US court, lies protected as free speech?
Emily Badger: US court, lies protected as free speech?
30 Mar 11

Xavier Alvarez told some pretty big lies about his military service during a 2007 municipal water-board meeting in California — that he retired as a US Marine after 25 years, during which time he was awarded the prestigious Medal of Honor. When it turned out Alvarez had never even been a Marine at all (let alone many of the other things he has claimed to be over the years – a Detroit Red Wings hockey player, an Iranian hostage crisis hero), the water board member was convicted under a 2006 federal law making it a crime to lie about receiving military honours.

Last week, an appeals court reaffirmed a lower-court ruling throwing out the conviction on logic that has been praised by free-speech advocates: The First Amendment, the court concluded, protects fibs told about military service, rendering the Stolen Valor Act unconstitutional. Other courts have disagreed about the constitutionality of the law, and the final word come could eventually from the Supreme Court.

Several judges dissented, arguing that “the right to lie is not a fundamental right under the Constitution.” But Chief Judge Alex Kozinski countered that criminalizing lies about military service could lead to making even more mundane falsehoods illegal.

“If false factual statements are unprotected,” he wrote, “then the government can prosecute not only the man who tells tall tales of winning the congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes.”

(JDate, which must surely be making its debut here in sweeping legal scholarship, is a popular online dating site for Jewish American singles.)