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Lying is Constitutionally Protected (Sort of).

I just hate to see First Amendment cases lost in the shuffle. And since the opinion for his case was released only hours before the Healthcare Decision, poor Xavier Alvarez is in a room full of crickets. But it’s an important case that should not be ignored.

Alvarez, or more commonly known as the Stolen Valor case (U.S. v. Alvarez, 567 U.S.____, (2012)), answers the question of whether it is acceptable to lie about receiving military decorations- in this case the Medal of Honor. The Stolen Valor Act (18 U.S.C. §§704) was passed in 2005 and makes it a criminal offense to lie about being the recipient of military decorations. It provides an enhanced penalty for making false claims about the Medal of Honor. In 2007, Mr. Alvarez, a newly elected board member of the Three Valley Water District wanted to make a splash at his first meeting, so he introduced himself like this:

“I am a retired marine (sic) of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy”.

Mr. Alvarez made a splash all right, but not until later when it was discovered that none of his statements were true. I’ve never seen a Supreme Court opinion calling a party a jackass, but this one comes close. This case is another example of how it can be difficult to separate our visceral reactions to speech we hate and speak only in terms of what the First Amendment protects and what it does not. The Supreme Court was faced with a tough decision here, and it made the right call. Now losers like Alvarez can spout complete bullshit and remain unscathed-legally speaking, that is.

The Court found that the Act was a content-based restriction and appeared to apply some sort of intermediate scrutiny. They agreed that the government has an interest in protecting the integrity of military honors, but did not find that the statute as written furthered that interest. This is because, while there are instances where a content-based restriction will be upheld, false statements in general do not fall into any of the enumerated exceptions for restrictions against lying (such as perjury, lying to a government official, or falsely representing oneself as a government official). What is interesting is that the Court did not focus solely on the fact that the statement was false, noting that “the falsity of the speech was not irrelevant to [their] analysis, but was not determinative” either.

It is important to note that the Court did not take issue with the general concept of the Stolen Valor Act. The government’s position was that the public’s perception of military awards is diluted when there are false claims about them and the actual recipients of those awards are harmed. The Justices all agreed that protecting the integrity of military honors is a legitimate government objective and even called it compelling at one point. But the analysis doesn’t stop at the government’s interest- the restriction must be actually necessary to achieve that interest. The Court found the wording of the statute sought to control and suppress all false statements, regardless of time or setting, which was far too overreaching. Anger and frustration at people like Alvarez are not enough to justify the broad sweeping language of the statute. The government simply could not show a direct causal link between the restriction and the injury to be prevented in this case. But the Court did go on to note that a statute that was drafted to proscribe false statements made to perpetuate some sort of fraud or to reap some sort of financial gain would be well within the government’s power to restrict. Here, however, Mr. Alvarez lied at a public meeting to fulfill his ego, not to get some sort of tangible reward, so his speech is protected.

Mr. Alvarez was drawn and quartered in the court of public opinion, and it is clear that the Court derived a little bit of joy from that. The government’s position was that the counter speech in this case was not enough to prevent the harm suffered and wanted something more- to prevent the speech in the first place. The Court disagreed and relied on the concept that the proper response to stupid speech (even lies) is more speech, not less. To paraphrase, the best way to ferret out a lie is to speak the truth, not stifle the lie. In order to permit the Act’s restriction, the government would have had to actually show that the public’s perception of the military and its awards were diminished. They could not do this. The VFW’s amicus brief noted that “there is nothing that charlatans such as Xavier Alvarez can do to stain the [medal winner’s] honor”, and the court agreed with this sentiment.

Justice Kennedy writes, “Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.” But the Court did not suggest that there could never be a case where lying about military awards could be proscribed by statute. And Justices Breyer and Kagan, in their concurrence, flat out tell us so. What this suggests to me is that in the future there could be a scenario where a new content-based exception is carved out of the First Amendment. Let’s hope the government finds something better to do with its time in the interim.

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