WASHINGTON -- The Supreme Court on Wednesday morning appeared divided over whether to strike down a federal law that makes it a crime for a person to lie about receiving military honors.
In 2007, Xavier Alvarez, an elected member of a Los Angeles-area water board, introduced himself at a public meeting as a retired Marine. "Back in 1987, I was awarded the Congressional Medal of Honor," he added for the record. Both statements were lies -- and the latter he would find out, when the FBI came looking for him, had recently been made a federal crime.
The Stolen Valor Act, passed by Congress in 2006, states that "whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ... shall be fined under this title, imprisoned not more than six months, or both." Alvarez would become the first person convicted under the act.
He appealed his conviction on the ground that the Stolen Valor Act violates the First Amendment protections for free speech. The U.S. Court of Appeals for the 9th Circuit in 2010 agreed, reversing the lower court and striking down the act. Since the Supreme Court consented to hear United States v. Alvarez this past fall, another appeals court has upheld the act, creating a split among the circuits.
Solicitor General Donald Verrilli, arguing on behalf of the Obama administration, told the justices on Wednesday that the 9th Circuit's fears of a society where any knowing falsehood could be criminalized were unfounded. The Stolen Valor Act prohibits only a "carefully limited and narrowly drawn category of calculated factual falsehoods" regarding military honors, Verrilli said at the start of his presentation.
Justice Sonia Sotomayor then wondered about a hypothetical Vietnam War protester who holds up a sign that reads, "I won a Purple Heart -- for killing babies." If the protester knew his statement to be false, Sotomayor asked, "Is that person, if he's not a veteran having received the medal, is he liable under this act?"
If a reasonable observer would see the sign as "political theater," Verrilli answered, then "it's not within the scope of the statute, and it wouldn't be subject to liability."
But, Verrilli continued, "this Court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no First Amendment value for its own sake."
"It has said it often, but always in context where it is well understood that speech can injure," responded Justice Anthony Kennedy, pointing to defamation and fraud actions. "I think it's a sweeping proposition to say that there's no value to falsity," he went on. "Falsity is a way in which we contrast what is false and what is true."
But Alvarez's lies and others implicated under the Stolen Valor Act do cause injury, Justice Antonin Scalia said. "[T]here's harm to those courageous men and women who receive the decorations," said Scalia. "Their service is demeaned when everybody says, 'I served in the armed forces.'"
Sotomayor disagreed. "[Y]ou 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," she said. "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?" she asked. "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."
Throughout Verrilli's presentation, Scalia seemed to be the lone unambiguous supporter of the Stolen Valor Act, going so far as to declare flatly, "I believe that there is no First Amendment value in falsehood." The justice's clear intent to uphold the act comes in some contrast to his votes in recent years to strike down, on First Amendment grounds, a federal ban on dogfighting videos, a California ban on the sale of violent video games and a jury verdict against funeral picketers. Scalia's son Matthew served with the U.S. Army in Iraq.
But whatever lead Alvarez had at the end of the solicitor general's argument disappeared when his lawyer, Jonathan Libby, took to the lectern. Chief Justice John Roberts, who had earlier pushed Verrilli on whether Congress could criminalize lying about obtaining a high school diploma, jumped all over Libby, a deputy federal public defender in California.
"What is the First Amendment value in a lie, pure lie?" asked Roberts.
The question, which came less than a minute into Libby's argument, seemed to knock him off balance. "Just a pure lie? There can be a number of values," he answered. "There is the value of personal autonomy."
"The value of what?" said Roberts.
"Personal autonomy," Libby repeated.
"What does that mean?" pressed the chief.
"Well, that we get to, we get to exaggerate and create ... ," Libby tried to answer.
"No, not exaggerate, lie," Roberts corrected him.
Libby offered up Samuel Clemens' use of the pen name Mark Twain as one such "persona" that is really just a lie about one's personal story and identity.
"Well, but that was for literary purposes," retorted Roberts.
Justice Samuel Alito was similarly incredulous, asking, "Do you really think that there is First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself because that person would like to create a particular persona?"
"Yes, Your Honor, so long as it doesn't cause imminent harm to another person or imminent harm to a government function," Libby said.
Some minutes later, Kennedy, who had seemed very much on Libby's side in the first half of the argument, appeared to fall off the bandwagon. "[I]t's a matter of common sense that it seems to me that [lying about receiving a military honor] demeans the medal," he said.
But it was Justice Elena Kagan who may have delivered the knockout blow to Libby, even if most of her questions leaned toward his case. "What truthful speech will this statute chill?" she asked.
"Your Honor, it's not that it may necessarily chill any truthful speech," Libby said. "We certainly concede that one typically knows whether or not one has won a medal or not."
"So, boy, I mean, that's a big concession, Mr. Libby," Kagan replied.
On rebuttal, the solicitor general made the most of that concession, but not before Kagan gave him a hard time, too. She asked if the government can criminalize deliberate falsehoods about extramarital affairs if the law is drawn narrowly and specifically enough. "The government has a strong interest in the sanctity of the family, the stability of the family, so we're going to prevent everybody from telling lies about their extramarital affairs," she hypothesized.
"That's a hard case," Verrilli admitted, before facing an additional flurry of questions from Sotomayor and Justice Stephen Breyer suggesting their belief that upholding the Stolen Valor Act would lead to laws that chilled speech clearly protected by the First Amendment.
To dispel that concern, Verrilli said, they need look no further than Libby's admission just moments earlier. The defendant's own lawyer, the solicitor general said, "conceded that this statute chills nothing."