Can the Government Suppress Lies?

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People fib. But a current court case centers around whether laws can stop them.

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Here is Alex Kozinski, Chief Judge of the Ninth Circuit, on the way lying makes our world go around:

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 maintain 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").

It's vintage Kozinski, mixing politics, pop culture, and self-mockery (how many times has Kozinski heard clerk applicants call him the greatest living judge?). 

As Kozinski vividly writes, the freedom to lie is at stake in  United States v. Alvarez, a Ninth Circuit case in which the government, defeated below, has just filed for certiorari in the Supreme Court.  The case presents yet another attempt by lawmakers and the government to carve a new exception to the First Amendment--this one permitting government to punish virtually any lie.

Alvarez  is a constitutional test of the Stolen Valor Act, a recent brainstorm of Congress.  Federal law has long made it a crime to counterfeit U.S. military decorations or wear them if not entitled to; but since 2006, it has been a misdemeanor to " falsely represent[] . . .  verbally or in writing" that an individual has been awarded "any decoration or medal authorized by Congress for the Armed Forces of the United States . . . ." Violation can bring six months in jail.

To bring the Starrs and Bybees pecksniffing into our daily conversation, with subpoenas or worse, would make a mockery of free speech

This brings us to the  case of Xavier Alvarez, who somehow got himself elected to the Three Valleys Water District Board, headquartered in Claremont, California. By all accounts, Alvarez is what we would have called back home kinda pitiful. In introducing himself to his fellow directors, 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." 

Not only is Alvarez not a medal-winner, he was never a marine, never a cop, never a member of the Detroit Red Wings, and never the husband of a Mexican starlet.  He is, however, unlucky enough to have been snitched off to the FBI,  which got hold of the recording of the meeting.   Alvarez challenged the statute as a violation of the First Amendment.  

The sponsors of the Stolen Valor Act worry that crazed lies like Alvarez's "damage the reputation and meaning of such decorations and medals."  That's hardly a strong reason in First Amendment terms--after all, burning the flag might damage its reputation, and the First Amendment protects flag-burning. In fact, in this country, we don't protect the "reputations" of symbols, or even of government itself. The Ninth Circuit struck the Act down, leaving Alvarez free to haunt the bars of all three valleys trying to convince women that he is the real Rambo.  The government then sought  en banc review, which the court denied--with Judge Kozinski writing his dithyramb to deception as part of that order.  Now the government has asked the Supreme Court to get involved.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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