Kennedy-Western lawsuit

Dear Michael,

You did make the statement multiple times.

Contrary to your multiple assertions Federal statutes do not replace state statutes. At least that is what I thought you were saying but like I said you are rather obtuse so I might have misunderstood your intent. (Perhaps you should look up the word in the dictionary?)

I'm pleased that I was able to enlighten you with the difference between constituions and statutes.

Now what did you think that had to do with the KWU suit?

 

Once again... what I said was federal law trumps state law... (translation for your limited mental ability - Federal law takes precedence over state law)... I think the medical marijuana example was perfect, the drug enforcement agency threatened doctors with arrest if the prescribed marijuana under state law. their argument was that since marijuana was illegal at the federal level the state could not pass a law making it legal.....

 

Um...federal pre emption is often a non-trivial analysis, especially where there is no specific congressional enactment.

As a general rule, the U.S. constitution establishes the federal constitution and treaties, and the statutes and regulations based upon those sources, as the supreme law of the land. However, in theory at least, the federal government is a government of LIMITED, ENUMERATED powers whereas each individual state retains the residuum of powers not specifically delegated by the states to the federal government.

When I was in law school, the case law seemed to be pointing to a final situation where virtually any congressional enactment could be justified under one or another of the enumerated powers. Since then, however, the federal courts seem more willing to restrict federal power in the name of state sovereignty.

In any event, where there is no specific congressional enactment, sometimes there's pre empting federal law and sometimes there is not.

So.

 

So, as I see it there are two schools of thought here.

(1) There is strong support for States rights and accreditation-only laws such as Oregons, as well as support for criminalizing individuals who claim to possess an unaccredited degree even if it is State-Approved or State-licensed (labeled substandard unless specifically approved by the ODA, standard being defined as accredited). This is considered to override individual free speech considerations since it is for the public good. Unaccredited is equivalent to fraudulent.

(2) There is strong support for Individual rights, meaning Oregon has the right to regulate schools but does not have the right to restrict or criminalize someone for claiming a fact such as possessing a State-licensed or State-approved degree excepting those who present fraudulent (non-existant, non-licensed, non-state approved) credentials. This recognizes that the standard being used by Oregon is described as voluntary by the US Department of Education and all schools are unaccredited at some stage of their lifecycle.

Possible results:
(1) If the Oregon law is upheld, the freedom of speech could be further eroded and criminals created with similar laws in other States expanding into fields other than education (you can get a lot of mileage with public good). Diploma mills will continue to exist and peddle their wares.

(2) If the Oregon law is overruled, personal freedoms will be upheld, Oregon will modify its education regulations to meet its charter ....and Diploma mills will continue to exist and peddle their wares.

It will be very interesting to see how this case is determined. I believe KWU can be called to task and discredited given their history and methods but the issues go beyond the plaintiff.

 

Nice post Kirkland, I agree with most of it.

My view on the free speech issue though is that it doesn't really apply. (Again though, I'm not a lawyer.) I don't believe that it applies because the issue is that a degree has an expectation implicitly associated with it that it meets the common standard. So someone claiming a degree that does not meet that commonly expected standard does not really have the degree. So the law just makes it clear that if you don't meet that common standard then you can't rightfully claim to hold that degree. It's not a free speech issue it's an issue of not being able to claim something that isn't true.

Regarding KWU as a "blemished" test case, I agree. It might have been more interesting if CCU had brought the case.

(I also note that KWU is currently prevented from peddling their wares in Oregon.)

 

Perhaps, but I don’t think your summaries do justice to either point of view.

In the Sate of Oregon, unaccredited is not equivalent to fraudulent, as Bob Jones University and other unccredited instituions are acceptable. Under Oregon law, only unaccredited schools that are unwilling or unable to undergo additional validation (the bar to which appears to have been set extremely low) to prove that the degrees they issue, in some shape or form, resemble what the public expects them to represent, are considered fraudulent.

Whether or not the standard being used by Oregon is described as voluntary by the US Department of Education or whether all schools are unaccredited at some stage of their lifecycle, really has no bearing on this case. The issue is simply whether an individuals right to free speech should permit him or her to claim something that has the potential to seriously harm the public. In other words, in this specific instance, what takes precedence: an individuals right to free speech or the public good?

