So, on the way to oral argument this morning in U.S. v. Alvarez, I was kidnapped by a tribe of angry space aliens. They beamed me up to a ship where they forced me to perform exotic anaerobic dance routines to old Leif Garrett songs. Later, they beamed me back onto the Supreme Court Plaza, but not before stealing my Medal of Honor.*
The preceding statement was a parody. Or it wasn’t. It may or may not have been political. In any event, that last bit about the Medal of Honor could send me to jail for a year.
In 2007, Xavier Alvarez of Pomona, Calif., was elected to the board of the Three Valleys Water District. At a board meeting, Alvarez introduced himself by saying: “I’m a retired Marine 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. I’m still around.” Alvarez did not just lie about being a war hero; he lied about many things. His catalog of untruths include playing hockey for the Detroit Red Wings, marrying a Mexican starlet, and rescuing an American ambassador during the Iranian hostage crisis. Xavier Alvarez isn’t just a compulsive liar. He’s a ridiculously bad one. That’s why within days of his statement at the board meeting he was discovered by community newspapers, who decried him as a “jerk,” “cretinous,” and the “ultimate slime.”
The story would have ended there were it not for a 2006 congressional law called the Stolen Valor Act. This law makes it a misdemeanor to “falsely represent … verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” Conviction can result in a prison term of up to six months. Unless, of course, you lie about having received the Medal of Honor, which can send you to prison for a year. Charged with two counts of violating the act, Alvarez pleaded guilty, challenged the law on First Amendment grounds, and won at the 9th Circuit Court of Appeals, which found the Stolen Valor Act violated the First Amendment because “false factual speech” isn’t a distinct class of speech (unlike, say, defamation or perjury) that gets no constitutional protection. A few months later—after the Supreme Court agreed to hear that appeal—the 10th Circuit Court of Appeals upheld the law.
Most interesting to me is what judges think people lie about. So, for instance, amid the flurry of opinions written as the 9th Circuit tried to decide whether to review the Stolen Valor decision as a full court came this gem from Judge Alex Kozinski:
So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: 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. Phrases such as “I’m working late tonight, hunny [sic],” “I got stuck in traffic” and “I didn’t inhale” could all be made into crimes.
In so doing, Judge Kozinski launched a weird little judicial Rorschach test one might call Lies Federal Judges Worry About. Entries fly fast and furious this morning.
Solicitor General Donald B. Verrilli Jr. represents the U.S. government, and he has the unenviable task of persuading justices—who have, in recent years, protected vile animal crush videos, violent video games, and the contemptible Phelps family—that people who lie about military medals are worse than they are. He opens by explaining that “military honors play a vital role in inculcating and sustaining the core values of our nation’s armed forces” and that the Stolen Valor Act “regulates a carefully limited and narrowly drawn category of calculated factual falsehoods.”
Justice Anthony Kennedy is the first to speak up for false speech, telling Verrilli: “You think there’s no value to falsity. But … I think it’s a sweeping proposition to say that there’s no value to falsity.” He then adds—truthfully I suspect—that “[f]alsity is a way in which we contrast what is false and what is true.”
Meanwhile, Chief Justice John Roberts is worried about protecting other types of lies: “Well, where do you stop?” he asks Verrilli. “High school diploma? It is a crime to state that you have a high school diploma if you know that you don’t?” Verrilli says, “Some states do have laws respecting false claims to have received a diploma from a public university,” but Kennedy interrupts him to say, “But that’s fraud.” In this case, there is no clear harm to the victims and no clear benefit to the liars. Congress is trying to fix that very problem by amending the statute to punish only lying done “with intent to obtain anything of value.”
Justice Samuel Alito worries about people telling lies about other people, as opposed to themselves. “Suppose the statute also made it a crime to represent falsely that someone else was the recipient of a military medal?” But here, Justice Antonin Scalia proves himself an absolutist: “I believe that there is no First Amendment value in falsehood,” he announces. Absolutely.
Justice Ruth Bader Ginsburg then ponders whether “I deny that the Holocaust ever occurred” isn’t also a false statement of fact. And Justice Elena Kagan is worried about state statutes that “prohibit demonstrable falsehoods by political candidates.” Scalia notes in response that “even in the commercial context we allow a decent amount of lying, don’t we? It’s called puffing. … You won’t buy it cheaper anywhere else. … So maybe we allow a certain amount of puffing in political speech as well. …. Nobody believes all that stuff, right?”
Kennedy tells Verrilli that the government’s best argument is probably a trademark argument protecting military medals, noting that “we could carve out a narrow exception for that.” He says that he hates the idea that “the government is going to have a ministry of truth and then allow breathing space around it” but observes that, “on the other hand, I have to acknowledge that this does diminish the medal in many respects.”
Then, Justice Sonia Sotomayor ups the ante with a TMI—Too Much Information. “Outside of the emotional reaction, where’s the harm?” she asks. “And I’m not minimizing it. I too take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true.” Sotomayor’s suitors are lying to her? (Or merely puffing?)
Verrilli replies, saying, “The honor system is about identifying the attributes, the essence of what we want in our service men and women—courage, sacrifice, love of country, willingness to put your life on the line for your comrades. … And 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.”
And so, at the halftime, we have Kennedy worrying about the truth of falsity, the chief justice fretting about academic liars, Ginsburg anxious about Holocaust deniers, Kagan worrying about lying politicians, and Sotomayor panicked about the passel of deceptive bachelors she keeps meeting on eHarmony.
It falls to Jonathan Libby, the attorney representing Alvarez, to defend the congenital liar. As he begins to speak, the chief justice stops him with this epistemological stumper: “What is the First Amendment value in a pure lie?” Libby replies, “There is the value of personal autonomy.”
“The value of what?” asks Roberts.
“Personal autonomy,” Libby says.
“What does that mean?” retorts Roberts.
“Well, when we create our own persona, we’re often making up things about ourselves that we want people to think about us, and that can be valuable. Samuel Clemens creating Mark Twain.” Roberts says that this was for “literary purposes.” So Libby says, mysteriously, that “the fact that people tell lies allows us to appreciate truth better.”
Alito can’t take much more of this, asking, “Do you really think that there is a First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself, because that person would like to create a particular persona? Gee, I won the Medal of Honor. I was a Rhodes scholar, I won the Nobel Prize. …”
Justice Breyer: “Obvious example. Are there Jews hiding in the cellar? No.”
Chief Justice Roberts: “That’s not a statement about one’s self!”
Justice Breyer: “Are you hiding Jews in the cellar?”
Kennedy and Libby tussle over whether a statute that criminalizes the wearing of false medals also implicates speech. Then Kagan asks Libby what types of truthful speech the Stolen Valor Act might chill. (Libby: None, at which point he has conceded the main argument for his side.) Breyer asks if there are less restrictive ways for the government to protect the integrity of military medals and Libby can’t quite name them. Scalia suggests maybe “giving a Medal of Shame to those who have falsely claimed to have earned the Medal of Valor?”
By the time Verrilli stands to deliver his rebuttal, Justice Kennedy wants to know whether the government can criminalize lying about college degrees and Kagan wonders whether the government can prohibit lies about extramarital affairs. Sotomayor worries about men who lie about having college degrees in order to induce young women to date them. And by the end of the morning it looks like the court may just find a way to uphold a narrow version of the law by reading into the statute all the constitutional bells and whistles that aren’t in the text. Alvarez’s attorney shouldn’t have been able to lose a case about a law that makes lying about medals a crime. Not in a country where you can constitutionally protest military funerals and burn flags. But he may well have done it anyhow.
Seriously, though. I did win the Medal of Honor.
Disclosure: I am on the boards of both the Thomas Jefferson Center for the Protection of Free Expression and the Reporters Committee for Freedom of the Press, both of whom filed amicus briefs in this case on behalf of Alvarez.
Correction, Feb. 22. 2012: The article originally referred to the Congressional Medal of Honor. The award is issued by Congress but is referred to only as the Medal of Honor.