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