Huh? What kind of nonsensical scare tactic is that?

As they have for centuries…

Personal freedoms will be upheld at the expense of what?

As they have for centuries…

I think we call all agree on this; every degree mill seems to have a stake in the outcome of this case.

 

This is the point I was trying to make earlier in this thread. I think this is the weakest part of the case, and why I think it will be dismissed. If all unaccredited degrees were labled as illegal without an application process to become legal and approved then the complaint might be justified. However, I think whomever judges this case will ask KWU why it did not even attempt to apply to become approved, and most likely open KWU to further embarassment if the ODA brings forth evidence to show why they labled KWU the way they did.

I do think that the ODA will have to remove the diploma mill label from the ODA website, and only be allowed to list schools as illegal or legal rather than describe them.

 

This is all very interesting, but even if Oregon loses, it means nothing, really, in the long-term. All it will mean is that Oregon needs to go back to the drawing board and draft legislation that will withstand constitutional scrutiny.

This sort of thing has happened countless times with licensing and zoning laws across this vast nation. And, remember, what Oregon is doing is remarkably similar -- constitutionally speaking -- to a licensing regulatory scheme. Government regulators think up licensing schemes or zoning laws and write the regulatory language. They run it past counsel and get the okeedokie. A legislator is recuited to propose the legislation, get it assigned to the apporpriate committee, get the hearings scheduled, make sure witnesses are there, establish the appropriate relationships and/or make the appropriate deals with other legislators and get them on-board, coordinate with the equivalent committee in the other house and with the legislator(s) there who will propose that house's version of the legislation, get it passed (first in one house then in the other), and then watch with satisfaction while the governor signs it and it becomes law the following January.

Then along comes a lawsuit and sometimes everyone discovers that maybe back when counsel gave the regulatory language the okeedokie they didn't really do their homework and, suddenly and sometimes unexpectedly, the law gets overturnd for some purely technical constitutional reason that has nothing whatsoever to do with, nor means that there is anything inherently wrong with, the larger thing that the legislation was trying to accomplish in the first place.

Hopefully, when that happens, and if the thing being regulated really is the sort of thing that the state should be trying to control, and if those wishing to regulate are serious about getting it done right, the regulators start all over again. And equally hopefully, the second time around, those writing the law will bring in experts who understand the constitutional issues and who will draft the legislation for them, defending every clause of it with case citations from other similar cases where judges have ruled either in favor or against the sort of thing set forth in said clause. It's all very tedious and requires tremendous amounts of research which lawyers hired by government (or, worse, who are in-house... typically in the Attorney General's office) absolutely hate and usually don't bother to do anywhere near thoroughly enough.

It's a process. It takes time... longer than it needs to, actually, whenever the regulators require multiple unfavorable consitutional rulings before they finally get it. But, sooner or later, regulatory language that withstands constitutional scrutiny finally gets passed and, when challenged in court, finally stands-up as it should. When that happens, true regulation (and whatever benefits therefrom which government regulators promised in the first place) will finally be observed.

Let's get something clear, here, that some in this thread seem not to grasp: Oregon (or any state, for that matter) has the absolute right to do what it's doing.

Let's make no mistake about that, shall we? Let's stop talking about whether it can or can't because it's just making this thread longer than it has to be and just reading it is taking-up too much of our collective time already.

Oregon can do it.. simple as that. Repeating that it can't won't make it so. And with any luck, Oregon will do it -- but, hopefully, not quite in the precise manner that it's been trying so far.

Truly protected speech, generally, is remarkably limited. Truly protected speech which cannot be regulated at all is even more limited. A state's right to regulate speech -- even protected speech -- has clearly been upheld by the courts. It is affirmed by more rulings than I could ever list here and I wouldn't bother even if I could. States may determine what is and is not acceptable for use within them -- and/or how and/or when or for what purpose and/or where and/or by whom things may be used within them -- be it a license, a certificate, a vehicle, a food, an animal, a drug, a medical procedure, a sport, a type of school, a degree, flags, banners, plants, business types, business locations (zoning), signage, parking, pollution levels, lighting, noise, smells, heights of things, widths of things, weights of things, angles of things, colors of things, placement of things, agriculture, fuels, storage, professions, professionals, journeymen, crafts, craftsmen, arts (but only in very limited ways), sciences, utilities, technologies, technologists, parades, speeches, gatherings, use of public lands, use of private lands (zoning again)... and the list just goes on and on and on and on and on and on and on (and on).

