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The U.S. Supreme Court hears arguments Wednesday in a case about lies, big and small, and when those lies can be a crime under the Constitution's guarantee of free speech. At issue is the constitutionality of a law making it a crime to lie about being the recipient of military medals.
At the center of the case is Xavier Alvarez, a man nobody disputes is a liar. He lied about being an ex-professional hockey player. He lied about being an engineer. He lied about rescuing the American ambassador during the Iranian hostage crisis. He even lied about being a retired Marine.
But none of those lies is a crime. Only one of his whoppers violated the law — the one he told about receiving the Medal of Honor.
"Back in 1987, I was awarded the Congressional Medal of Honor," he said in introducing himself at a municipal water board meeting in California, about seven months after he was elected to a neighboring board.
In fact, Alvarez had never earned any military medals. He had not even served in the military. Under federal law, making false claims about winning military medals is a crime punishable by up to a year in prison.
Actions Vs. Speech
For nearly a century, there have been laws that make it a crime to wear an unearned military medal. But the law making it a crime to simply lie about it is quite recent. Congress passed the statute, entitled the Stolen Valor Act, in 2006. The question in this case is whether that law violates the Constitution's guarantee to free speech.
A divided three-judge panel of the federal appeals court in San Francisco ruled that the law is unconstitutional. The court said that the statute does not fit within any of the exceptions that have been carved out to the First Amendment — speech that is defamatory, that defrauds, or that is obscene, for instance.
In concurring with a decision of the full appeals court not to rehear that ruling, 9th U.S. Circuit Court of Appeals Chief Judge Alex Kozinski said that to allow the government to punish false speech, without more, would be "terrifying."
"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," Kozinski wrote.
The dissent contended that factually false speech should be protected by the First Amendment only to the extent necessary to protect speech "that matters."
Obama Administration Backs Law
At the Supreme Court on Wednesday, the Obama administration, backed by various veterans groups, will argue that Congress was fully justified in making it a crime to lie about military medals.
The American Legion contends in a friend-of-the-court brief that Congress has determined that false medal claims are a particularly dangerous kind of lie that harms the military and harms veterans by "diluting the value of the honors."
But Jonathan Libby, the public defender representing Alvarez, will dispute that claim. "We've not seen any evidence to suggest that there's been any effect on recruitment or on service members doing their jobs," Libby says. "There's simply no evidence out there to suggest that there's any real problem along those lines."
While there may not be any evidence of harm to military morale, there is evidence that as long as there have been military medals, there have been significant numbers of people who lie about getting them.
The specter of false military medal claims was first raised by Gen. George Washington in 1782. "Should any who are not entitled to the honor, have the insolence to assume the badges of them, they shall be severely punished," he said. But Washington's statement applied to those in the military service, where speech is routinely limited under the aegis of military discipline.
A History Of False Claims
In the years after the Civil War, military medals became so popular that false claims of valor became commonplace. After World War I, the problem was bad enough that Congress passed a law barring the wearing, sale or manufacture of medals without proper authorization.
Still, people of all walks of life continued to make false medal claims. In 2008, the Chicago Tribune investigated every biography in "Who's Who" that listed a military medal. More than one-third of the 333 people claiming a medal had not received one. In recent years, those making false claims to military medals have included clergymen, doctors, CEOs, career military officers, university professors, judges and prominent officeholders.
The federal government contends that this proves the need for the law as a deterrent. But those challenging the law say that exposure serves the same purpose. They note that by the time Alvarez was prosecuted, he had already been exposed and pilloried in public. And they contend that the simplest and least dangerous solution to the problem is a readily accessible database that allows anyone to check the list of military medal winners with the click of a mouse.
At its core, though, this is a case that tests when government can place limits on speech.
"False statements of facts have never been held to be constitutionally protected," says Aaron Streett, who wrote the American Legion's brief in this case. "And this particular species of false statement of fact ... has traditionally been condemned throughout our nation's history with no suggestions that punishment for that false claim is unconstitutional."
In defending the Stolen Valor Act, the Obama administration points to other federal and state laws that could be undermined if the Supreme Court rules the Stolen Valor Act unconstitutional — laws that make it a crime to impersonate a policeman, or to make unsworn knowingly false statements to law enforcement, or laws banning deceptive use of a name in fundraising.
Limits Of Government Power
Lawyers for Alvarez reply that those laws are very different. They involve lying to defraud, to obstruct an investigation, to obtain something of value, or to harm.
In contrast, says Jonathan Libby, the Alvarez lawyer, the Stolen Valor Act allows the prosecution of a person who lies "in the privacy of his own home" about receiving a military medal.
At Wednesday's argument, the justices will almost certainly press the Obama administration to define the limits of government power to punish false factual statements. Could Congress make it a crime to make false statements denying the existence of the Holocaust? Could Congress, concerned about diverting the attention of a president, make it a crime to knowingly make false statements representing that the president is not a natural-born American citizen?
And what about knowing lies about military medals that are satire? Lawyer Libby notes that under the Stolen Valor Act, as written, Comedy Central's Stephen Colbert could be prosecuted for making false medal claims even as part of his TV shtick.
These are all questions posed in friend-of-the-court briefs filed in this case by major journalism organizations, including NPR.
The American Legion's Streett, however, contends that false medal claims in satire can be distinguished from other false medal claims, and that Holocaust or false birther claims are entirely different.
"Once you start criminalizing speech about historical or political topics, it threatens to chill speech that is clearly protected," he says.
As to Alvarez, the man whose false medal claims are the center of this case, he is currently in jail, not because he lied about military medals, but because he claimed his ex-wife on his health insurance, a lie that amounts to fraud.
That, plus his other lies, leads inevitably to one question: Is Alvarez just a nut case?
His lawyer pauses awkwardly when asked the question, and then acknowledges: "Certainly some of his colleagues have been quoted as saying that. When you first meet him and talk to him, it's pretty clear that you can't trust anything that comes out of his mouth."