Water Taken For Granted

           I recently received a letter from a United States Congresswoman with a suggestion that her constituents use less water.  Great idea.  The letter was accompanied by a small pamphlet filled with suggestions for using less water.

I don’t often get letters from members of Congress.  But this one was particularly useful.  I glanced over the pamphlet to see if there was much I could do to save water at home.  Most of the suggestions were based on common sense – suggestions like don’t leave your hose running, fix your leaky faucets, turn off the faucet while brushing your teeth — those types of things.  The pamphlet described the significant price of water – and highlighted a resource that most of the time seems invisible, which is domestic water use.

I’ve known people who own properties out in rural areas – out in the “country.”  These were farmers, or ranchers, or people who just like their privacy.  But you don’t have to talk to these people for very long before you realize that they are very, very attuned to water use – both domestic water use, as well as water disposal.  They’ll tell you they can’t just turn on a tap and use all the water they want – they have to rely on wells, and wells have limited “recharge” rates, so they often have holding tanks for water storage so that they can have more water available “on demand.”

The fact that water use is invisible to most of us is a tribute to the effectiveness of the work done by our public utilities and water resources boards.  If the water supply were limited or disrupted, we’d know it – in a hurry.  I know that some people keep a couple of 50 gallon barrels of water stored outside their homes  – just in case.  And in the event of a water supply disruption, most people would have a large water heater full of water, and many, many water heaters have a convenient drain spigot located right at the bottom of the tank – so that most people would have something like fifty gallons of water immediately available in the event of an emergency.

But overall – the municipal water supply systems work seamlessly, and invisibly.  As long as you can pay your bill, the water just keeps on flowing.

Most people probably don’t ever think much about the water boards that help oversee and develop the water distribution system.  For the most part, these boards work in the background.  But there was a recent case decided by the United States Supreme Court that arose out of some statements made by a water board member at a public meeting held by a water district board.

In 2007, a water board meeting was held where a new board member attended.  At the meeting, this new board member introduced himself as a retired marine with 25 years of service.  He claimed that he had received the Congressional Medal of Honor in 1987, and that had been wounded many times by the same person.  However, the Supreme Court found that none of these statements were true.  The statements weren’t made to obtain employment or financial benefits, nor to get privileges for those who had received the Congressional Medal of Honor.  Instead, the statements were just made by way of  “introduction.”

Unfortunately for this new board member, his statements violated a relatively new federal law known as the “Stolen Valor Act of 2005″ which makes it a crime to make such false statements.

This law makes it a federal crime for a person to falsely represent that he or she has been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.  Violators can be fined, or imprisoned for not more than six months, or both.  If the false representation concern the Congressional Medal of Honor, then the term of imprisonment could be as much as 1 year.

The water board member who made the false statements pleaded guilty to a violation of the federal Act, but he reserved his right to appeal his claim that the federal Stolen Valor Act violates the First Amendment right to free speech and is therefore unconstitutional under the United States Constitution.

The Ninth Circuit Court of Appeals found the Stolen Valor Act to be unconstitutional.  The United States Supreme Court granted review.

In its opinion, the Supreme Court acknowledged the government’s interest in preserving the honor associated with the Congressional Medal of Honor.  The Supreme Court noted that the Congressional Medal of Honor was established in 1861.  It is reserved for one who has distinguished himself or herself “conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty.”  The Supreme Court cited The White House Blog, as visited on June 12, 2012, for several instances where the Congressional Medal of Honor has been awarded. The Supreme Court’s opinion mentioned the situation of “Dakota Meyer who in 2009 drove five times into the midst of a Taliban ambush to save 36 lives.”  The Court’s opinion also noted the case of “Desmond Doss, who served as an army medic on Okinawa and who, on June 5, 1945, rescued 75 fellow soldiers, and who, after being wounded, gave up his own place on a stretcher so others could be taken to safety.”  The Court’s opinion described the case of “William Carney who sustained multiple gunshot wounds to the head, chest, legs, and arm, and yet carried the flag to ensure it did not touch the ground during the Union army’s assault on Fort Wagner in July of 1863.”  The Court wrote that “The rare acts of courage the Medal celebrates led President Truman to say he would ‘rather have that medal round my neck than . . . be president of the United States.’”

The Supreme Court’s opinion showed little sympathy for the water board member who had made the false statements. But the Court also noted that a law which outlaws false statements, with nothing more, can be an unreasonable restraint on the right of free speech.  The Court noted that government can usually outlaw false speech which is made to obtain a job or other benefits through fraud.  The Court also noted that the law can properly prevent a person from falsely claiming to speak on behalf of the government.  The law can also criminalize false statements under oath, which constitute perjury, and the law can criminalize false statements made to government officials.  But the Supreme Court held that where, as here, the law only seeks to criminalize false statements which are not made to obtain employment, or are not perjury, or which aren’t made to government officials, then in such cases the government may not be able to properly pass a law that makes such false statements a criminal act.  The Court stated that “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.  Though few might find [the water board member’s] statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression.”  As a result, the Supreme Court upheld the judgment of the Court of Appeal, which had found the Stolen Valor Act is unconstitutional.  The case is reported as United States v. Alvarez (2012) DJDAR 8961.

Care should be used in considering the Supreme Court’s opinion in this matter.  Honesty truly is the best policy.  There are many laws which make it a crime to make false statements in certain situations (for example, in loan applications), and there are many, many other laws which provide for civil liability when false statements are made.  Those who make false statements do so at their peril, both civilly and criminally.  Viewed in its proper light, the Supreme Court’s opinion in the Alvarez case is not so much an endorsement of the right to make false statements as it is a decision which upholds the right to speak freely without unreasonable governmental intervention or restriction.  But the laws concerning free speech are complex, and any given situation can have a multitude of outcomes.  The complexity of this area of the law can be seen in the fact that two federal courts of appeal reached conflicting decisions on the very same issue of whether or not the Stolen Valor Act of 2005 is constitutional.  When truth is spoken, then the speaker need not ever have concern about the potential consequences of having spoken or written an untruth.  Of course, in legal matters even speaking the truth, or speaking at all, can have significant consequences, and that is one of the reasons why persons involved in any legal matter at all should consult legal counsel.

Copyright 2017 ROBERT B. JACOBS