Protected: Crossophobia; Not Protected: the Medal of Honor

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Aug 19, 2010 1 Comment ›› John Eidsmoe

Protected: Crossophobia; Not Protected: the Medal of Honor

What sorts of messages do the First Amendment guarantees of freedom of expression protect?

Based upon two U.S. Court of Appeals decisions released yesterday, the courts are saying that the First Amendment (1) prohibits the Utah Highway Patrol Association from commemorating a patrolman killed in the line of duty by erecting a cross by the highway at the place where the death occurred, but (2) protects the right of a public official to falsely claim he had served 25 years in the Marines and received the Medal of Honor.

(http://www NULL.abc4 NULL.cspx)The first case is American Atheists v. Duncan (http://www NULL.ca10 NULL.uscourts NULL.pdf), in which several professed atheists claimed the placement of the cross by the highway forced them to observe the cross as they drove by, and that seeing cross offended them and therefore violated their constitutional rights. One of the plaintiffs even claimed that he had altered his travel route and had refused to stop at a certain rest area so he would not come into contact with the cross (crossophobia?).

The federal district court in Utah ruled for the defendants, holding that the cross is often used by veterans groups and others as a symbol of the death of a military man, and therefore it is not exclusively a religious symbol and its placement beside a Utah highway is not an establishment of religion.

But the Tenth Circuit U.S. Court of Appeals disagreed. The Court conceded that the State allowing the memorial crosses had a secular purpose of honoring deceased highway patrolmen, but the Court also concluded that the crosses have the primary effect of advancing the Christian religion. The Court’s decision was not affected by the fact that the cross is commonly used in veterans’ cemeteries and elsewhere to honor the dead, that several of the crosses were on private property close to the highway, or that those who proposed, designed, and approved the placement of the crosses did not do so to advance Christianity.

Also, the Court was unmoved by another unique fact: the crosses are in the State of Utah, where a substantial majority of the population is Mormon. Mormons believe Christ died on the cross for their sins, but they usually do not use the cross as a symbol, preferring instead to emphasize His resurrection. How, then, can the memorial cross be an endorsement of a religion the majority of Utah residents do not hold? The Court dodged this issue by noting through concurring opinions by various Justices that it might be possible for the state to endorse a minority religion.

The Foundation for Moral Law filed an amicus brief in this case (http://www NULL.morallaw NULL.htm). Assuming this decision is appealed, the Foundation will continue its support of the right of the Utah Highway Patrol Association to use memorial crosses to honor their dead.

Now let’s move to the most liberal of all Circuit Courts, the Ninth. Xavier Alvarez (left) was elected as a Director of the Three Valley Water District Board in California. In 2007, at a meeting with a neighboring water district board, Alvarez stated (http://www NULL.nytimes NULL.html?_r=1):

“I’m a retired marine of 25 years. I retired in 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

Except for “I’m still around,” there wasn’t a word of truth in Alvarez’s statement. He never served a day in the marines, was never wounded, and never received the Congressional Medal of Honor. He was convicted, and he appealed his conviction to the 9th Circuit, which ruled in a 2-1 decision (http://www NULL.ca9 NULL.uscourts NULL.pdf) that the Stolen Valor Act is an unconstitutional violation of the guarantee of free speech.

Admittedly, after reading the decision and the dissent, I have to conclude that the issue raised in this case is more difficult than I thought at first glance. The government has no business determining what is true and what is false, and no one should be punished criminally for expressing opinions about history or politics that are, in the eye of some government official, wrong. Nor should one be punished criminally for having mistakenly said something that turns out to be wrong. But a knowingly false claim of military service seems outside the protection of the First Amendment.

A major reason for freedom of speech is that a free exchange of ideas is most likely to help us reach the truth.  But if the purpose is to help reach the truth, it is difficult to see how knowingly false statements are protected.

The Ninth Circuit stressed that no one was injured by Alverez’s false claim. I strongly disagree. Had the statement been made on a job application or campaign brochure, it would work to the disadvantage of those candidates who had not made the claim. And as Congress stated in passing the Stolen Valor Act, “fraudulent claims surrounding the receipt of the Medal of Honor [and other medals] damage the reputation and meaning of such decorations and medals.”

I hope this decision is appealed, and if it is, the Foundation for Moral Law will likely lend its support to the appeal. And I plan to personally protest by tossing my own Medal of Honor over the White House fence. (Actually I never received a Medal of Honor, but according to the Ninth Circuit that doesn’t seem to matter.) (http://www NULL.abc4 NULL.cspx)
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  1. Protected: Crossophobia; Not Protected: the Medal of Honor « The Wall of Segregation (http://bibowen NULL.wordpress says:

    [...] Protected: Crossophobia; Not Protected: the Medal of Honor. Published [...]

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