The right to lie

Since I've considered the issue before writing - and thus am late to weigh in, you've probably already heard this news: "A federal judge in Denver has ruled that the Stolen Valor Act is "facially unconstitutional" because it violates free speech..."

Disclosure: I was the first person to publicly expose much of what's known about the background of the defendant in this case. That said, we're going to ignore the specific defendant in this discussion - but note there's no denying he had committed the crime with which he was charged. ("...falsely representing himself to have been awarded a Purple Heart on four different occasions in 2006 and 2009, and falsely representing that he had been awarded a Silver Star on one occasion in 2009.") Likewise, there's no denying that what he did was against the law. At issue is the question does the law (the Stolen Valor Act - SVA) that criminalizes those actions violate First Amendment protections? And it's not an issue on which we should allow our opinion of any individual accused to intrude.

I'll pause here for my own confession: I don't believe lying about having medals should have been criminalized. (Think "dude telling lies in a bar to impress girls" here.) Public humiliation, scorn, and other associated results of exposure seem like sufficient punishment to me. (And hey, gullible marks sometimes need to learn life's lessons the hard way...) However, I didn't feel strongly enough about that to register any objection to the bill when it passed in 2006. And I know that a significant number of my fellow vets disagree with me on that point, they feel genuinely aggrieved, so frankly I tend to yield to them. The SVA was passed (by unanimous consent in the Senate, and by voice vote in the House) with overwhelming support from veteran's groups, and signed into law by the President. I'm not the kind of person who needs a law to prevent me from claiming undue honors - I didn't do so before 2006 and still won't - but I have no problem with the existence of this law. (Though it's a law that - regardless of your thoughts or mine on the matter - was begging for a court challenge on First Amendment grounds.)

But when I first read Judge Robert Blackburn's decision granting the defense's motion to dismiss I found I wasn't in full agreement (or comfortable, even) with statements like this:

"The social approbation that attends those who would attempt to bask in the reflected glory of honors they have not earned demonstrates that the people of this nation continue to revere our brave military men and women regardless of - or perhaps even more so because of - false and vainglorious attempts to appropriate such accolades."

I have profound faith - a faith that appears to be questioned by the government here - that the reputation, honor, and dignity military decorations embody are not so tenuous or ephemeral as to be erased by the mere utterance of a false claim of entitlement.

If you didn't hear echoes of the voice of famed TV jurist Oliver Wendell Douglas (or the big screen's Eric "Otter" Stratton) when you read it then you're probably younger than me. However, that's an appeal to emotion, not to established law.

And no matter how old you are, you - like Judge Blackburn - would be hard-pressed to find direct precedent in this case.

The only other court that appears to have addressed the constitutionality of the Stolen Valor Act relied on a similar rationale in rejecting a defendant's First Amendment challenge to the statute. (See id. App, Exh. A (Order Denying Defendant's Motion To Dismiss, United States v. Alvarez, CR 07-1035(A)-RGK).)

Judge Blackburn didn't accept that decision, and was thus forced to turn to more tenuous and ephemeral precedents. (One of which - Stevens - even includes the quote "[u]ntruthful speech, commercial or otherwise, has never been protected for its own sake.") But we can indeed "see" the Alvarez decision here. Excerpt:

On July 23, 2007, Defendant Xavier Alvarez ("Alvarez" or "Defendant") falsely claimed to have received the Congressional Medal of Honor. Defendant made the statement while introducing himself to the Walnut Valley Water District Board as a newly elected director. According to a digital recording of the meeting, he stated, among other things: "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."

Mr Alvarez argued that his lie (" I was awarded the Congressional Medal of Honor") was protected political speech under the First Amendment. But in his case U.S. District Judge (Central California) R. Gary Klausner ruled:

Here, this Court is presented with a false statement of fact, made knowingly and intentionally by Defendant at a Municipal Water District Board meeting. The content of the speech itself does not portray a political message, nor does it deal with a matter of public debate. Rather, it appears to be merely a lie intended to impress others present at the meeting. Such lies are not protected by the Constitution.

Bold emphasis added. And there we have a simple truth, a statement of fact.

We do have something that could be called a limited "right to lie" now, as Judge Klausner acknowledged - by way of explaining why Alvarez doesn't merit that protection:

The statute is narrowly written to proscribe deliberate false statements concerning a very specific subject matter: the receipt of military decorations or medals. As such, the statute does not suppress legitimate political speech. Moreover, the statute does not risk chilling public discourse. Whether one actually received a military award is easily verifiable and not subject to multiple interpretations; thus, there is no danger that the statute will discourage truthful statements about military service or any other matters.

But Judge Blackburn, having acknowledged the earlier decision, dismisses it.

And here we arrive at another question - much broader than "is the Stolen Valor Act Constitutional?" or even "should lying be illegal?" We must now ask, "do Americans have a Constitutional right to lie?"

My answers to those three questions in order are yes, no, and no. But - pending appeal of both cases - we may soon all have the right to lie. (Others may not see it coming... I am not so sanguine.)

(The discussion continues here...)