The Constitutionality of a Lie

This blog generally covers issues of intellectual property—one of the strengths of Garson, Segal, Steinmetz, Fladgate. But this week, we take a slight detour as the Supreme Court hears arguments in a really interesting question at the intersection of First Amendment and information law: Can Congress criminalize a lie?

In United States vs. Alvarez, the Court is considering the constitutionality of the Stolen Valor Act, 18 U.S.C. § 704(b), which makes it a federal crime to falsely represent that you have “been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item.”

The law, signed by President George W. Bush in 2005, was applied to a California man named Xavier Alvarez. Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. At a meeting of that Board, he introduced himself (according to the recitation of the Ninth Circuit) by stating: “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.” Needless to say, Alvarez has never been awarded any such medal, nor has he spent a single day in the United States armed forces. He was sentenced to three years of probation, ordered to do 416 hours of community service, and fined $5,000. He then appealed to the Ninth Circuit Court of Appeals on constitutional grounds, and won. The government has appealed the case to the Supreme Court.

Neither the government nor Alvarez disputes the falsity of his military claims. The respondent, in a well-crafted opening statement, described a series of bizarre lies made by Alvarez. He said that he was an engineer; that he rescued the American ambassador during the Iranian hostage crisis; that he was married to a Mexican movie star. “But none of those lies were crimes,” respondent asserts. The Act wrongly “criminalizes the simple act of lying about oneself… “Everyone lies. We lie all the time. Sometimes we lie to feel better about ourselves, sometimes to make others feel better about themselves, sometimes to help, sometimes to hurt. For good or bad, right or wrong, everyone lies.” Hard to argue with that.

While the Ninth Circuit agrees, the Tenth Circuit has upheld the Act’s constitutionality. That court considered the case of a man who had been accused of falsely claiming that he was a veteran of the Iraq war who had won a Purple Heart. The court noted that “Utterances criminalized by the Act are objective and verifiable, and they are particularly valueless under First Amendment principles.” Now it is up to the Supreme Court to resolve the conflict between the circuits.

On first blush, the Act perhaps seems reasonable: Why should we allow anybody to lie about military service and commendation, minimizing the sacrifice (or “valor”) of actual men and women in uniform? But on more careful review, one might begin to question the ability of the government to limit expression. When the government seeks to regulate the content of speech, that regulation is subject to strict scrutiny. For civil procedure junkies, that means that the court should presume the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy and must have narrowly tailored the law to achieve that interest.

So what is the appropriate remedy? How can someone who lies about military service and commendation be adequately punished? The appropriate “punisher,” many feel, is not the government but the surrounding community. According to his merit brief, Alvarez has essentially been shamed into oblivion by the local press, which has called him an “idiot” and “the ultimate scum.”

Deception and lying is a fascinating topic in law. Somewhat contrary to popular belief, free speech is not a limitless right in the United States. Just a few examples of this abridgement: We cannot yell “Fire!” in a crowded theater (which creates a “clear and present danger”. We cannot advertise cigarettes on broadcast television (which violates the Federal Communication Commission’s guidelines). And we cannot lie about features of a product we are trying to sell (which is common law fraud and may violate the Uniform Commercial Code). Consider also perjury, defamation or libel.

In those examples alone, we see that courts, Congress and federal agencies can limit freedom of expression. But note that in each of those situations, there is a clear “harm” that results from the speech. A customer is defrauded, or an impressionable teen is convinced to take up smoking, or a theater full of people trample one another on their way to the exit. Who is harmed by someone claiming to have won a military award? The legislative history indicates that Congress was concerned with the dignity of our most valiant troops. Certainly that dignity is important. But does a violation of that dignity constitute a legal harm worthy of further abridging a First Amendment right?

That’s the question the High Court will have to decide.

Brian Farkas