Even liars have free-speech rights

Does the free speech guaranteed by the First Amendment include a right to lie?

Good question, because the Supreme Court – wisely, in my opinion, anyway – has never come right out and said exactly, one way or another.

But it looks like the court will soon face the question of a constitutional right to lie head on, having agreed to hear the case of Xavier Alvarez, as despicable a prevaricator as you can imagine.

Alvarez, a small-time Claremont, Calif., elected official, introduced himself at a public meeting, falsely claiming to be a Marine of 25 years service and a Medal of Honor recipient.

Alvarez was charged under the federal Stolen Valor Act of 2005, with a misdemeanor punishable by fine and up to a year in jail. Frankly, a good cowhiding seems too lenient for a man who would so exploit the service and sacrifice of others.

But the federal appeals court in San Francisco found the law violated the First Amendment because even lies were presumptively protected by the First Amendment.

If it were up to me, I’d let that ruling stand. There are times when false speech can be punished constitutionally, but only when the government has articulated what the courts call a compelling interest.

The stated purpose of the law is to protect the reputation of military medals. But the medals themselves need no such protection and the real-life men and women who wear them don’t either. The slimy lies of imposters in no way detract from the honest heroism that any real Medal of Honor recipient would tell you is widespread in our armed forces.

“To suggest that the battlefield heroism of our servicemen and women is motivated in any way, let alone in a compelling way, by consideration of whether a medal may be awarded simply defies my comprehension,” U.S. District Judge Robert Blackburn wrote in a decision in a Colorado challenge to the Stolen Valor Act. “This wholly unsubstantiated assertion is, frankly, shocking and, indeed, unintentionally insulting to the profound sacrifices of military personnel the Stolen Valor Act purports to honor.”

But the Obama administration is pressing the point, hoping no doubt for political points by “protecting” real medal recipients. I hate it when Democrats play politics with military patriotism, because they are so likely to get it wrong, as they did here. And anyone who insists the Stolen Valor Act isn’t a significant departure from traditional First Amendment freedoms isn’t, well, telling the truth.

True enough, the Constitution has never been seen to protect many kinds of falsehoods. But the government has articulated compelling reasons for punishing perjury, false advertising and libel.

But the Supreme Court has also repeatedly ruled that we sometimes have to protect false speech to protect speech that really matters, and that making crimes out of lies, per se, dangerously dilutes constitutional protections.

If military reputation is a compelling government interest, for example, could candidates be charged for exaggerating their accomplishments on the battlefield? Conversely, could future swift-boaters be charged for “false” attacks against a politician’s military record?

The Greek playwright Aeschylus wrote that the first casualty of war is truth. There is often scant veracity in political discourse either, but the courts have concluded that you can’t prosecute “false” political claims in a democracy. False claims are inevitable in political debate, and free speech needs “breathing room” to survive, the courts have ruled. True enough, either a soldier won a medal or he didn’t, but once you criminalize lies you start down the slippery slope to the thought police.

As George Washington University law professor Jonathan Turley wrote of the Alvarez case, “The power to criminalize lies includes the right to define a lie. Giving the government such power would allow it to target ‘liars’ who it portrays as endangering or dishonoring society. It is enough to make Big Brother blush.”

The administration and the dissenters in Alvarez insist that since the Constitution offers no protection for false speech, the government needs no compelling interest to regulate lies, only a “rational basis” to do so. The government could criminalize lies of any stripe under that rationale.

“If 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,” wrote Ninth Circuit Chief Judge Alex Kozinski, a Reagan appointee. “Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes.”

In his essay “On Liberty,” John Stuart Mill argued that we tolerate falsehood because clashing with it in the marketplace of ideas gives us “a livelier impression” of the truth.

True enough, there is often real difference between falsehoods and outright lies. But to tell you the truth, I’d like to figure that difference out for myself, thank you very much, instead of letting Congress do it for me.