Any one of those things which states may regulate can be somehow called (some of them, obviously, weirdly) "protected" speech which cannot be regulated. All anyone needs to make such a claim is the filing fee and the know-how to draft a complaint. As the old saying goes, "Anyone with a hundred bucks and a hard-on can sue anyone else."

It means nothing, really... at least not at first, and possibly not in the end, either. Getting the complaint past preliminary hearings and having the judge actually hold that it's worthy of being heard in trial is, in and of itself, a huge hurdle for the plaintiff. Even when cleared, there are about a zillion ways and places that the plaintiff's case can fall apart and not be worth the time it would take to carry its paperwork to the trash can.

And, of course, the opposite can happen, too... obviously... and often does.

If Oregon wins it will not mean that the law still cannot be overturned if attacked from another angle. I, for example, have grave concerns about some of the specifics of Oregon's methodologies and the criminalization procedural aspects and what they do to a potential defendant's self-incrimination and due-process rights, among other things -- matters, by the way, that are not even covered in the current lawsuit.

Moreover, if Oregon wins, it will signal (and quite incorrectly, in my opinion) to other states -- states that want to pass legislation like Oregon's but which are now waiting to see if the Federal Court overturns it -- that Oregon's language does withstand constitutional scrutiny and can, therefore, be modeled after. Suddenly, Oregon's language (with state-specific revisions where necessary, of course) will be incorporated into every state's body of laws. And that really would be problemtatic... or so it is my opinion. Oregon's language needs a lot of refinement.

If Oregon loses, it will only mean that the specific parts of the law that were attacked in this lawsuit are bad and need to be re-drafted and re-passed in the legislature. If that happens, the entire law will likely be struck down, but legislators will only concentrate on the things the judge said were wrong with it when they incorporate their changes into the original language and then re-submit it for passage.

Trial and error, trial and error, trial and error. The more of it there is, the more obvious it is that regulators' counsel didn't really do his/her job before giving that okeedokie mentioned earlier. That's really all any of it means.

Drafting regulatory language that gets the job done effectively while not, at the same time, trampling on the constitutional rights of those it regulates, as I've said here before, is a very tricky business, indeed. Most zoning laws and licensing schemes in this country -- be they statutory or mere local ordinances -- are unconstitutional (some of them glaringly so), but simply haven't been challenged properly in court yet so no one (except maybe for people like me) really realizes it.

Oregon's law is being challenged in this suit over a relatively small number of potential constitutional issues which could conceivably arise out of that state's particular flavor of degree and/or institution of higher learning regulation. Even when this case is finished, it will, by no stretch of the imagination, be the end of it.

All the states are hurting financially. Everyone's trying to save money. Unless a given state happens to have a particularly gifted consultant or consultant-attorney on its side -- not at times like this, but way back when the legislation was first being written -- to do the exhaustive research necessary to determine if the language withstands consitutional scrutiny (and can show why) and to subsequently recommend how the language must be changed so it will still be effective while also being lawful, then this sort of thing is going to happen -- again and again and again, sometimes. Sloppy regulatory language, sadly, is often the rule rather than the exception -- especially in the early days of any governments' attempts to regulate a given thing.

I'll tell you at least one thing that would really help the discussion in this thread, and that would be if one of the legal eagles around here would bother to brief the complaint in layperson's terms (and in less than the 10,000 character-per-post limitation) so that the true issues and relevancies of this case are a bit more clear to everyone. There's a whole lotta' speculation around here over things that aren't even at issue in this case.

Is there anyone here (who actually knows how and who has a helluva' lot more time than I do) up for a thing like that?

 

brief the complaint in layman's terms

That would be helpful.

 

Difficult case

I think that Mr. Contreras is a good man but he does not tell us the exact essence of the complaint.

