Don Draper: Modern-Day Criminal?

by Greenberg Glusker Fields Claman & Machtinger LLP
Contact

This blogger will be the first to admit that I may have a  slight television addiction.  I’m routinely behind in my DVR watching (at least we’ve moved beyond the dark ages of the late 1990s when I had to record my then-favorite shows, Dawson’s Creek and Felicity, on VHS) and I sometimes find myself talking about the relationships between Chuck and Blair, Crosby and Jasmine, or Alicia and Will as though they’re my real-life friends.  (Bonus points for those dear readers who can name all three TV shows I just referenced, without clicking the hyperlinks.)

With that history, it should come as no surprise that I, like so many others, am waiting with bated breath for the return of Mad Men on March 25.  (There’s nothing like a year-and-a-half hiatus to make these trailers — which are really just cleverly edited clips from past shows — super exciting.)  On my drive to work every morning, I see the ads that have generated so much controversy.  So when on a recent drive, I heard this NPR story about the Stolen Valor Act and its intersection with the First Amendment, I confess my thoughts turned to our favorite fictitious, purported war hero, Don Draper.

[Warning:  This blog post reveals plot points from Seasons 1–4 of Mad Men.  Usually the statute of limitations on spoiler alerts would have expired long ago — you’ve had since October 2010 to catch up, people! — but just in case, for those of you who hate great television (and probably puppies and rainbows too) and have therefore managed to ignore the show up until this point, consider yourselves warned.]

First, some background.  The Stolen Valor Act is a relatively recent piece of federal legislation, passed by Congress in 2006.  It has long been a crime to wear an unearned military medal.  But the Stolen Valor Act makes it a crime, punishable by up to one year in prison, to lie in any context about having earned a military honor — whether or not the lie is under oath, and whether or not it harms anyone.

Thanks to a man named Xavier Alvarez, though, the statute is now being reviewed by the United States Supreme Court.  Alvarez appears to be an admitted pathological liar, having purported to be everything from an engineer to an ex-professional hockey player.  (Professional hockey player?  Really?  What is this, Canada?)  But the only lie for which he can be prosecuted is his statement, at a municipal water board meeting in California, that “Back in 1987, I was awarded the Congressional Medal of Honor.”

In August 2010, a divided panel of the Ninth Circuit Court of Appeals in California held that the Stolen Valor Act is unconstitutional because it doesn’t fit within any of the enumerated exceptions to the First Amendment, such as speech that is defamatory, that defrauds, or that is obscene.   According to Judge Smith’s opinion, this would open the door to making “everyday lies” — such as lying about one’s age, misrepresenting one’s financial status on Facebook, or telling one’s mother falsehoods about drinking, smoking or sex — into criminal acts.  In other words, every single person on every single dating site in America would be at risk of immediately becoming a felon.

On March 21, 2011, a majority of judges in the Ninth Circuit refused to have the case reheard before the entire panel.  (This is also known as a hearing “en banc” — legal jargon with which our readers may become very familiar via the Proposition 8 lawsuit.)  That online dating thing apparently struck a real chord with Judge Alex Kozinski, who wrote a lengthy concurrence in which he argued that allowing the government to punish false speech, without more, would be “terrifying” because “[i]f false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit.”  (Good point, Judge Kozinski.  In that case, I personally call for the immediate prosecution of that guy from my online dating days who claimed in his profile that he was 6’ tall when really he was no more than 5’8” on a good day.  You know who you are.)

So now the case is before the United States Supreme Court, which heard oral arguments on February 22.  The Obama administration and the American Legion support the law, which they argue is necessary to preserve the value of the military honors.  Some justices seemed troubled by the “slippery slope” argument, including Justices Ginsburg, Kagan, and Sotomayor.  If this law were upheld, could the government pass similar laws that would prohibit lying about such things as extramarital affairs?  Other justices, including Scalia and Kennedy, seemed persuaded that the Stolen Valor Act could be a very narrow exception to First Amendment protection, based on a compelling government interest.  The high court is expected to rule in June of this year.  And assuming that the law is upheld as no more than a narrow exception, it is unlikely to affect the majority of Americans…other than Don Draper.

The text of the Stolen Valor Act reads, “Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.”  For certain types of medals, including the Purple Heart, the punishment is steeper, with imprisonment up to one year.  Of course, the character we know as Don Draper is really Dick Whitman, lied about being Don Draper in the first place, and did obtain a Purple Heart medal, which the real Don Draper had earned (by being killed in action).  I can just see the courtroom scene now, where Don argues, “But I was awarded a medal, your Honor!”  And of course, Draper/Whitman was really injured in the line of military duty, meaning he really did earn his Purple Heart — even if it was awarded to him in someone else’s name.

Of course, at that point Mr. Draper/Whitman would have bigger fish to fry with respect to his acts of identity theft, desertion from the Army, and half-lifetime of filing various official documents in a dead man’s name…but that’s a blog for another day (and a different law).  (But if it were modern times, Alicia Florrick would represent him, right?  Or maybe I’m going a bit overboard…)

But what if the slope is just as slippery as the critics of the Stolen Valor Act have argued?   Imagine if lying about adultery were a crime, since as Justice Kagan posited, the government has a “strong interest in the sanctity of the family, the stability of the family.”  Sticking with our fictitious world for a moment, Don Draper and almost every other character in Mad Men would be behind bars — not to mention so many of our real-life politicians.  Imagine if lying about one’s age were a crime — we know at least one actress who might wind up in lockdown (along with every teenager who’s ever sported a fake ID).  Or what about Judge Smith’s hypothetical about lying to one’s mother about drinking, smoking, or sex?  Let’s just say I plead the Fifth on that one (my mother is this blog’s biggest fan, after all!).

In this blogger’s opinion, that kind of slippery slope would be something to get really Mad about.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Greenberg Glusker Fields Claman & Machtinger LLP | Attorney Advertising

Written by:

Greenberg Glusker Fields Claman & Machtinger LLP
Contact
more
less

Greenberg Glusker Fields Claman & Machtinger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!