In Stolen Valor Act Case, Supreme Court Debates When Lies Can Be Crimes

WASHINGTON -- The Supreme Court on Wednesday morning appeared divided over whether to strike down a federal law that makes it a crime for a person to lie about receiving military honors.

In 2007, Xavier Alvarez, an elected member of a Los Angeles-area water board, introduced himself at a public meeting as a retired Marine. "Back in 1987, I was awarded the Congressional Medal of Honor," he added for the record. Both statements were lies -- and the latter he would find out, when the FBI came looking for him, had recently been made a federal crime.

The Stolen Valor Act, passed by Congress in 2006, states that "whoever 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 ... shall be fined under this title, imprisoned not more than six months, or both." Alvarez would become the first person convicted under the act.

He appealed his conviction on the ground that the Stolen Valor Act violates the First Amendment protections for free speech. The U.S. Court of Appeals for the 9th Circuit in 2010 agreed, reversing the lower court and striking down the act. Since the Supreme Court consented to hear United States v. Alvarez this past fall, another appeals court has upheld the act, creating a split among the circuits.

Solicitor General Donald Verrilli, arguing on behalf of the Obama administration, told the justices on Wednesday that the 9th Circuit's fears of a society where any knowing falsehood could be criminalized were unfounded. The Stolen Valor Act prohibits only a "carefully limited and narrowly drawn category of calculated factual falsehoods" regarding military honors, Verrilli said at the start of his presentation.

Justice Sonia Sotomayor then wondered about a hypothetical Vietnam War protester who holds up a sign that reads, "I won a Purple Heart -- for killing babies." If the protester knew his statement to be false, Sotomayor asked, "Is that person, if he's not a veteran having received the medal, is he liable under this act?"

If a reasonable observer would see the sign as "political theater," Verrilli answered, then "it's not within the scope of the statute, and it wouldn't be subject to liability."

But, Verrilli continued, "this Court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no First Amendment value for its own sake."

"It has said it often, but always in context where it is well understood that speech can injure," responded Justice Anthony Kennedy, pointing to defamation and fraud actions. "I think it's a sweeping proposition to say that there's no value to falsity," he went on. "Falsity is a way in which we contrast what is false and what is true."

But Alvarez's lies and others implicated under the Stolen Valor Act do cause injury, Justice Antonin Scalia said. "[T]here's harm to those courageous men and women who receive the decorations," said Scalia. "Their service is demeaned when everybody says, 'I served in the armed forces.'"

Sotomayor disagreed. "[Y]ou can't really believe that a war veteran thinks less of the medal that he or she receives because someone's claiming fraudulently that they got one," she said. "They don't think less of the medal. We're reacting to the fact that we're offended by the thought that someone's claiming an honor they didn't receive."

"So outside of the emotional reaction, where's the harm?" she asked. "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."

Throughout Verrilli's presentation, Scalia seemed to be the lone unambiguous supporter of the Stolen Valor Act, going so far as to declare flatly, "I believe that there is no First Amendment value in falsehood." The justice's clear intent to uphold the act comes in some contrast to his votes in recent years to strike down, on First Amendment grounds, a federal ban on dogfighting videos, a California ban on the sale of violent video games and a jury verdict against funeral picketers. Scalia's son Matthew served with the U.S. Army in Iraq.

But whatever lead Alvarez had at the end of the solicitor general's argument disappeared when his lawyer, Jonathan Libby, took to the lectern. Chief Justice John Roberts, who had earlier pushed Verrilli on whether Congress could criminalize lying about obtaining a high school diploma, jumped all over Libby, a deputy federal public defender in California.

"What is the First Amendment value in a lie, pure lie?" asked Roberts.

The question, which came less than a minute into Libby's argument, seemed to knock him off balance. "Just a pure lie? There can be a number of values," he answered. "There is the value of personal autonomy."

"The value of what?" said Roberts.

"Personal autonomy," Libby repeated.

"What does that mean?" pressed the chief.

"Well, that we get to, we get to exaggerate and create ... ," Libby tried to answer.

"No, not exaggerate, lie," Roberts corrected him.

Libby offered up Samuel Clemens' use of the pen name Mark Twain as one such "persona" that is really just a lie about one's personal story and identity.

"Well, but that was for literary purposes," retorted Roberts.

Justice Samuel Alito was similarly incredulous, asking, "Do you really think that there is 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?"

"Yes, Your Honor, so long as it doesn't cause imminent harm to another person or imminent harm to a government function," Libby said.

Some minutes later, Kennedy, who had seemed very much on Libby's side in the first half of the argument, appeared to fall off the bandwagon. "[I]t's a matter of common sense that it seems to me that [lying about receiving a military honor] demeans the medal," he said.

But it was Justice Elena Kagan who may have delivered the knockout blow to Libby, even if most of her questions leaned toward his case. "What truthful speech will this statute chill?" she asked.

"Your Honor, it's not that it may necessarily chill any truthful speech," Libby said. "We certainly concede that one typically knows whether or not one has won a medal or not."