The fact that it is criminal in Oregon to mention a non accredited degree in a resumé is, I think, too much and definitely violates the constitution. What is the position of the ACLU?

I think that Mr. Contreras is passionate and goes sometimes too far.



He seems to forget that he represents a State governement agency and that he should be show more restraint to be effective. To decide unilaterally, to label an institution as " a diploma mill" in writing on a government site, with no due process and hearings, could be seen as unfair and unconstitutional.



Why not simply write:"XXX university does not satify such Oregon Law, period and not to express quality judgement."

It is sad to see that again good intentions could induce bad results. I imagine that it will not be the only legal action against ODA... The sharks are circling.

Lets be fair, let chase the diploma mills but we should not act like the Spanish inquisition..

No mistake, with this legal action, we are in bad shape...

My bet : KWU will have a partial victory, because ODA and Oregon is going too far.

 

Michael73 and St. Regis Philbun....please watch the personal attacks.

Everyone gets a freebie from me, and you have both gotten yours.

 

(1) I agree this could be a long process, as complex and politically driven as it is. Sometimes, it is just too hard, with not enough support, and with other priorities to worry about to get it back to the front burner. I don't believe Florida ever successfully revised its law from the 90's when it was struck down as unconstitutional.

(2) I disagree with you on this (assuming we're talking about 1st amendment issues and the criminalization of unaccredited degree holders, irrespective of those with fraudulent, non-existent credentials... but state-licensed or state-approved). I believe this will be one of the fundamental issues in the case.

(3) I respect your opinion, but this is a conversation about the issues; it doesn't require your direction. ...I always get a little hinky when someone tells me what I should or shouldn't be saying...I believe you are incorrect regarding the State's absolute power in this case.

 

You are absolutely correct. Some states never circle back... tragically, in most cases. If it's worth doing, it's worth doing right. And sometimes doing it right means taking several cracks at it before it's finally done. If a state hasn't the stomach for it, it should probably not try in the first place. But that, too, would be tragic in most cases.

I have argued elsewhere, herein, that all states which authorize institutions to issue degrees; and which require of said institutions that they require of their students some serious rigor in order to earn said degrees; and which routinely inspect said institutioins and ensure that they're legit and really offering educations of objective value on-par with regionally-accredited institutions, should probably all be honoring one another's degrees. I still believe that's true.

I'm sorry you disagree with me that Oregon (and other states) can do what Oregon is doing. To me it's a little like disagreeing with someone's observation that the sky is blue or that water's wet, but, hey, you're free to disagree with whatever or whomever you like. The observer is left to decide who looks most foolish.

As do I yours... just wanted to take two seconds to make sure that was very clear to you and whomever else cares about such things.

It's a thread, by its title, about the KWU lawsuit. I'm merely trying to keep it, to the degree possible and obviously not rigidly so, on topic. We're starting to discuss things that are interesting and I'll admit marginally relevant, but which don't really speak to the specifics of the lawsuit... hence my reason for suggesting that someone (who knows how to do it) do a dispassionate, objective, 10,000-character-or-less brief of the complaint so that when we do argue, we're arguing about stuff that's actually at issue in the suit. And I confess to having another motivation in wanting that: This is obviously an interesting subject and I really think there's a terrific civics and legal lesson to be learned, here, for those who have a limited understanding of how such things work but who would really like to understand it. Since I believe that this suit is but the first of many that will spring-up across the nation in the next few years which are ostensibly aimed at striking down laws which attempt to curb diploma mills and stopping the fraudulent use of "degrees" therefrom; and since the folks at DegreeInfo are known for really understanding these things, I thought the discussion of the KWU suit in this thread might make a great place to start helping everyone understand the arcane ins and outs of this sort of thing. However, if we go for page after page after page of essentially off-topic (though, admittedly, still interesting in many cases) posts, I fear we'll wear everyone out. Just my opinion, of course. Didn't mean to make you feel hinky.

I've been a party or close witness to the drafting of many licensing statutes and ordinances across this country over the years, and it's always interesting to watch those with opinions just like yours nevertheless stand in line and pony-up their license application fees (mumbling under their breaths, of course) after the legislation they swore was unconstitutional not only gets passed, but subsequently withstands constitutional scrutiny in court. To them I have always said something to the effect, "That's okay. Believe what you want. Just don't forget, when our language becomes law next year, to call ahead and learn what the application fee will be so you'll be sure bring enough money to obtain your license."

