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.

It's hard to imagine this Court hesitating to shove this idiotic law out the door;  in fact (to use words I seldom write) I look forward to Chief Justice Roberts's opinion.  What's fascinating, though, is the vehemence of the dissents, both at the appeal and the en banc stage.  On the three-judge panel, Judge Jay S. Bybee wrote that "false statements of fact  . . . generally fall outside First Amendment protection." False statements of all kinds, he reasoned, are a complete exception to the First Amendment, just like child pornography, fighting words, or soliciting a hitman to kill your spouse. (It should be noted that, as head of the Office of Legal Counsel, Bybee also gave the green light for government to use waterboarding and other tortures, undoubtedly only to elicit truthful speech.)  At the en banc level, Judge Diarmuid O'Scannlain wrote for a total of seven judges to the same effect, and reasoned that because maintaining an effective military is so important to the nation, any false statement about medals can be banned. 

What's on display here are two different views of the First Amendment.  One--embodied in the majority opinion and the Kozinski concurrence--holds that, absent a good reason, government should keep its nose out of what we say to other people. A few exceptions exist, recognized by American law since the time of the Founding.  But government can't go around creating new ones.

The other view holds that speech is pretty dangerous stuff, and so, while the First Amendment provides protection for some speech, legislators can otherwise step in to prevent folks from saying things that, in my grandmother's phrase, they shouldn't ought to say.  

The idea that there is a "falsehood exception" to the First Amendment dates back to the Sedition Act of 1798, which allowed the government to jail anyone "writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States." Jail they did--among others, the editors of every major opposition newspapers.  In our time, former independent counsel Kenneth Starr  dragged Clinton staffers before his grand jury because he suspected them of spreading "misinformation and distorted information" about him and his staff. "The First Amendment is interested in truth," he primly explained.

What's at stake here is not a "right" to go around wearing fake medals, which is and remains a federal crime. It's not about the "right" to commit fraud, which is a deliberate lie or omission of a "material fact" designed to get another person to take action (usually financial) to his detriment.  (In fact, Rep. Joseph Heck has introduced a plainly constitutional amendment to the Act, which would make it apply only when the liar steals valor "with intent to obtain anything of value.") Nor is it a "right" to defame others and damage their reputations with knowing lies. (Many of the precedents the dissenters cite for their "false speech" exception refer to defamatory lies.) 

Alvarez was lying about himself.  As Judge Kozinski himself pointed out, all of us are sometimes guilty of that; to bring the Starrs and Bybees pecksniffing into our daily conversation on those grounds, with subpoenas or worse, would make a mockery of free speech. Besides, if the reputation of military medals justifies jailing liars, then why wouldn't "false" (i.e., critical)  statements about U.S. tactics in Afghanistan, or even Bill Maher's famous remark that "Lobbing cruise missiles from two thousand miles away, that's cowardly"? It's not good enough to say that government critics could defend themselves by proving the truth of statements. By then, we have become Turkey, where it is a crime to insult the Turkish nation, ethnicity, or government.  I suspect we don't want to go there.

However, while we are on this subject, I do want to add that I was never actually a member of the Grateful Dead.  I am glad to take this opportunity to express my regret that any inexpert choice of words may on occasion have permitted others to reach a different conclusion.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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