Stolen Valor Act: A Business Decision?

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Written By admin at Sunday, March 11th, 2012

Late last month the Supreme Court heard arguments over the constitutionality of a 2006 law — the Stolen Valor Act — that makes lying about receiving military honors a federal offense. It’s an interesting First Amendment issue that does not, on its face, appear to have much to do with corporations.

But former Solicitor General Paul Clement, speaking to a group of corporate counsel Friday, said companies should pay close attention when the court issues a ruling in the case. Why?

Many regulations are premised on the idea that false speech isn’t protected by the First Amendment, said Clement, who was joined by current Solicitor General Donald Verrilli to review the Supreme Court’s term at the Georgetown University Legal Center in Washington. A strong decision knocking down the law could shake that foundation.

But a sweeping decision seems unlikely. At the Feb. 22 arguments in the case, the justices appeared to be looking for ways to uphold the Stolen Valor Act while making clear that they wouldn’t approve of criminalizing other types of lies, according to WSJ’s Jess Bravin.

Verrilli and Clement, now at Bancroft in Washington, will square off later this month in arguments over the constitutionality of President Barack Obama’s health-care law. The two declined to preview their arguments, of course, but they discussed the significance of the case and the unusual amount of time — more than five hours — the justices have allotted to consider arguments over it.

Verilli said the friend-of-the-court briefs filed in the case number in the thousands. They had to be wheeled into his office recently in two carts, he said.

The two veteran advocates were asked whether they support televising Supreme Court arguments, a contentious issue that is swirling in Congress. A majority of the justices is against cameras in the court.

Clement and Verrilli kept their distance from the issue. Wisely.

“I think it’s a decision for the justices to make,” said Clement. He said he was skeptical of arguments that televising proceedings would make a “categorical difference” because the court already releases audio and transcripts of them.

“It’s my view that it is the court’s decision. Period,” Verrilli said.

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