April 2012 Bar Bulletin
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April 2012 Bar Bulletin

High Court Considers Free Speech Value of Lies

By Nathaniel Strauss


At oral argument on February 22, the U.S. Supreme Court mulled whether a bald-faced lie is entitled to protection under the First Amendment.1 How about stating that you have a high school diploma when you know you don't, asked Chief Justice John G. Roberts.2 Or lying about yourself during a date, wondered Justice Sonia Sotomayor.3

How about lies by political candidates, Justice Elena Kagan asked.4 ("Nobody believes all that stuff, right?" quipped Justice Antonin Scalia.)5 How about, "I deny that the Holocaust ever occurred," asked Justice Ruth Bader Ginsburg.6 Or Justice Stephen Breyer's doozy: "Are there Jews hiding in the cellar? No."7

These were not the lies told by Xavier Alvarez, who sat on the board of directors of a local water district in Southern California.8 Rather, when he introduced himself at a meeting in 2007, he said, "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."9

The trouble was that Alvarez had never been awarded the Medal of Honor. In fact, he had never spent a single day in the armed forces.10 The Ninth Circuit later said that he apparently lied for no other reason than "to make people think he is a psycho from the mental ward with Rambo stories."11

Alvarez was indicted under a law passed in 2006, known as the Stolen Valor Act,12 that makes it a misdemeanor to falsely represent oneself as a recipient of a military award.13 He pleaded guilty on the condition that he could contest the law's constitutionality.14

The trial court denied Alvarez's motion to dismiss the indictment on constitutional grounds.15 But the Ninth Circuit reversed, saying that the law "concerns us because of its potential for setting a new precedent whereby the government may proscribe speech solely because it is a lie."16 The appellate court held that lies are in fact entitled to First Amendment protection and that the Stolen Valor Act was unconstitutional because it was not necessary to achieve the government's aim of honoring and motivating American soldiers.17

"We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths," Judge Milan D. Smith, Jr. wrote.18 "But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment."19

The government petitioned the Ninth Circuit to rehear the appeal en banc, but the court refused.20 In concurring with the opinion denying the rehearing, Chief Judge Alex Kozinski wrote:

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