The freedom to lie

Our view: Telling a whopper about one's military service may be unethical, but it shouldn't be a crime

October 21, 2011

When is a lie that's so outrageous it strains credibility a form of protected speech under the First Amendment, and when is it a crime so egregious that it becomes punishable under federal law? This week U.S. Supreme Court announced it will decide the issue in the case of a man whose puffed-up claims about his military service turned out to be a total fabrication even as he claimed the Constitution protected his right to prevaricate.

In 2007, shortly after being elected to the board of the Three Valleys Municipal Water District in Claremont, Calif., Xavier Alvarez introduced himself to the public in words that were bound to impress: "I'm a retired Marine of 25 years," Mr. Alvarez said. "Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy." He also claimed to have rescued the American ambassador during the Iranian hostage crisis and to have played hockey for the Red Wings.

None of it was true — a fact Mr. Alvarez freely admitted after he was arrested by the FBI on charges of violating the Stolen Valor Act, a law that makes it a crime to lie about receiving a military honor. The act, which passed in Congress so overwhelmingly that neither chamber bothered with a roll call vote, prohibits any individual from falsely claiming he or she "has been awarded any decoration or medal authorized by Congress for the armed forces of the United States."

A federal district court accepted Mr. Alvarez's guilty plea and sentenced him to three years probation and a $5,000 fine. He paid but then appealed the case to a three-judge panel of the Ninth Circuit Court of Appeals in San Francisco, which overturned his conviction on the grounds that the law violated his First Amendment right to free speech and would set a dangerous precedent if allowed to stand.

"The sad fact is, most people lie about some aspects of their lives from time to time," wrote Judge Milan D. Smith Jr. in a 2-to-1 decision. If the government were allowed to punish lies that cause no direct harm, "there would be no constitutional bar to criminalizing lying about one's height, weight, age or financial status on or Facebook, or falsely represent to one's mother that one does no smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway," Judge Smith wrote.

The government argued that Congress has a legitimate interest in preventing people from diluting the reputation and meaning of the medals it awards by making false claims about receiving them, even if the misrepresentations do not rise to the level of fraud. "The law," argued Solicitor General Donald B. Verrilli Jr., "serves a compelling interest in protecting the integrity of the military honors program, thereby preserving the medals' ability to foster morale and esprit de corps in the military."

It's certainly low to lie about being wounded in combat. It would be similarly despicable to lie about, say, being a first responder on Sept. 11 or serving the poor alongside Mother Teresa. But Congress has not seen fit to make those things crimes, and if it were to start deciding which lies are merely pathetic and which illegal, it would find itself on a slippery slope indeed.

The Supreme Court, which in recent years has often viewed free speech claims sympathetically, will have to sort out the competing arguments, and we hope the justices will affirm the appeals court's view. Mr. Alvarez's whoppers certainly brought shame and dishonor on himself, and that's something the voters who elected him to office should know. But his lies did nothing to tarnish the esteem in which the Congressional Medal of Honor and other military awards are held.

On the other hand, allowing the government to act as the "truth police" for any statement citizens might make is a step toward the kind of police state Chief Judge Alex Kozinski of the Ninth Circuit Court warned against when he said it would be "terrifying" if the government could criminalize all "the white lies, exaggerations and deceptions that are an integral part of human intercourse." Lying may be unethical and often base. But making it a federal crime would be a mistake.

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