This is not an "absolute power" sort of issue. When states flat-out ban things, that's an "absolutel power" issue. And the courts have found in many absolute banning cases that the states have gone too far, as you're alleging is true in Oregon's case. But, like it or not, when a state says, in effect:

• 1. That you may do a certain thing within our borders, but only in the certain way that we prescribe, and pursuant to our published standards; and,
  
  2. when the state can show a compelling public benefit; or that, by so establishing said standards, public health, safety, security, or other public benefits or interests would be present which would not be present otherwise; and, absent such standards, public harm can be clearly shown; and
  
  3. when the state goes to great lengths to ensure that all citizens are treated equally and reasonably in its establishment of said standards and the requirements for compliance therewith; and,
  
  4. when the state ensures that the methods and requirements for achieving said standards, whatever they are, are reasonable and within the reach of virtually anyone who is willing to endure the reasonable and reasonably achievable rigors of compliance; and,
  
  5. when the state further ensures that establishing the standards in the first place does not unduly or unreasonably prohibit protected speech; and,
  
  6. when the state further ensures that the costs, overall, of compliance are reasonable and not, in and of themselves, an undeclared but nevertheless effective barrier to compliance; and,
  
  8. when the state sets forth in its legislation clear methods by which those who have been denied the ability to do whatever it is that's being regulated may appeal the state's decision and obtain substantive due process; and,
  
  9. when the penalties for violation of the law are clearly stated and are reasonable and appropriate to said violation; and when imposition of said penalties is pursuant to substantive due process and said due process does not, by itself, somehow trample on the defendant's civil rights,

then, trust me, the state may regulate to its heart's content. That's what the courts have ruled -- over and over and over and over and over again -- and your "disagreeing" won't change that.

Every licensure and/or zoning law in this country operates under the very same sort of legal theories that anti-diploma mill laws will, trust me, ultimately operate under. Sooner or later the anti-diploma mill regulators in the various states will realize that they need to obtain the services of whatever brilliant legal minds within their states drafted whatever licensure laws said states currently have and enjoy. Apply the same sort of reasoning and logic (though clearly not the exact same tool) to anti-diploma mill laws as one applies to licensure laws (which subsequently withstand constitutional scrutiny), and most of the constitutional issues will magically evaporate. Mark my word.

 

Gregg DesElms, I would like to sincerely thank you for the post. I feel that I learned a lot and will reread it at least one more time. I think it is absolutely safe to say that the vast majority of people that read this forum are interested in learning and have learned from your posts.

Thank you very much,
Bill

 

Very descriptive post Greg. The Oregon citizen plaintiffs are claiming they are inappropriately gagged from claiming they have met the criteria set out by a school licensed as a degree granting institution under the regulations of another State. They are not claiming their degrees are suitable for a specific use or position, just that they be allowed to speak that fact without fear of intimidation or criminality from the State of Oregon. Looks to me like Alan is going to have a lot of work to do, especially with regards to #2, 3, 5, and 9.

 

Deselms:

Interesting post.

Do you draw a distinction between a K-W grad saying, in Oregon, "I completed K-W's Ph.D. program in business" and "I am a Doctor of Philosophy in Business and on the basis of my expertise, you should hire me."?

The distinction seems subtle but real to me. One is a statement of verifiable, objective fact. The other COULD be a fraudulent misrepresentation.

One could be protected under the first amendment; the other, not.

Your thought?

 

Excellent! Thank you, so much, Kirkland, for your post. You've proferred several (actually, four, when you think about it) relevant and cogent lines of thinking, to wit:

Firstly, if a degree is granted by a degree-granting institution with one state's imprimatur, may another state summarily dismiss said degree out of hand for whatever reasons of its own; and is that, in fact, what the complaint is alleging Oregon has done?

Secondly (and this is a two-parter),

• PART A: Does Oregon's statute effectively prohibit the mere utterance or disclosure by or to anyone within its borders of one's degree which is categorically illegal for use within that state by virtue of said statute; and is that, in fact, what the complaint alleges?
  
