Supreme Court debate: Is lying about being a war hero protected speech?

Members of the US Supreme Court grappled on Wednesday with the difficult task of deciding whether the First Amendment protects a free speech right to claim to be a decorated war hero – even if you aren’t one.

The high court is being asked to determine the constitutionality of the Stolen Valor Act of 2005, which makes it a federal crime to falsely claim to have received a military medal.

During an hour-long argument, the justices weighed competing claims upholding the necessity of the statute against the dangers to free speech of a government willing to punish its citizens for something that is merely said.

Several justices seemed troubled by the prospect of opening a door to future laws that might ban false speech concerning one’s receipt of a high school diploma or off-the-cuff comments made by a candidate in an election campaign.

Others appeared ready to uphold the statute as a reasonable regulation of a particularly egregious kind of lie undeserving of constitutional protection.

“I believe there is no First Amendment value in falsehood,” Justice Antonin Scalia declared, flatly.

Chief Justice John Roberts and Justice Samuel Alito expressed similar sentiments.

When Jonathan Libby, a deputy public defender from Los Angeles, struggled to answer repeated questions about the constitutional value of a lie, Justice Stephen Breyer broke into the discussion with an example of a situation justifying a deliberate falsehood that would be both honorable and constitutionally-protected: “Are you hiding Jews in the cellar?”

Chief Justice Roberts brushed the comment aside. The statute regulates a “purely false statement about one’s self.” he said. “What is the first Amendment value in [allowing such lies]?”

“Our Founders believed that Congress as a general principle doesn’t get to tell us what we as individuals can and cannot say,” Mr. Libby replied. In other areas where the high court has long allowed regulation of speech, it involved speech that caused specific harm to others such as libel, obscenity, or incitement, Libby said.

The case, US v. Alvarez (11-210), stems from comments made by Xavier Alvarez, the elected member of a local water district board in southern California. In July 2007, Mr. Alvarez introduced himself during a meeting as a retired US Marine who had served for 25 years and won the Medal of Honor in 1987.

None of it was true.

Alvarez was charged with violating the Stolen Valor Act. He faced up to six months in prison.

After an FBI investigation, Alvarez entered a conditional guilty plea. His lawyer, Mr. Libby, continued to fight the charge, arguing that the underlying statute, the Stolen Valor Act, violated Alvarez’s free speech rights.

Prosecutors defended the law as a narrowly focused regulation of a discrete category of speech that served the important government interest of preventing the dilution of the value of military medals.

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