Members of the US Supreme Court grappled on Wednesday with the difficult task of deciding whether the First Amendment protects a free speech right to claim to be a decorated war hero \u2013 even if you aren\u2019t one. <\/p>\n
The high court is being asked to determine the constitutionality of the Stolen Valor Act of 2005, which makes it a federal crime to falsely claim to have received a military medal. <\/p>\n
During an hour-long argument, the justices weighed competing claims upholding the necessity of the statute against the dangers to free speech of a government willing to punish its citizens for something that is merely said. <\/p>\n
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Several justices seemed troubled by the prospect of opening a door to future laws that might ban false speech concerning one\u2019s receipt of a high school diploma or off-the-cuff comments made by a candidate in an election campaign. <\/p>\n
Others appeared ready to uphold the statute as a reasonable regulation of a particularly egregious kind of lie undeserving of constitutional protection. <\/p>\n
\u201cI believe there is no First Amendment value in falsehood,\u201d Justice Antonin Scalia declared, flatly. <\/p>\n
Chief Justice John Roberts and Justice Samuel Alito expressed similar sentiments. <\/p>\n
When Jonathan Libby, a deputy public defender from Los Angeles, struggled to answer repeated questions about the constitutional value of a lie, Justice Stephen Breyer broke into the discussion with an example of a situation justifying a deliberate falsehood that would be both honorable and constitutionally-protected: \u201cAre you hiding Jews in the cellar?\u201d <\/p>\n
Chief Justice Roberts brushed the comment aside. The statute regulates a \u201cpurely false statement about one\u2019s self.\u201d he said. \u201cWhat is the first Amendment value in [allowing such lies]?\u201d <\/p>\n
\u201cOur Founders believed that Congress as a general principle doesn\u2019t get to tell us what we as individuals can and cannot say,\u201d Mr. Libby replied. In other areas where the high court has long allowed regulation of speech, it involved speech that caused specific harm to others such as libel, obscenity, or incitement, Libby said. <\/p>\n
The case, US v. Alvarez (11-210), stems from comments made by Xavier Alvarez, the elected member of a local water district board in southern California. In July 2007, Mr. Alvarez introduced himself during a meeting as a retired US Marine who had served for 25 years and won the Medal of Honor in 1987. <\/p>\n
None of it was true. <\/p>\n
Alvarez was charged with violating the Stolen Valor Act. He faced up to six months in prison. <\/p>\n
After an FBI investigation, Alvarez entered a conditional guilty plea. His lawyer, Mr. Libby, continued to fight the charge, arguing that the underlying statute, the Stolen Valor Act, violated Alvarez\u2019s free speech rights. <\/p>\n
Prosecutors defended the law as a narrowly focused regulation of a discrete category of speech that served the important government interest of preventing the dilution of the value of military medals. <\/p>\n
A federal judge upheld the conviction, but a panel of the Ninth US Circuit Court of Appeals reversed. The appeals court said the Stolen Valor Act could not withstand the scrutiny required of a federal law that sought to censor speech based upon its content. <\/p>\n
US Solicitor General Donald Verrilli urged the justices to overturn the Ninth Circuit. \u201cThis statute is as narrow as you can get it,\u201d he said. <\/p>\n
Justice Sonia Sotomayor questioned whether it was, in fact, as narrowly focused as possible. \u201cI thought the core of the First Amendment was to protect even against offensive speech,\u201d she told the solicitor general. <\/p>\n
She said the statute appeared to be aimed at addressing the offense felt when someone falsely claims to be a medal recipient. But Sotomayor said more than just an emotional reaction \u2013 more than mere offense \u2013 was necessary to justify a restriction on free speech. <\/p>\n
\u201cSo outside the emotional reaction, where\u2019s the harm,\u201d Sotomayor asked. <\/p>\n
It is about honor, Verrilli answered. It is about \u201cthe essence of what we want in our service men and women \u2013 courage, sacrifice, love of country, willingness to put your life on the line for your comrades,\u201d he said. <\/p>\n
\u201cWhat the medals do is say to our military, this is what we care about,\u201d Verrilli said. <\/p>\n
\u201cFor the government to say this is a really big deal and then to stand idly by when one charlatan after another makes a false claim to have won a medal does debase the value of the medal in the eyes of the soldiers,\u201d the solicitor general said. \u201cWe think the government has the authority and the constitutional space to try to deter this kind of speech.\u201d <\/p>\n
Justice Elena Kagan asked how the Stolen Valor Act differed from many state statutes that outlaw demonstrably false statements by a political candidate during an election campaign. <\/p>\n
Verrilli said such attempts to regulate speech during a political campaign carry a more significant risk of deterring or chilling other speech. <\/p>\n
\u201cSuppose it says demonstrable falsehoods about yourself,\u201d she asked. <\/p>\n
\u201cThose statutes are going to pose a particular risk of chill, that this statute does not pose,\u201d Verrilli said. <\/p>\n
Kagan was not convinced. \u201cThey are the same kind of statement,\u201d she said. \u201cOne knows the same sorts of things about oneself.\u201d <\/p>\n
The solicitor general said the Valor Act did not present a similarly broad risk of a chilling effect on other speech. \u201cWhat we\u2019re talking about is a very specific pinpoint thing: Have you been awarded a military honor or not?\u201d <\/p>\n
He said the court could apply a special level of \u201cbreathing space\u201d in its First Amendment analysis to avoid any spill over chilling effect. <\/p>\n
Justice Anthony Kennedy, one of the high court\u2019s strongest free speech defenders, seemed perplexed by the case. <\/p>\n
\u201cThe whole breathing space thing almost has it backwards,\u201d he told Verrilli. \u201cIt presumes that the government is going to have a ministry of truth and then allow breathing space around it, and I just don\u2019t think that\u2019s our tradition.\u201d <\/p>\n
He added: \u201cOn the other hand, I have to acknowledge that this does diminish the medal in many respects.\u201d <\/p>\n
A decision is expected by late June. <\/p>\n
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Originally posted here: Members of the US Supreme Court grappled on Wednesday with the difficult task of deciding whether the First Amendment protects a free speech right to claim to be a decorated war hero \u2013 even if you aren\u2019t one. Continue reading
\nSupreme Court debate: Is lying about being a war hero protected speech?<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"