RENEE MONTAGNE, HOST:
The U.S. Supreme Court hears arguments today in a case about lies big and small, about when the distortion of truth can be a crime under the Constitution's guarantee of free speech. This case tests the constitutionality of a federal law making one lie in particular a crime - claiming to have been awarded military medals for valor. Here's NPR legal affairs correspondent Nina Totenberg.
(SOUNDBITE OF SONG, "LIES")
THE KNICKERBOCKERS: (Singing) Lies, lies, I can't believe a word you say...
NINA TOTENBERG, BYLINE: Xavier Alvarez is a liar. He lied about being an ex-professional hockey player. He lied about being an engineer. He lied about rescuing the American ambassador during the Iranian hostage crisis. He even lied about being a retired Marine. But none of those lies is a crime. Only one of his whoppers violated the law - the one he told after being elected to a municipal water board in California. On a visit to a neighboring board, he introduced himself this way...
XAVIER ALVAREZ: I'm a retired Marine. Back in 1987, I was awarded the Congressional Medal of Honor.
TOTENBERG: In fact, Alvarez had never won any military medals. He'd not even served in the military at all. And under the federal law, making false claims about winning military medals are a crime punishable by up to a year in prison. Laws that make it a crime to wear an unearned military medal date back nearly a century. But the law making it a crime to simply lie about it is quite recent. The statute, entitled the Stolen Valor Act, was passed in 2005. And the question in this case is whether that law violates the Constitution's guarantee of free speech. A federal appeals court ruled that the law is unconstitutional. The court said that a statute like this one does not fit within any of the exceptions that have been carved out to the First Amendment - speech that's defamatory or that defrauds or that's obscene. To allow the government to punish false speech without more would be, in the words of one judge, terrifying. If Congress can make it a crime to lie about military medals, he said, it can do the same for the JDater who falsely claims he's Jewish. Today in the Supreme Court, the government, backed by various veterans groups, will argue that the person who lies about receiving a military medal has stolen the valor of the award. Aaron Street represents the American Legion.
AARON STREET: Congress has determined that falsifying claims to those medals is an important and particularly dangerous kind of lie that harms our military, it harms our veterans, by diluting the value of the honors that were appropriately won.
TOTENBERG: Jonathan Libby, the public defender representing Alvarez, disagrees.
JONATHAN LIBBY: We've not seen any evidence to suggest that there's been any effect on recruitment or on service members doing their jobs. There's simply no evidence out there to suggest that there's any real problem along those lines.
TOTENBERG: While there may not be any evidence of harm to military morale, there is evidence that as long as there have been military medals, there have been significant numbers of people who lied about getting them. In the years after the Civil War, military medals became so popular that false claims of valor were commonplace. More recently, in 2008, the Chicago Tribune investigated every biography in "Who's Who" that listed a military medal - over one-third of the people claiming medals had not received one. Among those who have made such false claims were clergymen, doctors, CEOs, career military officers, university professors, judges, and prominent officeholders. The government contends this proves the need for the law as a deterrent. But those challenging the law say that exposure serves the same purpose. They note that by the time Alvarez was prosecuted, he'd already been exposed and pilloried in public. And they contend that the simplest and least dangerous solution to the problem is a readily accessible database that allows anyone to check the list of military medal winners with the click of a mouse. At its core, though, this is a debate about when government can place limits on speech. Again, the American Legion's Mr. Street.
STREET: False statements of fact have never been held to be constitutionally protected. And this particular species of false statement of fact we think has traditionally been condemned throughout our nation's history with no suggestion that punishment for that false claim is unconstitutional.
TOTENBERG: Street and other supporters of the Stolen Valor Act point to other federal and state laws that could be undermined if the Supreme Court rules against the government - laws that make it a crime to impersonate a policeman, or to make unsworn false statements to law enforcement, or laws banning deceptive use of a name in fundraising. But lawyers for Alvarez say those laws are very different. They involve lying to defraud or to obstruct an investigation or to obtain something of value or to harm. In contrast, they note that under the Stolen Valor Act a person could be prosecuted for telling lies about medals at a Thanksgiving dinner in his own home. At today's argument, the justices will almost certainly press the Obama administration to define the limits of the government's power to punish false factual statements. Defense lawyer Libby spins out some potential lines of inquiry.
LIBBY: If someone denies the existence of the Holocaust, that's generally considered to be protected free speech. In other countries that's not the case. You know, we have the so-called birther movement in this country. Certainly Congress could pass a law making it a crime to falsely represent that the president is not a natural born citizen.
TOTENBERG: And what about satire involving false claims of military medals?
LIBBY: The fact is, someone like Stephen Colbert could, under the statute, be prosecuted if Stephen Colbert in his character as Stephen Colbert were to make this false statement.
TOTENBERG: These are all questions posed in friend-of-the-court briefs filed by major news organizations, including NPR. But the American Legion's Street contends that false medal claims in satire can be distinguished from other false medal claims, and that Holocaust or birther false claims are entirely different.
STREET: Once you start criminalizing speech about historical or political topics, it threatens to chill speech that is clearly protected.
TOTENBERG: As to Mr. Alvarez, the man whose false medal claims are at the center of this case, he is currently in jail, not because he lied about military medals, but because of other lies that amounted to insurance fraud. Inevitably I had to ask his lawyer this question: So is your client a nutcase?
STREET: I think there's certainly some people who would probably describe him that way. Certainly some of his colleagues were quoted as saying that when you first meet him and talk to him, it's pretty clear you can't trust anything that comes out of his mouth.
(SOUNDBITE OF SONG, "LIES")
KNICKERBOCKERS: (Singing) Lies, lies, I can't believe a word you say. Lies, lies, are gonna make you sad someday...
TOTENBERG: Nina Totenberg, NPR News, Washington.
(SOUNDBITE OF SONG, "LIES")
KNICKERBOCKERS: Some day I'm gonna be happy but I don't know when just now. Lies, lies, you're breaking my heart. You think that you're such a smart girl and I'll believe what you say.
MONTAGNE: This is NPR News.