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Bennett L. Gershman

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Criminalizing Lies -- An Unusual Free Speech Case in Supreme Court

Posted: 02/15/2012 4:44 pm

People tell lies. Even politicians tell lies. And sometimes lies are punished; just ask Martha Stewart, "Scooter" Libby, and Bill Clinton. Lying involves speech, but the First Amendment's protection of speech provides no refuge for some lies, notably false statements to government, defamatory falsehoods, fraud, perjury, false advertising, baseless litigation, and false-light torts. There are other categories of speech that enjoy no First Amendment protection, such as obscenity, hate speech, and speech that is integral to criminal conduct such as conspiracy and threats, but these categories typically do not involve the criminalization of lies. And, needless to say, drawing lines between lawful lies and criminal lies is not easy.

A good example of the difficulty of line drawing is in the way some politicians lie about their military record. Given the enormous respect for the men and women in military service, it is hardly surprising that some politicians might want to exaggerate or lie about their military background. Accusations against George W. Bush for misstating his record in the Air Force National Guard, John Kerry for his alleged misleading claims of heroism in Vietnam, and Connecticut Governor Richard Blumenthal for lying about even serving in Vietnam may have damaged their public reputations, but their statements were not unlawful. But what if they claimed -- falsely -- that they were awarded military medals, honors, or decorations? Can such false statements be criminally punished?

That's the issue in next week's case in the U.S. Supreme Court. It raises an extremely difficult question about the meaning of the First Amendment's majestic language: "Congress shall make no law abridging the freedom of speech." In fact, however, Congress did make a law that abridges the freedom of speech. Congress in 2006 enacted the Stolen Valor Act, which makes it a crime for a person to falsely claim to have received a military award or honor.

Next week's case in the Supreme Court -- United States v. Alvarez -- is about a man -- an extremely weird man -- who won a seat on a California Water District Board of Directors after making claims that he was a retired marine of 25 years, a veteran helicopter pilot who was shot down in Vietnam, rescued the American Ambassador during the Iranian hostage crisis, and was shot in the back as he returned to the embassy to save the American flag. He also claimed that for his heroism he was awarded the Congressional Medal of Honor. All of his assertions were false, and he was indicted for violating the Stolen Valor Act for his lie about receiving the Medal of Honor.

Should the First Amendment protect Alvarez's lie? On the one hand, it is inevitable in a free society that people will make false statements, and the protection for speech should be sufficiently ample to ensure that the freedoms of expression, as the Supreme Court has observed, "have the breathing space that they need to survive." However, should such "breathing space" be afforded to speech that many of us would argue is valueless and not worthy of constitutional protection?

Congress passed the Stolen Valor Act to protect the reputation and meaning of military decorations and honors from false pretenders. Such false representations, according to Congress, dishonor the decorations themselves, and diminish the reputation of the select group of military heroes who have earned the nation's gratitude for their service. Moreover, Congress implicitly concluded that there is no constitutional value in false statements of fact, as opposed to false statements of ideas, and that false factual assertions interfere with the truth-seeking function of the marketplace of ideas.

Nevertheless, there are some lingering problems with upholding the Act. First, is there really an injury to the awards, and the people who earned them? False statements to the government, fraud statutes, impersonation statutes, and defamation laws typically involve a demonstrable harm, either to the proper functioning of government, or to someone's reputation. The harm from falsely representing oneself as a medal-winner seems much more remote. Moreover, how far does the Act extend? That is, could a person be prosecuted for satirical, theatrical, or hyperbolic statements? Could I be prosecuted if one of my students claimed to have beaten Roger Federer in tennis and I responded, "Yeah, and I won the Congressional Medal of Honor."

Finally, there is the problem, as we say in the law, of the so-called "slippery slope," that is, how far the government may go in proscribing speech solely because it is a lie. Could the government criminalize lying about one's height, weight, and financial status on match.com, or Facebook? Could the government make it a crime to lie to one's boss that he is out sick, when in truth he attended the N.Y. Giants Super Bowl victory parade? Could the government prohibit lying to one's children about the existence of Santa Claus?

Free speech jurisprudence is not a seamless web. There are fissures, inconsistencies, and aberrations. Despite the crystalline text of the First Amendment, Congress does make laws that abridge the freedom of speech. Whether those laws withstand constitutional challenge is, as always, up to the chair umpire, i.e., the Supreme Court.