12 October 2012

Honour and Speech

I recently noted publicity regarding alleged appropriation of awards by John Hines and his brother, allegations that if confirmed involve behaviour that is both reprehensible and illegal but perhaps reflects a delusive state on the part of the offenders.

''What is that Honor?': Re-Thinking Free Speech in the 'Stolen Valor' Case' (Indiana University Robert H. McKinney School of Law Research Paper No. 2012-20) by R. George Wright
addresses the recent emotionally-charged Supreme Court case of United States v. Alvarez. In Alvarez, the Court struck down on free speech grounds the Stolen Valor Act, which, in effect, prohibited lying claims to have been personally awarded particular military medals. The Article first presents four distinctive reasons why, if possible, the Court should have avoided deciding this case on free speech grounds. The Article then argues that if the Court was nevertheless somehow bound to reach the free speech merits, the same four reasons presented above should have persuaded the Court to have upheld the statute. Among the relevant considerations are an appropriate degree of judicial modesty under the particular circumstances, and the only minimal degree to which the logic and value of free speech were realistically implicated in the case. 
Wright concludes -
Judicial modesty in Alvarez makes perfect sense in the context of a contemporary culture with diverse strains of thought and preference on the subject of military honor, ranging, as we have suggested, at least from Falstaff to Quixote. The contemporary political philosopher Charles Taylor has briefly summarized the history of one side of our ambivalence toward military honors:
[t]he ethic of honour and glory, after receiving one of its most inspiring expressions in Corneille, is subjected to a withering critique in the seventeenth century. Its goals are denounced as vainglory and vanity, as the fruits of an almost childish presumption. We find this with Hobbes as well as with Pascal, La Rochefoucauld, and Moliere. But the negative arguments in these writers are not new. Plato himself was suspicious of the honour ethic, as concerned with mere appearances. The Stoics rejected it; and it was denounced by Augustine as the exaltation of the desire for power. ….
The inclination to disparage military-related honor in particular was, of course, hardly exhausted in the Seventeenth Century. 
Another contemporary political philosopher, Kwame Anthony Appiah, takes a more ambivalent, if not warily favorable, approach to military honor. Professor Appiah writes that
[t]hose who train our armies claim that military honor is essential in both motivating and civilizing the conduct of warfare. . . . I am inclined to believe them. But the trouble, of course, is that sentiments [of military honor] -- and what even moderately sensitive soul does not feel the temptation of responding to the call of those bugles? -- make us more likely to go to war.
And of course, there are more unambiguously favorable assessments of the value of military and related forms of honor as well. Among contemporary writers, Alexander Welsh and Sharon Krause99 both note that honor can inspire the valuable subordination, or even the complete sacrifice, of one's most basic personal interests, potentially for the community's greater good. 
The range of plausible evaluations of military honor, and of the necessity for particular formal systems thereof, varies widely. What would be implausible is the claim that what is necessary in order to cost-effectively assess such matters is legal training, a judicial temperament, and exposure to a judicial record. Assessing such matters is ultimately a matter of the best cost-effective practical wisdom and prudential judgment a culture, or some particular institution, can bring to bear. 
In the absence of any serious free speech values meaningfully hanging in the balance, the Court should have sought to avoid deciding Alvarez on constitutional free speech merits. If the latter course was indeed unavoidable, the Court should have acknowledged its lack of any decisive comparative advantage over Congress in judging such contestable matters, and deferred to any reasonable congressional regulatory scheme.  An appropriate judicial modesty, in the absence of any significant countervailing values, would have discouraged any more ambitious judicial undertaking.