Soldiers salute the flag draped-coffin of a fallen comrade at the Joint…
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 played a key role 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 President 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 criminal conviction, which was later thrown out by the U.S. 9th Circuit Court of Appeals 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. With the Stolen Valor Act, however, Congress made it possible to jail someone simply for telling a lie. That is a dangerous precedent. While the act concerns only lying about a military medal, the Alvarez case could establish a legal principle that would allow Congress to criminalize virtually any fib, which could lead to a sweeping new form of regulating speech in the United States. Politicians have long denounced journalists, political opponents and whistle-blowers 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 boardrooms around the country. Traditionally, when people are found to have told such lies, we condemn them. Authors have lost readers, politicians have lost votes, employees have lost jobs. And sometimes we even forgive them, as was the case with Connecticut Atty. Gen. Richard Blumenthal, who won a U.S. Senate seat despite having falsely claimed 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 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 9th 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 formulating a now-discredited legal justification for the Bush torture program. The whole scenario 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 will probably 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 9th Circuit — the most often reversed circuit in the country. Justices John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. are all seen as supporters of police power and opponents of some free-speech values. Even some justices on the left may not be reliable votes, including Obama nominee Sonia Sotomayor, whose nomination 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.