This week the U.S. Supreme Court agreed to hear a First Amendment challenge to the Stolen Valor Act, a 2006 law that makes it a misdemeanor to falsely claim one has received "any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces." The penalty includes up to six months in jail for most medals and up to a year for a Distinguished Service Cross, an Air Force Cross, a Navy cross, a silver star, or a Purple Heart. The Supreme Court case involves Xavier Alvarez, who as a freshly elected Southern California water district director introduced himself thusly at a 2007 public meeting:
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.
As a panel of the U.S. Court of Appeals for the 9th Circuit observed in a 2010 decision (PDF), "Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a marine or in the service of any other branch of the United States armed forces. In short, with the exception of 'I'm still around,' his self-introduction was nothing but a series of bizarre lies." The court nevertheless agreed with Alvarez that he has a First Amendment right to make shit up, at least when his lies do not fall into a traditionally proscribable category such as fraud or defamation (which require additional elements beyond knowing falsity). The majority said the Stolen Valor Act "concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie." If that standard were adopted, it warned, "there would be no constitutional bar to criminalizing lying about one's height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one's mother that one does not smoke [or] drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway."
Concurring with the full court's decision (PDF) not to rehear the case, Chief Judge Alex Kozinski likewise worried about the "terrifying" implications of upholding the law Alvarez violated:
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. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as "rational basis review."
In his Supreme Court petition, Solicitor General Donald B. Verrilli Jr. argued that Congress has the authority "to guard against dilution of the reputation and meaning of the medals" and that the law "serves a compelling interest in protecting the integrity of the military honors program, thereby preserving the medals' ability to foster morale and esprit de corps in the military." But he may regret that the Court agreed to hear the case. As New York Times legal reporter Adam Liptak notes, "The Supreme Court under Chief Justice John G. Roberts Jr. has generally been sympathetic to free speech claims, ruling in favor of protesters at military funerals, the makers of violent video games and the distributors of materials showing cruelty to animals."
By the way, do you notice anything conspicuously missing from that list? Although the ability to freely discuss politics is at least as important as the ability to sell Grand Theft Auto or dog fight videos, for some reason Liptak leaves out the landmark First Amendment case Citizens United v. FEC. I might ascribe that omission to his paper's bias in favor of campaign finance regulations, except that Liptak himself recognizes the free speech issues raised by such rules, citing Citizens United to illustrate the Roberts Court's "robustly libertarian view" of the First Amendment.