Lying and the 1st Amendment

Someone who boasts of a military honor he didn’t receive is contemptible, but is he a criminal? Congress thought so when it enacted the Stolen Valor Act, which provided for fines or prison time for anyone who “falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” But the U.S. 9th Circuit Court of Appeals has taken the wiser view, concluding that such misrepresentation, however offensive, is protected by the 1st Amendment.

Refusing to disturb a previous decision by a three-judge panel, the appeals court essentially upheld the dismissal of charges against Xavier Alvarez. In 2007, as a new board member of the Three Valleys Municipal Water District in Claremont, Alvarez introduced himself this way: “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.” The only truthful statement was “I’m still around.”

It wasn’t the only time Alvarez had traded in lies. According to an earlier decision in his case, he claimed to have rescued the U.S. ambassador during the Iranian hostage crisis (the reason for his fictitious Medal of Honor) and to have played hockey for the Detroit Red Wings. If Congress could punish misstatements about a military decoration, there would be no constitutional obstacle to criminalizing those other lies.

Chief Judge Alex Kozinski made the point more pithily: “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,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes.”

It was that precise question — whether false statements are protected by the 1st Amendment — that divided the 9th Circuit. Judges in the majority and minority traded citations from Supreme Court cases, but the majority established that the court has recognized significant protection for some false speech. Judge Milan D. Smith Jr., a member of the majority, quoted a famous libel decision in which the court wrote that the “erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.”

Nothing in this decision undermines laws against fraud. Misrepresentation for financial gain is not protected speech any more than a deceptive advertisement is. But when the purpose of a lie is ego gratification, the proper response is scorn, not a jail sentence.