn things around by himself or herself possibly with family help until they can't be ignored is not the right approach. Issues not to be addressed immediately when they start to appear because the older the student gets and the longer the problem persists without being addressed in a non-punitive constructive way that will help the student in the long run, the more likely it is to become harder to address.

15. Recognize that some degree of very personal intervention in habits and behavior, rather than just knowledge transfer, may be necessary to facilitate student learning growth and devise ways to do this that do so without inappropriately imposing religious or ethnic biases. This isn't an easy task, but seems to be a common thread in those schools that consistently show exceptional student growth.

16. Increase the weight given to growth measures in evaluating teachers and schools and decrease the weight given to absolute performance measures.

17. For choice options to work best, information about school performance needs to be conveyed to choosing parents on specific programs that students will be involved in, not obscured in a blend of different programs that happen to be co-located.

18. High schools should be evaluated based on post-graduate employment results as well as graduation rates, college matriculation rates, college graduates produced, and remedial instruction for students who go to college. The system should invest enough to allow high schools to have career searching assistance and college advising assistance that help them to maximize their performance on these measures, should track these outcomes, and should publicize the results.

19. At some point in middle school or high school, students who are unlikely to graduate from college should be identified and provided with multiple curricular choices that permit them to decide what they and their parents think will provide the maximum benefit to the student from the student's remaining years of taxpayer funded education. The current watered down college preparatory curriculum for these students undermines interest in school because it seems irrelevant and wastes the time of teachers and students alike.

20. Increase the mandatory school attendance age to eighteen for kids who have not graduated from high school. This policy increases graduate rates, reduces juvenile crime, and surprisingly, also doesn't reduce outcomes for kids who wouldn't have dropped out anyway.

UK Economy Is Worse Off Than During Great Depression

In the United States, there is no doubt that the "Great Recession" we experienced in the wake of the financial crisis, while serious, was not as deep as the Great Depression of the 1930s.

In the United Kingdom, this is not the case. Their Great Recession is by some GDP measures worse than the one that they experienced during the Great Depression in the 1930s.

Fourth Circuit Creates More Horrific Law In Jose Padilla Civil Rights Case

Jose Padilla is an American citizen with a long criminal record who converted to Islam in prison who was plucked from a civilian jail by President George W. Bush as basically a test case for his new legal theory, and held there for years on that theory that he was an enemy combatant not entitled to due process. Padilla was then transferred to a non-military criminal court after the 4th Circuit had upheld the legality of the detention and before the U.S. Supreme Court's pending review of the case could take place, causing the U.S. Supreme Court to find the case to be moot while upholding the 4th Circuit precedent. Despite various arguments made by his lawyers in the criminal case at trial and on appeal, and some right out of a John Grisham novel instances of weird behavior by the jury, Padilla was convicted of trying to join a murderous terrorist group (separate from the dubious dirty bomb allegations made to support his enemy combatant detention) in which it was not alleged that he personally was involved in any terrorist acts. On appeal, prosecutors won a determination that the seventeen year sentence that he received was too short.

Padilla brought a civil rights suit thereafter, alleging that he was unlawfully tortured while detained as an enemy combatant, while he, a U.S. citizen, was detained in a facility in the territorial United States in a place not under martial law. The trial court dismissed the suit and its ruling was affirmed by the United States Court of Appeals for the Fourth Circuit, which reasoned that even if all allegations of the civil rights claim were true and that Padilla was tortured in violation of his constitutional rights while being held as an enemy combatant, that the President and all persons who carry out executive branch orders when acting under color of a Congressional authorization to use military force are absolutely immune from civil liability or court orders providing for injunctive relief for any violation past, continuing, or in the imminent future, of a person's constitutional rights no matter how egregious, even if the constitutional right established is a clear violation of a well established constitutional right, and even if the litigation of the case does not in any way implicate a state secrets privilege.

The two precedents together basically stand for the proposition that the President may ignore the constitution to imprison and torture any U.S. citizen anywhere in the world, when acting under color of a Congressional grant of permission to use military force, subject only to the ever present possibility that his actions will get him impeached and removed from office.

It is also appropriate to recall that while President George W. Bush initiated this policy, that it is President Obama's administration that is now continuing to defend and assert the legally validity this exaggerated claim of Presidential authority, despite assertions on the campaign trail in 2008 that seemed to suggest that President Obama would reverse this policy.

It is fair to say that this is not the vision that the Founders embraced when the drafted the United States Constitution, and is also horrifically bad as a matter of policy.