William Bennett Turner teaches a course on freedom of speech at the University of California, Berkeley. In a contribution to the Op-Ed Page of The New York Times yesterday (February 20), he defended the right of Xavier Alavez to tell tall tales about playing hockey for the Detroit Red Wings, being married to a Mexican starlet and rescuing the American ambassador during the Iranian hostage crisis.
Telling these untruths, W.B. Turner argues, was not a criminal offence.
Another of his falsehoods, however, did violate the law. In 2007, while introducing himself at a meeting of a California water board, he said that he was a retired Marine who had been awarded the Medal of Honor (both lies). He was quickly exposed as a phony and pilloried in the community and press as an “idiot” and the “ultimate slime.”
But his censure did not end there. The federal government prosecuted him under the Stolen Valor Act, which prohibits falsely claiming to have been awarded a military medal, with an enhanced penalty (up to a year in prison) for claiming to have received the Medal of Honor. Mr. Alvarez was convicted but appealed to the United States Court of Appeals for the Ninth Circuit, which held that the Act violated the First Amendment.
The government has taken the case to the Supreme Court, which is scheduled to hear arguments this week. The question before the court is not whether there is a constitutional “right” to lie. Rather, it’s a question about the scope of the government’s power over individuals – whether the government can criminalize saying untrue things about oneself even if there is no harm to any identifiable person, no intent to cheat anyone or gain unfair advantage, no receipt of anything of value and no interference with the administration of justice or any other compelling government interest.
W.B. Turner takes the position that the court should rule in favor of Mr. Alvarez. Harmless fibbing should not be a federal offence.
The Justice Department, however, argues that the Stolen Valor Act serves an important government interest: preserving the integrity and credibility of the military medals program. False claims, it maintains, dilute the reputation and meaning of the medals.
But, W.B. Turner contends, the government has offered no evidence that lies by crackpots like Mr. Alvarez have in any way damaged the honor or prestige of medal recipients. A few instances of dubious characters lying about medals does not require the government to deploy the heavy artillery of criminal sanction. The United States has had military medals since the Revolutionary War, but the founding fathers didn’t seem to think such legal protection was necessary, and neither did Congress until 2006, when it passed the Act.
Nor has the government shown that the law is necessary. Those who lie about being awarded medals could easily be exposed if the government maintained an online database of medal awardees; the government could even shame known liars by publicizing their names.
The Stolen Valor Act is also dangerously broad; it puts satire and parody at risk of criminal prosecution. The comedian Stephen Colbert could not safely perform a skit in which his blowhard patriot persona claimed to have a medal. The Act doesn’t require proof that anyone believed or was deceived by the false claim.
The recognized constitutional remedy for false speech, as Justice Louis D. Brandeis famously said, is not suppression but “more speech.”
W.B. Turner concludes:
The court should reject Congress’s attempt to police what we are allowed to say about ourselves.