Let's Celebrate Liars

Xavier Alvarez, a former member of a municipal water board in Claremont, Calif., is hardly an endearing character. Supreme Court Justice Anthony M. Kennedy introduces him as follows: “Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005.” “Though few might find respondent’s statements anything but contemptible,”

Justice Kennedy nevertheless ruled, “his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression.”

That’s right. The First Amendment defends the right to lie — or atleast bars the state from prosecuting liars. We want to keep it that way. As Justice Kennedy sagely reminds us: “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”

If you are wondering why, consider the implications. Here Alvarez made his false claims at a public meeting, but under the law, the government could as easily have prosecuted him for making them privately. What other “lies” might the government prosecute? After all, the motivation for enacting the Stolen Valor Act in the first place was because pretenders were perceived to dilute the value and diminish the honor of these awards. How about disrespecting the flag by desecrating it? The government attempted that too, a law the U.S. Supreme Court invalidated in 1989. 

Then there is the touchy issue of just which lies the government is particularly sensitive to and more inclined to penalize. After all, there is a whole lot of lying going on, by the government no less, as we well know from history. Indeed, the Stolen Valor Act distinguished the penalty between different military decorations. Guess which one Congress found most objectionable? False claims about the Congressional Medal of Honor attracted twice the penalty — one year — than false representations about other military decorations, which drew a maximum of a six month penalty. Whatever had Congressmen particularly exercized about false claims about the Congressional decoration, you might wonder? 

Justice Kennedy wrote: “Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable…. Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out…. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”

Unlike other aspects of our social and public life, free speech is not, nor should it ever be, subjected to a balancing of countervailing social costs and benefits. The dangers of government overreach, the chilling effects of the penalties on critics, the historical evidence of erstwhile pernicious falsehoods that are today’s celebrated wisdoms, all render well intentioned regulations of even targeted falsehoods counterproductive in a free society. Consequently, the Supreme Court has long held: “As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content…. The Constitution demands that content based restrictions on speech be presumed invalid … and that the Government bear the burden of showing their constitutional validity.”

His Supreme Court victory notwithstanding, Alvarez is hardly celebrating on his rooftop. Long before he was charged, he had been exposed and ridiculed as a phony and a fraud. In fact, he was charged only because he had been so exposed. But we should celebrate Alvarez this Independence Day as one in a continuing line of outcasts — anarchists, Communists, flag burners, racists, fringe religious and political fanatics — to whom we owe an eternal debt of gratitude for keeping the embers of free speech alive.