The Truth Police: The Supreme Court Takes Up Stolen Valor

Below is today’s column in The Los Angeles Times on the Supreme Court granting certiorari in the Alvarez case and the constitutionality of the Stolen Valor Act. I have long been a critic of the Stolen Valor Act and supported the decision of the Ninth Circuit to strike down the law. Civil libertarians have good reason to worry.

Undo the Stolen Valor Act to Protect Free Speech

Soon after he was elected to the board of the Three Valleys Municipal Water District in Claremont, Xavier Alvarez introduced himself at a public meeting with a lie. “I’m a retired Marine of 25 years,” he said. “Back in 1987, I was awarded the Congressional Medal of Honor.”

That was not Alvarez’s first falsehood about himself. He’d also claimed to have played professional hockey and to have been involved in the Iranian hostage crisis. But it was the Medal of Honor lie that put Alvarez in violation of the Stolen Valor Act of 2005, a law passed by Congress and signed into law by George W. Bush that prohibits anyone from falsely claiming “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”

Alvarez’s “semper fraud” led to a conviction, which was later thrown out by the Ninth Circuit in San Francisco. The court rightly found that the Stolen Valor Act was an unconstitutional restriction of free speech. Now, ominously, the U.S. Supreme Court has agreed to review that decision.

We have always had fraud laws making it illegal to claim military service or honors to receive financial benefits. Congress, however, wanted to be able to jail people for just telling a lie. While the Stolen Valor Act concerns lying about a military medal, the Alvarez case could establish a legal principle allowing Congress to criminalize virtually any lie – allowing a sweeping new form of regulation of speech in the United States. Politicians have long denounced journalists, political opponents, and whistleblowers as liars, but they could now enact laws that would define some statements as criminal lies subject to arrest.

Lying about military service is a common fib heard in barrooms and board rooms around the country. Traditionally, when people tell such lies, we condemn them. Authors have lost readers, politicians have lost votes, employees have lost jobs when the lies come to light. And sometimes we even forgive them, as was the case with Connecticut Attorney General Richard Blumenthal who won a U.S. Senate seat despite being criticized for falsely claiming to have served in the Vietnam War.

The notion that we should send braggarts and liars to jail may seem odd, but it is part of a long and dangerous trend of criminalizing actions that could be dealt with in other ways. In Texas, lying about the size of a fish in a fishing derby is now a crime, as is snacking on a subway in Washington D.C. Politicians increasingly are insisting that their pet policy peeves should warrant criminal sanctions.

The Stolen Valor Act, however, is a direct attack on free speech and therefore far more dangerous.

It would be comforting to think that no federal judge could believe that the law is constitutional, and the Ninth Circuit did toss it out. But on the original three-judge panel that heard the case in that court, one jurist was willing, if not eager, to give the government the right to arrest citizens for lying. That judge, Jay Bybee, is all too familiar to civil libertarians for his infamous role in coming up with a now-discredited legal justification for the Bush torture program.

It all seems ripped from the writings of the Ministry of Truth in Orwell’s 1984: Bybee, a man accused of falsely bending the law to justify torture, now is a judge arguing in favor of jailing citizens for lies.

Bybee is inexplicably being supported in his assault on free speech by the Obama administration. The administration was not bound to appeal the 9th Circuit’s decision, but it has, brushing aside free speech concerns in its insistence that a “nation’s gratitude for the patriotism and courage” is at stake.

President Obama is likely to find jurists receptive to his point of view on the Supreme Court. It seems unlikely that the justices voting to accept the case did so simply to amplify the views of the Ninth Circuit – the most often reversed circuit in the country. Justices Roberts, Scalia, Thomas, and Alito are all viewed as proponents of police power and opponents of some free speech values. Even some justices on the left may not be reliable votes, including Obama’s nominee Sonya Sotomayor, who was opposed by some civil libertarians for her past rulings against free speech rights.

The power to criminalize lies naturally includes the right to define a lie. Giving the government such power would allow it to target “liars” who it portrays as endangering or dishonoring society. It is enough to make Big Brother blush.

