While the health-care ruling last Thursday was getting all the attention, the Supreme Court quietly decided a First Amendment case that recognizes a right to lie.
Or, more accurately, recognizes a right to be free from government prosecution for lying about your military service. In U.S. v. Alvarez, the court struck down a federal law that made it a crime to lie about receiving military decorations, including the Medal of Honor.
The case started when Xavier 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 beating 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 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.”
A 6-3 majority upheld that ruling, though on a variety different of legal grounds. Justice Anthony Kennedy’s majority opinion, joined by three other justices, upheld Alvarez’ lies were protected by the First Amendment. Justices Breyer and Kagan stopped short of recognizing a right to lie, but said in a separate opinion the government should have to show actual harm before criminally prosecuting liars. In dissent were justices Alito, Scalia and Thomas.
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.
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.
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?
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.”
That’s the trouble with the Stolen Valor Act. Lies about one’s military service are bad enough. But letting politicians — who so often seem veracity challenged to start with — define what lies shall be against the law seems to me a far greater threat to democracy than a sleazy imposter like Alvarez.
About The AuthorMarc Charisse is the editor of The Evening Sun. Dr. Charisse has a Ph.D. in First Amendment law and history, and has taught communication law and constitutional law at the University of Washington in Seattle and Jacksonville University in Jacksonville, Fla. Charisse can be reached at email@example.com.
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