Don Draper: Modern-Day Criminal?

by Greenberg Glusker Fields Claman & Machtinger LLP

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.

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