WASHINGTON - Do Americans have a constitutional right to lie? Can the government punish people for lying about having earned military awards? And if the government can, does that violate a person's First Amendment right to freedom of speech?
These were the questions the Supreme Court considered in oral arguments Wednesday. At issue was the constitutionality of the Stolen Valor Act of 2005. The law makes it a crime to knowingly make false statements about having earned a military medal.
The case came about because of statements Xavier Alvarez made in a 2007 meeting of the Board of Directors of the Three Valleys Water District outside of Los Angeles. Alvarez, a commission member, claimed to have been a U.S. Marine for 25 years and to have been awarded the Medal of Honor, the nation’s highest military honor.
Several justices were concerned about the implications of allowing the law to stand.
"Well, where do you stop?" Chief Justice John G. Roberts. Jr. asked. "I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have a high school diploma if you know that you don't."
Alvarez's statements drew swift criticism and were forwarded to the FBI. Alvarez was charged under the Stolen Valor Act and pleaded guilty, on the condition that he be allowed to appeal the constitutionality of the law.
While the First Amendment is broad in its protection of speech, the issue becomes more complicated when the speech is knowingly false. The government’s case is based on the tradition of cases that have afforded false speech less protection.
"Our position is based on the precise language of cases stretching back a half a century," Solicitor General Donald Verrilli Jr. said.
The cases Verrilli was referring to involved issues of fraud, defamation and intentional infliction of emotional distress. Those actions involve a specific harm that arises immediately from the false statements and thus are granted less protection under the First Amendment.
The government's position, backed by briefs from veterans groups, medal societies and conservative legal scholars, is that there is a compelling interest in protecting the integrity of military honors.
"For the government to say this is a really big deal and then to stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers. It does do that. That is the government's interest," Verrilli said.
Alvarez’s attorney, Jonathan Libby, said the government’s attempts to regulate the act of telling the lie itself had to be subject to strict scrutiny, the toughest test of laws facing constitutional challenges. Libby was supported by briefs from free speech groups such as the ACLU, media organizations and liberal legal scholars.
But Libby ran into trouble when the justices asked him what would happen to laws such as perjury, fraud and lying to a government official during an investigation if strict scrutiny were applied to false statements.
"I mean, it seems to me you're proposing a test that would invalidate all of the laws on the books regarding false statements," Justice Elena Kagan said.
Verrilli was also quick to point out that the law was as narrowly tailored as possible to prevent it from chilling legitimate speech. Verrilli and the government scored a potentially crucial victory when Libby was forced to admit that the Stolen Valor Act did not chill any legitimate speech.
Justice Anthony Kennedy is the only sitting justice who served in the military, according to the justices’ biographies on the Supreme Court website. He was in the California National Guard in the 1960s.
The court is expected to deliver its ruling before the end of June.
Reach reporter Frank Bumb at email@example.com or 202-326-9871. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire.