The right to lie through your teeth (even losers have rights)

I know the Earth spun off its axis this morning when Chief Justice Roberts announced his surprising swing vote with the liberals on the constitutionality of mandatory health insurance. But lost in the shuffle was another decision from the Court on Thursday: the right to lie about your non-existent military record. The word on the street these days is that, when it comes to free speech, anything goes. That's certainly true at the Supreme Court.

The case is United States v. Alvarez, decided on June 28. The "Stolen Valor Act" says you cannot lie about having received military medals. That's what Alvarez did. Writing for the Court, Justice Kennedy thinks Alvarez is a loser. This is what Kennedy writes:

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. ... In 2007, respondent attended his first public meeting as a board member of the Three Valley Water District Board.The board is a governmental entity with headquarters in Claremont, California. He introduced himself as follows: “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.” None of this was true. For all the record shows, respondent’s statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.

Justice Kennedy does not normally use this kind of colorful language. But whatever he thinks of Alvarez, this guy cannot be prosecuted under the law. Free speech means you can lie about things like this so long as you are not trying to gain any governmental benefits from the untruths. There are many ways the government can restrict speech, but for the most part it cannot do so on the basis of content. That means that while the government can stop you from inciting to riot or defaming someone or agreeing to commit a crime, it cannot otherwise pick and choose what people can say. That's why you can burn the flag or protest at a military funeral. It's also the reason the Supreme Court in Citizen's United lifted all restrictions on corporation campaign expenditures, which also qualify as speech.

The Stolen Valor act restricts speech on the basis of content in that the government disapproves of bullshit artists like Alvarez. It's easy to see how a law like this got passed. It was 2005 and patriotic fervor was running strong as solders were fighting in Iraq and Afghanistan and the embers of 9/11 were still smoldering. That fervor is still there. Just watch the seventh inning stretch on TV at Yankee Stadium.  

While this may have been a popular law, it fails. Justice Kennedy is actually one of the more pro-speech Justices on the Court. He recognizes what Congress was trying to do when it passed the Stolen Valor Act. But he's not buying it:

The Government defends the statute as necessary to preserve the integrity and purpose of the Medal, an integrity and purpose it contends are compromised and frustrated by the false statements the statute prohibits. It argues that false statements “have no First Amendment value in themselves,” and thus “are protected only to the extent needed to avoid chilling fully protected speech.” Brief for United States 18, 20. Although the statute covers respondent’s speech, the Government argues that it leaves breathing room for protected speech, for example speech which might criticize the idea of the Medal or the importance of the military. The Government’s arguments cannot suffice to save the statute.

You need a compelling reason to restrict speech on the basis of content. The government says it has a compelling interest in preserving the integrity of military medals. But the government has not shown that the law is necessary to achieve any legitimate governmental interest. "The Government points to no evidence to support its claim that the public’s general perception of military awards is diluted by false claims such as those made by Alvarez. ... As one of the Government’s amici notes 'there is nothing that charlatans
such as Xavier Alvarez can do to stain [the Medalwinners’] honor.' Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 1. This general proposition is sound, even if true holders of the Medal might experience anger and frustration." In addition, the Court says, the way to counter falsehoods is through more speech. Kennedy writes, "The facts of this case indicate that the dynamics of free speech, of counter speech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements 'Alvarez was perceived as a phony.' Once the lie was made public, he was ridiculed online."

More broadly, there is no line of cases generally allowing the government to restrict false statements. Rather, falsehoods are inevitable in a world that values open speech. Justice Kennedy concludes, "The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more." He adds, "Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003)." And:

Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.