"So, boy, I mean, that's a big concession, Mr. Libby," Kagan replied.

On rebuttal, the solicitor general made the most of that concession, but not before Kagan gave him a hard time, too. She asked if the government can criminalize deliberate falsehoods about extramarital affairs if the law is drawn narrowly and specifically enough. "The government has a strong interest in the sanctity of the family, the stability of the family, so we're going to prevent everybody from telling lies about their extramarital affairs," she hypothesized.

"That's a hard case," Verrilli admitted, before facing an additional flurry of questions from Sotomayor and Justice Stephen Breyer suggesting their belief that upholding the Stolen Valor Act would lead to laws that chilled speech clearly protected by the First Amendment.

To dispel that concern, Verrilli said, they need look no further than Libby's admission just moments earlier. The defendant's own lawyer, the solicitor general said, "conceded that this statute chills nothing."

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Comments

[J A L]

28 minutes ago ( 5:41 AM)

Military decorations, particularly ones for valor or merit, are recognition for significant service, achievements, gallantry and heroism that are completely unique to military service. The ONLY reason to make false claims to have been awarded them is to accrue, through false pretense, the benefits and advantages that they bestow on their rightful recipients. The more significant ones, starting at about Commendation Medal and higher, are not handed out willy-nilly and, as one progresses upward from that level, they require increasingly significant effort by increasingly very senior officers to award.
The vast majority of service members will receive various medals and ribbons for honorably fulfilling their obligations and participating in significant operations, but most of them will not receive the ones about which I write. Starting at about Commendation Medals, they are more than just doing a good, or even excellent fulfillment of obligations. They are about merit, valor and gallantry that goes beyond obligation or even excellence into increasing realms of outstanding dedication, difficult and arduous focus to mission and truly selfless acts for or on behalf of others.
Commendation Medals and higher recognize traits about those who receive them that are great predictors of recipients' future dedication and selflessness to their future endeavors. Those who falsely claim to be recipients do two things, First, they have a character that palpably besmirches the reputations of everyone else who rightfully receives them. Second, they plunder, through false pretense, tangibles and intangibles from everyone on whom they foist their pretense.

[3BRANCHVETERAN]

02:13 AM on 02/24/2012

“The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional to how they perceive veterans of early wars were treated and appreciated by our nation.”
― George Washington
Our Freedom of Speech is Protected, and was Earned, by the Blood of Our Military... Stealing from Veterans Destroys Our Nation.

[Lfwagh]

09:35 PM on 02/23/2012

How is lying about ones military service and military medals protected under the First Amendment? Does this mean that in the future when a criminal is pretending to be a police officer to commit a crime he/she will not be charged because he/she is only exercising their First Amendment Right? Or what about con people and grifters? Will they no longer be held criminally responsible because they lied and therefore are protected by the First Amendment?

I guess Bernie Madoff should start packing his bags because if the Supreme Court decides tha lying is protected under the First Amendment he will no longer be responsible for the fraud he carried out. After all, he was only exercising his First Amendment right.

[Hrover]

02:23 PM on 02/23/2012

There goes the Internet, FOX news and the republican, party if they can't lie.

[stevnjessie1]

10:16 AM on 02/23/2012

Will it tone down those who never served, but go out of their way to inform you that they're more patriotic than you?

[somewhatodd]

08:38 AM on 02/23/2012

we better let lying stay legal.

we simply don't don't have enough prison beds for even the libertarians, much less the republicans.

[carljr]

06:30 AM on 02/23/2012

Gee, probably needs to be overturned. Whatever would the Republican Party do if this standard was applied to their political rhetoric?

[theveggiedude]

03:32 AM on 02/23/2012

If you can lie about WMD's to take a nation to war then this is trivial.

[Jo Hargis]

03:21 AM on 02/23/2012

Wow, what a no brainer. Just sign the damn thing, SCOTUS, and get on to the other issues you have before you, which are far more important.

[Sheldon archer]

01:08 AM on 02/23/2012

If lies were crimes, all the Republican contenders would be in prison.

[Hrover]

02:24 PM on 02/23/2012

Amen.....

[Barry Larkin]

12:05 AM on 02/23/2012

Why limit it to misrepresenting military honors. It should be a felony to lie, or misrepresent ones qualifications. Oh wait if this were law, most politicians would be in jail, mmmmmm!

[waujvari1274]

06:49 AM on 02/23/2012

I would change the "most" into "all". But, I was thinking the same thing.

[infinitivesplit]

11:40 PM on 02/22/2012

Obnoxious as all get out - but then so are all kinds of other things that people say all the time. Doesn't rise to the level of a reason to restrict freedom of speech.

[CoconutHead79]

11:26 PM on 02/22/2012

It is already illegal to impersonate servicemembers, police, lawyers, doctors etc. lying to receive products, services, and prestige afforded to our country's heroes is fraud. He lied to defraud the voting public. It should be illegal. You can be arrested if you lie on a scholarship application, because it is fraud.