  PART B: If it does not, then does the lawsuit allege harm which does not, in fact, exist; or, if it does, then does said prohibition rise to the level of being an unconstitutional prohibition of (First Amendment-)protected speech; and is that, in fact, what the complaint alleges?

Thirdly, if the utterance or disclosure of one's degree is categorically prohibited by Oregon's statute, is the perceived harm of having done so effectively mitigated by the fact that the utterer/discloser was not overtly attempting to use said utterance/diclosure for any specific purpose which would inure to the benefit of the utterer/discloser and to the harm of the state; and is that, in fact, what the complaint is alleging?

Fourthly, (and this is a four-parter):

• Regarding item 2: Can the state of Oregon show compelling public benefit from its statute? Is it necesssary for Oregon to regulate degrees in the first place? What public harm comes from not doing so? What public benefit is achieved by doing so? And is this part of what the complaint alleges?
  
  Regarding item 3: Does Oregon's statute single-out a class of citizenry unfairly? How? And, if so, does it establish standards of compliance that are inherently unfair or not reasonably achievable by said singled-out class of citizenry; and if so, how? And is this part of what the complaint alleges?
  
  Regarding item 5: Does Oregon's statute fail to effectively ensure that protected speech will not be prohibited? How? And is this part of what the complaint alleges?
  
  Regarding item 9: Are the penalties for violating Oregon's statute clearly stated and do they "fit the crime," so to speak? Are they appropriate, under the circumstances? Does the statute prescribe a procedure for dealing with those who violate it which provides substantive due process which does not inadvertently trample on the defendant's civil rights along the way? And is this part of what the complaint alleges?

Okay... now we're gettin' somewhere!

 

The law prohibits the "use" of a substandard degree in Oregon. The ODA has stated that this has been interpretted to mean used in trying to obtain a job or as part of one's job, e.g., hanging on the wall in public view in the office, placing in a resume, distributing a business card with the degree listed.

I would interpret that to mean that one is not restricted from getting a substandard degree. (Where would be the public harm in that?) One is not restricted from claiming the degree in casual conversation with a neighbor. (Where would be the public harm in that?) I think that the law is okay from that point of view. It doesn't seem to go further than it needs to in this regard in protecting the public from harm.

 

I'm sorry, but I'm so on-the-lookout, just generally in life, for "loaded" questions that I fear I'm going to go too far in my qualification and hair-splitting, here, but strictly technically speaking, does Oregon's statute prohibit a casual declaration that one merely completed a Ph.D program (as opposed to the outright claiming of the degree in a more formal way)? (A rhetorical question.)

Also, to keep the comparison truly apples-to-apples, here, so that the salient differentiation which you have set forth (i.e., the inducement to rely on the degree as a basis for employment) is, in fact, the sole differentiation, I think we should (or, at least, I would humbly ask your permission to) re-state the question thusly:

• Do you draw a distinction between a K-W grad saying, in Oregon, "I have a Ph.D in business from K-W" and "I have a Ph.D in business from K-W, and on the basis of my expertise you should hire me?"

By way of further clarification, I think it's safe to say that your question presumes the illigitimacy of the K-W Ph.D in any case, else why would making the utterance, with or without the added invitation to rely thereupon as a qualification for employment, be a matter of concern? So, for our purposes, here, let's assume that the claim, made in Oregon, is illegal according to that state's statute.

There. I think we've now adequately established laboratory conditions.

Indeed. Well, this is sort of along the same lines as what is addressed, by hook or by crook, by the part of my previous posting -- the one I was authoring even as you posted your message to which I'm now replying -- that re-stated the third of Kirkland's concerns, to wit:

• "Thirdly, if the utterance or disclosure of one's degree is categorically prohibited by Oregon's statute, is the perceived harm of having done so effectively mitigated by the fact that the utterer/discloser was not overtly attempting to use said utterance/disclosure for any specific purpose which would inure to the benefit of the utterer/discloser and to the harm of the state; and is that, in fact, what the complaint is alleging?"

