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Lying was the subject in arguments today at the Supreme Court, specifically at issue was the constitutionality of a 2006 law that makes it a crime to lie about having received a military medal. But the questions post by the justices ranged far beyond that, from deceptive advertising to lying on a date. NPR legal affairs correspondent Nina Totenberg has the story.
NINA TOTENBERG, BYLINE: Even his lawyer doesn't dispute that if Xavier Alvarez is a liar, he lied about being an ex-professional hockey player, he lied about being a veteran, he even lied about rescuing the American ambassador during the Iranian hostage crisis, but none of those lies was illegal. This one is.
XAVIER ALVAREZ: I'm a retired Marine for 25 years. Back in 1987, I was awarded the Congressional Medal Honor.
TOTENBERG: When he introduced himself that way at a California water board meeting, Alvarez violated the Stolen Valor Act, which makes false claims about receiving military medals a crime. Alvarez challenged the law in court, contending it violated his right of free speech and he won. The government appealed to the Supreme Court where, today, Solicitor General Donald Verrilli told the justices that the Stolen Valor Act regulates only a narrowly drawn category of calculated falsehoods, and that this pinpointed pure lies are not speech protected by the First Amendment.
Justice Sotomayor: Supposing during the Vietnam War, a protester holds up a sign that says, I won a Purple Heart for killing babies, and the protester didn't win a Purple Heart, could that person be prosecuted under this act? Answer: It would depend whether that expression was reasonably understood by the audience as a statement of fact or an exercise in political theater.
Justice Sotomayor: That's somewhat dangerous, isn't it? I thought your position is that there are no circumstances in which this speech has value. Answer: This court has said repeatedly that the calculated falsehood has no First Amendment value.
Justice Kennedy, his face reddening: I simply can't find that in our cases. I think it's a sweeping proposition to say that there's no value to falsity.
Chief Justice Roberts: Where do you stop? Is it a crime to say you have a high school diploma if you know that you don't? Verrilli said that Congress or more likely state governments could make such false statements a crime. Justice Kennedy, however, was clearly in search of some narrower category of false speech that could be outlawed. You can argue that this is something like a trademark, a medal in which the government and Armed Forces have a particular interest, and we could carve out a narrow exception for that. But just to say that there's no value of false speech, I simply cannot agree.
Justice Alito: Is you're argument limited to statements a person makes about himself? Answer: Yes. Alito followed up: Why draw a line there? Suppose the statute also makes it a crime to falsely claim that a parent or a spouse or a child has won a military medal?
Justice Ginsburg: What about criminalizing false statements denying the Holocaust ever occurred? Verrilli replied that that kind of statement would be protected under the First Amendment because it's so bound up with matters of ideological controversy.
Justice Scalia: Even in the commercial context, we allow a significant amount of lying, don't we? It's called puffing.
Justice Kagan: What about lying about extramarital affairs? After all, the government has an interest in promoting family values. Answer: That's a hard case.
Justice Breyer: The trouble is, we can think of 10,000 cases that meet your criteria.
Justice Sotomayor: The core of the First Amendment is to predict even offensive speech. In this case, she contended, we don't think less of the medal. We're offended by the lie. So outside of the emotional reaction, where's the harm? I'm not minimizing it, she added, but I take offense when someone I'm dating makes a claim that's not true.
Solicitor General Verrilli piped up: As the father of a 20-year-old daughter, so do I, but the point of these medals, he said, is that they are a big deal. You get one for doing something very important after a lot of scrutiny. And for the government to sit idly by when one charlatan after another makes a false claim to having won the medal does debase the value of the medal in the eyes of soldiers.
Justice Ginsburg: Did the military ask Congress to enact this law? Answer: It did not.
Following Verrilli to the podium was the lawyer for Alvarez, public defender Jonathan Libby. He quickly faced a question from Chief Justice Roberts. What's the First Amendment value in a pure lie? Answer: We often make things up about ourselves. Samuel Clemens creating Mark Twain, he made up things about himself.
Justice Alito: Do you really think there's a First Amendment value in a boldface lie about a purely factual statement that a person makes about himself?
When lawyer Libby floundered, Justice Breyer interjected, well, how about the answer to: Are you hiding Jews in the cellar? No.
Justice Scalia: When Congress passed this statute, I assume it did so because it thought the value of the awards was being demeaned and diminished.
Justice Kennedy: It's a matter of common sense that it demeans the medal.
Justice Sotomayor: Why isn't the outrage that the legitimate medal winners may feel about these false claims comparable to the intentional infliction of emotional distress that's punishable under tort law? Answer: In order to justify a law like this, there would have to be an immediate targeted harm that's inflicted, and there is none here, or there had to be some sort of personal gain.
Justice Alito: Well, suppose as a result of a false claim like this, he gets a date with a rich potential spouse. Answer: I certainly would not think that's a significant thing of value.
Justice Alito, with a wry smile: Some people might have a different opinion.
Nina Totenberg, NPR News, Washington.
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