Freedom of Speech Includes Some Kinds of Lies

In a decision that will upset some military men I know, the Supreme Court finds that it is constitutional to lie about yourself.

The case centered on Xavier Alvarez, a water-district board member in California, who was convicted of falsely claiming to be a Medal of Honor recipient. A federal appeals court threw out the conviction, finding that the First Amendment didn’t envision a “powerful government” policing everyone’s speech for “worthless, offensive, and demonstrable untruths.”

Congress passed The Stolen Valor Act in 2006 making false claims about military honors a crime, with an enhanced penalty if the Congressional Medal of Honor is involved.  The decision  says there is no specific harm to any individual if another lies about himself, or at least not in this case.  Xavier Alvarez has a habit of lying.   His lies are pathetic and not criminal.  Now there lies, damned lies and pathetic lies, but our government is not in the business of lie-detecting, except when it is.

Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment,it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

The response from Justice Alito includes this:

By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law . . . . Properly construed,this statute is limited in five significant respects. First, the Act applies to only a narrow category of false representations about objective facts that can almost always be proved or disproved with near certainty. Second, the Act concerns facts that are squarely within the speaker’s personal knowledge. Third, as the Government maintains, see Brief for United States 15?17, and both the plurality, see ante, at 7, and the concurrence, see ante, at 3 (BREYER, J., concurring in judgment), seemingly accept, a conviction under the Act requires proof beyond a reasonable doubt that the speaker actually knew that the representation was false.  Fourth, the Act applies only to statements that could reasonably be interpreted as communicating actual facts; it does not reach dramatic performances, satire, parody, hyperbole, or the like. Finally, the Act is strictly viewpoint neutral. The false statements proscribed by the Act are highly unlikely to be tied to any particular political or ideological message. In the rare cases where that is not so, the Act applies equally to all false statements, whether they tend to disparage or commend the Government, the military, or the system of military honors.

It is tempting to think that responses to the idea of lying about military service might depend on how you view the value of military service.   Were the lies of Xavier Alvaraez pathetic and easy to prove false?  Yes, absolutely.  It is a federal offense for anyone to wear, manufacture, or sell certain military decorations without authorization, because to do so would be a lie.  How is speaking that kind of lie really any different?  I’d suggest it is worse.  Especially in an era of volunteer service, (more Alito) “a steady stream of stories in the media about the exposure of imposters would tend to increase skepticism among members of the public about the entire awards system. This would only exacerbate the harm that the Stolen Valor Act is meant to prevent.”

If lying for commercial benefit is not protected speech, how is lying about military honor for personal benefit protected speech? “Respondent’s brief features a veritable paean to lying. According to respondent, his lie about the Medal of Honor was nothing out of the ordinary for 21st-century Americans. ‘Everyone lies,’ he says.”   And since when is lying something we do not wish to chill?  Especially in politics.