Yesterday, I had my first public hearing of the session, fittingly on a First Amendment issue. And, because the bill creates a new crime, I found myself in front of the Criminal Justice committee - which may turn out to be my home away from home for the next few months. The bill, LD 43, was modeled after the federal Stolen Valor Act of 2013 and would create a new class E crime for false claims of military service.
An earlier version of the federal law was struck down by the Supreme Court in 2012 in the case of United States v. Alvarez, 132 S.Ct. 2537 (2012). Alvarez involved the constitutionality of the Stolen Valor Act of 2005, which made it a crime to lie about having received a military honor. The defendant in the case had claimed at a public meeting to have won the Congressional Medal of Honor (he had also claimed to have played hockey for the Detroit Red Wings, to have worked as a police officer, to have been secretly married to a Mexican movie star, and to have rescued the Iranian Ambassador during the 1979 hostage crisis). None of these things were true, and Alvarez was prosecuted for violating the Stolen Valor Act.
More than 60 years ago, Justice Jackson explained why the authority, and the obligation, to determine the truth of a statement rests with the public and not the government: “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring). For nearly a century, efforts to punish speakers for the supposed falsehood of their speech have been beaten back by courts in every jurisdiction, including the U.S. Supreme Court and the Maine Supreme Judicial Court.
It is unfortunate when business leaders, politicians, and anyone else attempts to deliberately mislead the public, but it is a much greater threat to our democracy to have the government presume to decide for the public what is truth and what is falsehood. Responsibility for seeking out the truth belongs with the people, with journalists, with scholars, and with scientists.
We also cautioned the committee against criminalizing new behavior to solve society’s problems. LD 43 would create a new class E crime, which carries a penalty of up to six months behind bars. Deprivation of an individual’s physical freedom is one of the most severe interferences with liberty the state can impose, and as such should only be used as a last resort. Criminal penalties are harsh, frequently counter-productive, and costly.