In 2005, responding to various provocations, Congress wrote the Stolen Valor Act, which made it illegal to “to wear, buy, sell, barter, trade, or manufacture ‘any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces.’”
About 20 prosecutions have arisen from violations of the law, and inevitably one of them has wound up at the Supreme Court.
I think most of us in this community would agree instinctively that to falsely claim for oneself the honors that other men have died for is grotesquely immoral. But there are many things which are immoral in this country which are not illegal, and the general trend of the discussion within the media has been, “where does it all end?” If it’s illegal to falsely claim for oneself the Medal of Honor when one hadn’t even served in the military, wouldn’t it also be illegal to lie about one’s age on a dating website, or to lie to one’s spouse about rumpling the wrong set of bed sheets? First amendment protections of free speech are sacred – witness the repeatedly struck down attempts to ban flag burning, for one example - and while lying about military honors is offensive, the right to offend is deeply enshrined in our Constitution. Several news organizations – including the New York Times, whose article on the case of United States v. Alvarez is linked below – filed amicus briefs with SCOTUS defending the right of a liar to his lies.
Whatever else he may be, Alvarez is a serial liar. He claimed to have served in the Desert One fiasco, to have rescued an American ambassador, to have been wounded in combat, and awarded the Medal of Honor – all of which were gross falsehoods. Indeed, it would be hard to discover a better test case than his.
In hypothetical questions posed by the justices yesterday, some rays of light have been shone on instances in which Congress may indeed punish calculated lies:
Chief Justice John G. Roberts Jr. asked whether Congress could make it a crime to lie about having a high school diploma. Solicitor General Donald B. Verrilli Jr. responded that some states had indeed enacted laws concerning diplomas from public universities, and he indicated that they would be constitutional if they concerned calculated lies about verifiable facts that led to real harm.
Mr. Verrilli listed several laws that punish those kinds of falsehoods, including ones prohibiting false statements to federal officials and banning the impersonation of federal officers, as well as perjury.
Similarly, he said, the Stolen Valor Act punishes only knowing falsehoods that result in “the misappropriation of the government-conferred honor and esteem,” which he called “a real harm and a significant harm.”
The hardest hypothetical question for the justices seemed to concern state laws that make it a crime for politicians to lie in some settings. Mr. Verrilli said such laws might run afoul of the First Amendment because of their potential to chill truthful speech for fear of prosecution.
Justice Kagan asked a lawyer for Mr. Alvarez, Jonathan D. Libby, whether the Stolen Valor Act posed the same problem. “What truthful speech will this statute chill?” she asked.
Mr. Libby’s response seemed to surprise Justice Kagan. “It’s not that it may necessarily chill any truthful speech,” he said. “We certainly concede that one typically knows whether or not one has won a medal or not.”
Justice Kagan considered what she had just heard. “So, boy, I mean, that’s a big concession, Mr. Libby,” she said.
Mr. Libby also acknowledged that the government may punish false speech that is intended to obtain something of value. Chief Justice Roberts asked whether Mr. Alvarez, who was politically active, benefited from his lie. Mr. Libby said that was possible.
In summary, the justices questions lead to the following narrowly interpreted restrictions on protected speech: 1) That the lie is specific and calculated, 2) that it could cause real harm to federal equities, 3) that it is unlikely to chill truthful speech, and 4) the liar may personally benefit from his falsehoods.
It’ll be interesting to see where this winds up.