Falsity and Nothing More

While most Americans were looking forward to what the United States Supreme Court had to say about the Affordable Health Care Act (ObamaCare), another significant case was handed down a few minutes earlier.  United States v. Alvarez didn’t receive as much attention, probably because everyone can relate to health care; not many can relate to a liar being punished for claiming he is something he is not.

Associate Justice Kennedy, in his opening statement of the case, wrote that “[l]ying was his habit.”  He was referring to Xavier Alvarez, who told a few whoppers in his life, like playing hockey for the Detroit Red Wings (not true), and marrying a starlet in Mexico (not true), but none quite like the stretch that he told a water board to which he was recently appointed.  Alvarez claimed that he was 25-year Marine, was wounded by the same guy more than once and that he “was awarded the Congressional Medal of Honor” in 1987.  That lie got him a federal charge of stealing valor.

Is lying protected by the First Amendment?  Well, yes and no.  In this case, Chief Justice Roberts agreed with Justices Kennedy, Ginsberg, Sotomayor, Breyer, and Kagan (Breyer & Kagan concurring in the judgment) that “prior decisions have not confronted a measure like the Stolen Valor Act, that targets falsity and nothing more.”

Yes, the Court has determined previously that there are times in which lying is a crime.  Take perjury, for instance.  But those other circumstances are not in the best interest of justice, are for pecuniary gain, or damage the reputation of a particular individual.   “Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. . . . Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”

The Court addressed the patriotic concerns, also.  It recognized the Medal of Honor as an award held “in its highest respect and esteem [to] those who, in the course of carrying out the ‘supreme and noble duty of contributing to the defense of the rights and honor of the nation’ have acted with extraordinary honor.”  But the Court properly noted that fundamental “constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.”  This acknowledgement is a concept that is lost on so many who believe that being patriotic means upholding the Constitution only when it’s convenient for the majority.

“The remedy for speech that is false is speech that is true.”  Not a law by the government prohibiting false speech.  “This is the ordinary course in a free society.  The response to the unreasoned is the rational; to the unin­formed, the enlightened; to the straight-out lie, the simple truth.”  “The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,”

The decision left a lot of thought for the intellect:  “Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth.  Truth needs neither handcuffs nor a badge for its vindication.”  We should be proud of our society and our republic.  We have the collective sense to understand that once the government that can punish you for lying about a matter such as being awarded the Medal of Honor; it can begin to punish politicians for not telling the “absolute” truth.  You may think that’s funny.  But seriously, our government is so huge that it is impossible for a single member of Congress to know everything, much less the President of the United States.  And on some occasions, the truth may be stretched as it comes from a lowly researcher up the ranks to the top advisors.  It’s happened – with all Presidents.

Kennedy closed the opinion with this powerful statement:  “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find re­spondent’s statements anything but contemptible, his right to make those statements is protected by the Consti­tution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.”