Liars have a constitutional right to free speech
By NOAH FELDMAN | BLOOMBERG NEWS Published: July 2, 2012
Lost in the hoopla over the Supreme Court’s ruling upholding the Affordable Care Act is a fascinating and important free-speech decision that is one of the oddest in the already strange history of the First Amendment.
The case, Alvarez v. United States, was all about lies. The first sentence of Justice Anthony Kennedy’s plurality opinion is an instant classic: “Lying was his habit.”
This is a substantial understatement. Xavier Alvarez was a fabulist straight out of Mark Twain. He “lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico.” When newly elected to the local water board in Claremont, Calif., Alvarez falsely told his new colleagues that he was a retired Marine who had received the Medal of Honor after being wounded repeatedly by the same aggressor.
This last lie was unlike the others. It violated the Stolen Valor Act of 2005, which made it a crime to lie about decorations received in military service. It was already a crime to lie about military service to defraud the government or private person of some gain. The Stolen Valor Act criminalized the mere act of lying about military decorations, full stop. No intention to defraud was required.
Alvarez seems not to have sought to gain anything by his lie other than esteem. This made him a perfect test case for a question that previously tormented no one but law professors and their students: Does the right to free speech extend to lying for no otherwise unlawful gain?
On the surface, the issue might seem straightforward. With the possible exception of Justice Hugo Black, who liked to say that “Congress shall make no law” really meant no law at all, no Supreme Court justice has ever believed free speech to be absolute. At times, the court has said that certain kinds of speech — such as obscenity, libel and the ill-defined “fighting words” — deserve no protection whatsoever. Although that categorical approach has faded from the court’s jurisprudence, the justices still believe that speech must have some value to merit protection under the First Amendment.
What value inheres in lies about simple matters of fact? What good could possibly come of Alvarez telling people that he risked his life for his country when he did no such thing?
Three justices — Samuel Alito, Antonin Scalia and Clarence Thomas — said the answer was “none.” There was no reason, they said, to stop Congress from criminalizing lies about military service.
The other six justices disagreed. In oral arguments, it had sounded as though a majority might uphold the law. But in two separate opinions, neither commanding a majority of five, the justices tried their best to explain what was so useful about lying.
The job wasn’t easy. Alvarez’s lawyers, as well as some academics who had filed briefs as friends of the court, had urged the most brazen logic of all, one that Twain himself could only have admired: Lying is a necessary and valuable component of the self-presentation in which we all engage.
The trouble with this argument isn’t only that it turns Jay Gatsby into the archetypal American. (He already is.) It’s that our meritocratic culture is obsessed with sussing out the lies that people slip into their accounts of themselves. From the MIT dean of admissions to the Yale football coach to Yahoo’s chief executive officer, we have seen multiple examples of the public shaming of the “genus: white liar, species: resume-padder.”
That left the justices scrambling to explain just what was wrong with the law. Kennedy, in his plurality opinion, pointed out that it covered not only public statements but also whispered conversations in the home. Yet, as Alito rejoined, this observation simply showed the law was too broad — not that the prohibition had no value.
Kennedy also invoked the danger of a chilling effect on legitimate speech. Here, too, the argument was weak: Presumably the only person who would be chilled by the law was one who self-consciously intended to lie about his military record, not the octogenarian struggling to remember how many Purple Hearts he had earned in Korea.
Justice Stephen Breyer, joined by Justice Elena Kagan, went a bit further. He said that social lies are valuable “where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence.” He added that public lies could “stop a panic or otherwise preserve calm in the face of danger.” And, former law professor that he is, Breyer invoked the Socratic method, in which he claimed, “examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.”
None of these arguments really addresses the Alvarez case. The bride is always beautiful, said the rabbis of the Talmud. And it is heartwarming for little Virginia still to believe in Santa Claus. These are matters of opinion and myth, not fact. Public lies about imminent disaster are the product of a paternalistic past and today would lose the teller his job. Socrates, for his part, was playing a philosophical game — and the Athenians condemned him to death for his dangerously corrupting truths, not his misleading statements, which were mostly in the form of questions anyway.
Breyer didn’t mention Stephen Colbert. But he did invoke the famous assertion of John Stuart (Mill) that falsehoods in debate promote the truth through their “collision with error.” This might be closer to the right answer. Rooting out those who lie about military commendations should make us consider publicly the extraordinary debt we owe to those who risk or give their lives and merit the real thing.
We don’t need to tolerate the liar. In a free society, however, maybe we have to shoulder the burden of condemning him ourselves — instead of lazily trusting the government to do something about it.
Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist.