The Supreme Court justices spoke with disdain about liars who claim to have earned military honors, but they sounded less sure how to handle another group known for shading the truth: politicians.
"In the commercial context, we allow a decent amount of lying. It's called puffing. 'You won't buy it cheaper anywhere,' " said Justice Antonin Scalia. "So maybe we allow a certain amount of puffing in political speech as well. Nobody believes all that stuff, right?"
The exchange came midway through Wednesday's argument over whether the freedom of speech shields people who falsely claim military honors. The Stolen Valor Act in 2006 makes these lies a crime.
With the exception of Justice Sonia Sotomayor, none of the justices sounded as though they were convinced by a lawyer for Xavier Alvarez that the law should be struck down on 1st Amendment grounds.
The case arose when Alvarez, of Pomona, a member of a local water board, described himself at a meeting as an ex-Marine who had been awarded the Medal of Honor. Exposed as a flagrant liar, he was convicted for violating the Stolen Valor Act, but he won a ruling from the U.S. 9th Circuit Court of Appeals that declared the law unconstitutional.
On Wednesday, all the justices who spoke voiced concern about current or future laws that might allow prosecutors to go after politicians and others for lies and exaggerations about their accomplishments or foibles. They asked about everything from phony college degrees to extramarital affairs.
Justice Elena Kagan wondered about state laws that prohibited "demonstrable falsehoods" uttered during a political campaign. How, she asked, could such a law be upheld?
Not easily, replied U.S. Solicitor Gen. Donald Verrilli Jr. He said the law must allow a "breathing space" for political comments and assertions.
The Supreme Court has yet to hear a challenge to a state law that forbids false statements in political races, but the justices seemed to be pondering how to rule on such an issue.
Verrilli said the Stolen Valor Act was different from a law regulating politicians because it was narrow and targeted people who knowingly and wrongly claimed to have received an award for military valor. There is no reason for the 1st Amendment to shield lies of that sort, he said.
Chief Justice John G. Roberts Jr. appeared to agree. When Jonathan Libby, a public defender from Los Angeles, argued that the 1st Amendment did not allow for criminal laws against "pure speech" about military honors, the chief justice cut him off after three sentences.
"What is the 1st Amendment value of a lie, a pure lie?" Roberts asked.
Libby struggled for an answer, but said the law should not criminalize speech unless it "causes imminent harm to another person" or the government. He said laws against fraud and perjury were constitutional because those lies caused harm.
But most of the justices said they saw harm in allowing liars to claim military honors. "In my mind, there is a real harm.... It does hurt the medal if people falsely go around saying they have this medal when they don't," Justice Stephen G. Breyer said.
Justice Anthony M. Kennedy said it was "common sense" to say it "demeans" the military honors if charlatans can wear medals or claim to have earned the decorations.
The high court will rule in several months on U.S. vs. Alvarez.