Jonathan Turley is a professor of law at George Washington University.

Los Angeles Times
October 20, 2011

32 thoughts on “The Truth Police: The Supreme Court Takes Up Stolen Valor

  1. ARE, I am not an attorney, but have served in the offices of both Chair and Executive Secretary of our state professional licensing board. We would not have prosecuted someone for printing up calling cards, but if they had tried to provide services as a licensed professional, it would have been illegal and prosecutable.

  2. Arthur Randolph Erb,

    Certain professions are licensed to practice. Lawyers, doctors, engineers. That is for very good reason. Malpractice at these professions can result in innocent lives being destroyed. The reason for imposing criminal sanctions in those instance is a rather clear cut matter of public policy. No one should be allowed to claim and sell their professional services in an area in which they are not properly trained and licensed because of the risk to the public. These are professions with very specific educational and professional ethical guidelines.

    A hero is not a licensed profession nor is a soldier. In face, hero is entirely a subjective opinion. One can define certain objective standards to describe heroism, but in the end, one man’s hero is another man’s villain. Not all valor is found on the battlefield either. What of the hero who rescues a group of children from a burning building? Would you criminalize those who would falsely claim to be that if they were not? No. You’d just out them.

    Hero is in the eyes of the beholder.

    Lawyer, doctor and engineer are not.

    It’s not that lawyers are sacrosanct that is the issue.

    The issue is that you want to legislate speech around a nebulous concept like heroism.

  3. The US v Alvarez decision was an en banc decision of the 9th Circuit which criticized the statute because the American character we have learned from propaganda central is to lie:

    Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to main- tain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”)

    The Supremes may want to pretend that this reality, like climate change, is a big hoax, and that we are the center of the universe of truth.

  4. Culheath
    1, October 20, 2011 at 2:06 am
    Kerry lost an election because of Swift Boat lies and we wound up with phase two of the Bush administration horrors. What’s the remedy for that?
    Should people not be accountable for lies that cause damage?

    The remedy sadly, is not expecting, as did Kerry and the dems, that people would (will) do their own research/believe the truth with their own eyes (after all would we criminalize those, like Trump, who continue to assert the birth certificate is not legit?)
    With Kerry, and the birthers, the damage we brought on ourselves by not fighting the lies loud enough and strong enough. It is on us.

  5. ARE:

    “I still see NO response to my question as to whether or not a person should be prosecuted for printing up cards saying that they are an attorney when in fact they are not. If you can criminalize that, then it sure can be done for doing the same with military honors. Or I guess only lawyers are sacrosanct and heroes are not.”

    **************************
    Law criminalizing the impersonating of physicians, lawyers, and other professionals are enacted to protect the public not the professionals. They can take care of themselves. Similarly laws enacted to prevent charlatans from impersonating veterans to obtain benefits are likewise to protect the public — in that case the public purse. This law is designed to protect the honor of the true recipients. The problem is the misdeeds of the culprits affect neither the honor of the bona fide hero nor the interests of the public at large. It is founded on some emotional need to be in congress with and support those whose deeds need no support. Cicero quite properly said, “He only employs his passion who can make no use of his reason.” This statute is bad law — pure and simple.

    • While I stated that the law is overbroad and should be narrowed in a number of areas, in the case at hand, the person was not BSing at a bar. He was fraudulently claiming to military honors to promote his seeking of public office. Thus, this law does serve a function of protecting the public as well. If a candidate for judicial office states he is a lawyer to get on the ballot, that I believe is a punishable offense and we don’t get upset at prosecuting him if he lies.

  6. Mike S:

    “Mespo,

    You expressed my own feelings elegantly and exactly.”

    ************************

    Both glad and privileged to serve — in this instance — as the roar for a lion such as yourself.

  7. ARE:

    I agree that a fraud on the public in the election of a public official is just as significant, if not moreso, than a fraud against a private individual. If tailored to that effect, I would have no problem with such a statute.

  8. As the 10th Circuit Court of Appeals recently noted in a different Stolen Valor Act challenge, “The Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.”

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