[eschew obfuscation]

11:06 PM on 02/22/2012

Fortunately there are web sites that expose some of the more egregious examples of juvenile fake poseurs fraudulently representing their military, and especially combat service (authentiseals, pownetwork.org, etc.). As a US Army Vietnam veteran I was astounded to read the 1998 book Stolen Valor that exposed some of the ridiculous stories being passed off by fake wannabes claiming heroic combat service, especially with some of the more elite special operations units like Seals, Special Forces, Rangers and MACV-SOG. Of course an uninformed and trusting general public would take these tall tales at face value. Unfortunately, when exposed to the TRUTH from REAL combat veterans, most people are reluctant to doubt the stories they've heard from the phonies and frauds they've come to trust as "real war veterans". It's a shame, but there doesn't seem to be any suitable public policy solution to the phenomenon of bu!!sh!tt!ng. Exposing these dopes to public shame and ridicule for what they are is probably the most effective way of dealing with them.

[notabluedog]

12:29 PM on 02/23/2012

Exactly,
but we as a free society CAN NOT criminalize Lying!
Free speech protects speech we don't agree with. Not just the stuff we do agree with.

[Doug Sandlin]

07:44 PM on 02/23/2012

Agreed.

However, there are laws which do criminalize certain types of lying (defamation, libel, slander, perjury, etc.).

Those crimes are based on the fact that direct harm results from the given lie.

The government is trying to saying that direct harm results from people lying about having received certain military honors (in the sense that the honor / status of military medals is demeaned if people can just freely lie about having one or more such medals / honors).

To me, that sounds a bit similar to the idea that college degrees are "demeaned" by the people who lie about having them .... which, personally, I don't agree with (is it unethical to do that? Of course. Should it be a crime? I don't see the justification for that).

And so, "I dunno".

Harmless lies are legal.

But .... is lying about receipt of the Congressional Medal of Honor a harmless lie?

Again: personally, I'm not sure.

The fact that this situation does *not* have an immediately clear answer for a lot of people is why the case is being decided by the Supreme Court.

[eschew obfuscation]

10:45 PM on 02/22/2012

Military awards for "meritorious service" have been nothing but a joke since the Vietnam war. All those 11 Bravo grunts awarded the ARCOM, especially with the "V" device in Vietnam for combat valor, got a huge spit wad in the eye when a lowly enlistee truck driver in Desert Storm "earned" a Bronze Star for getting lost in a sand storm, wrecking her vehicle, passing out, and getting captured by the enemy. The Army awards system is a huge farce and a slap in the face to the thousands of soldiers who rightfully earned accolades in armed combat but were passed over by chair-borne pentagon bureaucrats hoping to garner some additional prestige for the Army by fraudulently celebrating the likes of the actions of a PFC who ended up endangering the lives of the soldiers who were ordered to come to her rescue. This sort of cheesy political crap cheapens the value of the Bronze Star I rightfully earned in combat against the Viet Cong and NVA during my tour in Vietnam in 1969.

[MANOFCOMMONSENSE]

06:44 AM on 02/23/2012

Thank Bush on that one.................(Bronze Star for getting lost in a sand storm, wrecking her vehicle) Trying to prop the war...

[waujvari1274]

06:56 AM on 02/23/2012

I agree 100%. When I was in the Navy, about 8 years ago, I was at an awards ceremony where our CO was presenting various awards to sailors that "earned" them at either the command we were at or a previous one. I saw a Navy Commendation Medal presented to a SEAL for service in combat operations in Iraq. I don't remember the exact citation but he was involved in numerous ops and his life was on the line many times. I kept thinking to myself, only a Comm? Right next to him, another sailor received the exact same medal for being a work center supervisor at a medical facility in San Diego. Seriously?? You're right, they are a joke. These medals are purely political or hormone driven. I have seen many sailors get nothing to watch someone else get something that they didn't rightly deserve. I include myself in that comment as well. I received an achievement medal for something 13 guys that worked for me did. You damn skippy they got the same thing too. I still didn't wear it though. You are right though; its ridiculous now.

[J A L]

1 hour ago ( 5:04 AM)

Commendation medals are awarded for Valor, Meritorious Service or Meritorious Achievement. Awards for valor are NOT the same as awards for merit. For merit, they are awarded for either a meritorious achievement or a continuous meritorious service that significantly exceeds expectations for their rank, rating and position. For merit, the next level up is the Meritorious Service Medal which is to merit what the Bronze Star is to valor. Commendation Medal awards for valor are NOT the same as awards for merit. Valor awards are noted with a V device that is significant if you see it on a Commendation Medal. The next level up in the valor category is the Bronze Star, which has a pretty high valor requirement and requires, among other things, significant imminent risk of death in the valorous act(s) for which it is awarded. Your SEAL may have received the Commendation Medal for either merit or valor. Don't minimize the level of ongoing, continuous devotion to serving well beyond duty, rank and rating that a Commendation Medal is supposed to be used to recognize. BTW, did you ever stop to think that a significant part of the reason 13 sailors who worked for you achieved what they did came from your supervision? Outstanding supervision is a rare commodity and you are a fool if you discount its lasting contributions to mission achievements.