Today the Supreme Court heard arguments for and against the Stolen Valor Act of 2006, under which falsely claiming to have received a military medal or decoration is a federal crime punishable by up to a year in jail. The case involves Xavier Alvarez, a minor politician in Southern California who invented a 25-year record of service in the U.S. Marines, capped by a Congressional Medal of Honor. Two years ago the U.S. Court of Appeals for the 9th Circuit agreed with Alvarez that prosecuting him for his lies violated the First Amendment. Much of today's debate revolved around the question of whether lies about purely factual matters have "First Amendment value," with Antonin Scalia stating that they do not (which is the government's position) and a few other justices seeming to agree. Assuming that is correct, the question becomes whether the Stolen Valor Act leaves enough "breathing space" for speech that does have value.
But since the Court is applying a constitutional provision that says "Congress shall make no law...abridging the freedom of speech," this approach seems backward. Shouldn't the question be whether the government has a compelling enough reason to overcome what sounds like a very strong presumption against punishing speech? At the very least, the First Amendment puts the burden of proof on the censors, who must justify their speech limits, rather than the speaker, who need not show that his words have value. (Alvarez's obviously had value to him, until he was exposed as a liar and subjected to nationwide ridicule and condemnation.) As Jonathan Libby, the federal public defender who urged the Court to uphold the 9th Circuit's ruling, put it, "Our founders believed that Congress as a general principle doesn't get to tell us what we as individuals can and cannot say." Of all the justices who spoke, Sonia Sotomayor came closest to the skeptical attitude that is appropriate when confronted by a new crime that involves saying things the government does not want you to say:
What harm are we protecting [against] here? I thought that the core of the First Amendment was to protect even...offensive speech. We have a legion of cases that said your emotional reaction to offensive speech is not enough. If that is the core of our First Amendment, what I hear, and that's what I think the court below said, is you 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. 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? 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.
I think Sotomayor is right that the Stolen Valor Act really is about punishing offensive speech. But even if it were true that "a war veteran thinks less of the medal that he or she receives because someone's claiming fraudulently that they got one," that is not the sort of injury that justifies legal sanctions. "Stolen valor" is, after all, a metaphor; Alvarez did not actually steal anyone's property.
According to Solicitor General Donald Verrilli, "one of the harms that justifies this statute is the misappropriation of the government-conferred honor and esteem," and "there is also the particularized harm of the erosion of the value of the military honors...conferred by our government....For the government to say this is a really big deal and then to stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers....That is the government's interest." An interest, maybe, but not one that justifies criminalizing speech. Notice that Verrilli never explains whose rights Alvarez violated or how he did so. If debasing the value of a military medal were a crime, you could be thrown in jail for saying the Congressional Medal of Honor is a mark of dishonor that represents the random murder of innocent people who have the misfortunate to live in countries ruled by dictators who piss off the U.S. government.
Whatever harm might result from the lack of a criminal penalty for lying about military medals, the country somehow survived it for 230 years. Maybe that's because mendacious blowhards like Alvarez tend to be punished by public humiliation. The more often they make their claims, the more widely publicized those claims are, and the more benefit they derive from them, the more likely they are to be exposed. Rather than "stand idly by," which Verrilli portrays as the only alternative, the government could help the process along by making lists of medal recipients readily accessible and calling out liars. If the government has the resources to investigate, try, and imprison these guys, it surely has the resources to say they're not on the list. And if a phony hero is never exposed, meaning actual medal recipients never hear about his false claims, where is the harm?