I’m always fascinated by issues of free speech and what should be within the reach of government authority, especially as a writer, but also as one who leans toward civil libertarianism. So when the recent matter emerged involving people claiming not only to have served in the military, but to have received decoration for their service, it stirred some good discussion in the Piatt household.
The question, which is making its way quickly to the Supreme Court, is whether lying in this case constitutes a criminal offense. Generally, the power of the government to prosecute is limited to acts and not to speech, as the latter is protected by the First Amendment. However, the argument is that, in making such a claim, the person is committing the criminal act of fraud, namely impersonating someone they are not.
Generally, however, fraud only applies when a person takes on another person’s specific identity, and in this case, the person isn’t saying they’re someone else; rather, they’re saying they did something that they didn’t do.
So the question is – what, if anything, should the federal government be allowed to do about it?
I totally get the instinct to say yes, we all know this is wrong, and therefore the violator should be punished. Fine, but does that make it the government’s job to pursue criminal prosecution? And then how do we decide which lies should be prosecuted? Some say when we can demonstrate harm done to another individual or body because of the lie. My wife, Amy, made the argument that this is the case when someone lies on their tax returns. But this can be linked directly to an act – theft – which is really the punishable crime.
So in the case that harm can be demonstrated, it the act of harm that is prosecuted, rather than the lie itself. The only clear case of lying being punishable by law is perjury, in which case the risk of potential harm is fairly self-evident.
But what about when the government itself asks us to lie, or at least not to fully disclose the truth? Consider the “Don’t Ask, Don’t Tell” policy, which the military had in place for many years. What if a soldier argued that not knowing the person serving next to them was actually gay caused them irreparable psychological or emotional harm? Not that I think such a case holds any water, but I’m using this to make a point; once you allow the government to have legal authority over personal speech, it’s a difficult box to close back up once it’s opened.
It seems to make sense to me to leave this as a civil matter, leaving the government out of it, except in cases where demonstrable harm can be shown toward them. For example, simply telling people you’re a decorated war veteran when you’re not doesn’t seem to me to be a punishable crime. Claiming you are John Doe, who was an actual decorated soldier, when you’re not him, is a clear-cut criminal offense.
Let’s say you claim such citations in a job interview or on a job application. If you sign an agreement that says you maintain everything in your application is truthful, there would be grounds for termination if you lied. And if another individual could prove that your lie got you the job over them, they’d have reasonable grounds to sue you. But neither of these is a criminal case; both are handled as civil matters.
If you lie on a government job application, similar rules could apply. You could even be prohibited form re-applying for a government job for a given amount of time. But again, this is a civil issue rather than a criminal one.
It is the purview of the criminal justice system to help ensure the safety of its citizens. But sometimes we get that confused with the task of holding us as citizens to a particular moral standard. Generally, those moral issues have direct matters of safety at stake. But in matters purely dealing with speech, we should be especially careful before acceding power to a government body over the words we choose and the beliefs we confess.