By way of even further clarification, I assume you're saying that "I have a Ph.D in business from K-W" is the "statement of verifiable, objective fact" that "could be protected under the first amendment;" and that "I have a Ph.D in business from K-W, and on the basis of my expertise you should hire me?" is the one that "COULD be a fraudulent misrepresentation" that, if so, is not protected.

I do draw a distinction, and in much the same way and for much the same reasons as you do. However, under the right circumstances it may well be a distinction without a difference. The various apparently more obvious constitutional free speech issues notwithstanding, I believe Rich Douglas's (and others') point(s) made throughout these forums over and over again is(are) somewhat well-illustrated, in a way, by this interesting little hypothetical.

For what logical and reasonable purpose would anyone make the claim of having the degree -- regardless whether it is accompanied by the expressed, appended invitation to rely thereupon as a qualification for employment -- if it weren't to somehow impress others hearing it with information that is categorically false and, therefore, misleading? Does the reason why anyone who hears the false claim might subsequently rely upon it even matter? Is it not wrong to mislead, under any and all circumstances such as these, even when precisely how harm could come from anyone's reliance thereupon is not immediately evident?

A degree is not something one merely goes down to the corner store and purchases and then wears on one's chest. Society has come to assume certain things to be true about a degree and one's claim of its ownership; that it evidences certain accomplishments which may only be achieved over time, through rigorous study, by means of the demonstration of the acquisition of a certain minimum level of knowledge and expertise in the degree's subject area; and that said degree was awarded by an institution of higher learning which, itself, has honor and integrity and may be presumed to be trusted not to have awarded said degree unless it was truly earned.

Given the history of such things, those are reasonable assumptions on the part of the listener, and they form the backdrop against which the listener both judges the degree's value as well as the relative accuracy or value of anything the claimer of said degree either says or does.

It is reasonable to assume that the listener would be induced, upon learning of the alleged degree-holder's credential, to afford him whatever honor and respect that society typically accords such persons; and may be further induced to accept from him information, guidance, direction, or other things of value upon which he may rely -- and possibly to his detriment -- based solely on the alleged degree-holder's claim of said credential's ownership.

Therefore, I'm not entirely certain that the first statement is truly protected speech; or that there's any practical difference between it and the second. Because of the institutional imprimatur implied by the claim, and all that most reasonable persons hearing said claim would assume naturally comes with it, a reasonable person might be induced -- by the claim, alone (even without any appended invitation to rely thereupon for anything) -- into reliance thereon, and to his detriment.

This is extreme, but let's say that a group of people all got onto a bus for a field trip somewhere. And let's say that someone on said bus stood up and declared, simply and falsely, that he's a paramedic -- just that... no appended invitation to, therefore, feel free to do or not do anything informed by the subsequent reasonable assumption that if one were to somehow become injured while so doing, qualified emergency help would be nearby.

Even absent said appended invitation, would it not be reasonable for the rest of the people on said bus to nevertheless presume that if they were somehow injured during the trip, qualified emergency help would be just a few feet away? Are they not mislead by the false claim -- potentially to their detriment for their reasonable reliance thereupon?

Because of the very nature of what is being claimed, the claim, alone, has the power to induce others into reasonable reliance thereupon, potentially to their detriment.

Degrees, I would argue, are in the same class as other professional credentials upon which people tend to rely as they make decisions about their future actions. When a claim of credential ownership is false and persons who hear said claim unknowingly but reasonably rely thereon to inform their decisions, and when said unknowing and misguided reasonable reliance puts them somehow in harm's way -- even if harm never actually ends-up coming to them before they are finally in harm's way no longer -- I would argue that a criminal fraud has truly been committed. Actual harm to the victim needn't be shown in order for the state to prove the elements of criminal fraud.

I would say that this is, in part, Oregon's position, as well... though its statute, as currently written, may neither adequately express said concern and concomitant overriding public interest imperative, nor prescribe an appropriate and effective means of truly regulating it.

Yes, there's a distinction -- the kind of distinction, I'd say, and for the very reasons, that you cited. But I'm not entirely sure, as a practical matter, that there's a substantive difference.

 

Personal attacks

I did not attack anyone until after I was personally attacked by Mr. Bill.... I feel he deserved a personal slap after his unprovoked attack on me..