August 10, 2012 | Back to: News

Jim Porter: Lies are protected free speech

TRUCKEE, Calif. — Call me cranky and old fashioned, but it seems to me when someone intentionally makes a false statement of fact — they tell a lie — that serves no legitimate interest other than self-interest, it should not be protected as free speech under the First Amendment. Unfortunately the U.S. Supreme Court does not share my view.

“I Won the Congressional Medal of Honor”

I have written about this case before, so if it sounds familiar, it should. Xavier Alvarez won a seat on a local water board in part by telling everyone he had been awarded the Congressional Medal of Honor.

Alvarez was a pathological liar, but that was his big whopper. He challenged his conviction under the Stolen Valor Act.

Stolen Valor Act

Congress passed the Stolen Valor Act of 2005 in response to a proliferation of false claims concerning the receipt of military awards. For example, in a single year, more that 600 Virginia residents falsely claimed to have won the Medal of Honor. Most were probably members of Congress.

Under the Act, it is a misdemeanor to knowingly and falsely represent yourself has having been awarded a medal in the United States Armed Forces.

The Stolen Valor Act has a long tradition behind it. General George Washington warned that anyone with the “insolence to assume” a badge or honor that had not actually been earned would be “severely punished.”

In fact, it is a crime to wear an unearned military decoration without authorization, but this case deals with free speech — the right to say you’ve earned a medal. A huge (bizarre) difference under the law.

Court of Appeals

A U.S. Court of Appeals ruled that the Stolen Valor Act regulates “content-based” speech — which is not obscenity, defamation, fraud (Why isn’t it?), or incitement — so it is in violation of the First Amendment. You remember: “Congress shall make no law ... abridging the freedom of speech...”

U.S. Supreme Court

The U.S. Supreme Court took up the case, agreed with the Court of Appeals, and overturned the Act. The justices opined that a less severe way to deal with those who lie about military glory would to be to create a data base that could be used to verify claims. A government data base of all medal winners does not exist although apparently there is a Medal of Honor data base.

Conservative Justices Dissent

Where I sometimes disagree with the Supreme Court’s conservative wing, I agree with Justices Alito’s, Scalia’s and Thomas’ Dissent (note, not Chief Justice Roberts).

The Dissent starts with this compelling statement sure to please public sentiment: “Only the bravest of the brave are awarded the Congressional Medal of Honor, but the Court today holds that every American has a constitutional right to claim to have received this singular award.”

The Dissent noted that throwing out the Stolen Valor Act is inconsistent with long-standing precedent recognizing that the right to free speech does not protect false factual statements that serve no legitimate interest and inflict real harm, such as to actual medal recipients and their families. Alito: “Spreading false information in and of itself carries no First Amendment credentials ... untruthful speech, commercial or otherwise has never been protected for its own sake.”

Justice Alito’s conclusion makes sense: “The Stolen Valor Act is a narrow law enacted to address an important problem, and it presents no threat to freedom of expression. I would sustain the constitutionality of the Act, and I therefore respectfully dissent.”

I concur.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He was the Governor's appointee to the California Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, foreclosures, mediation and other transactional matters. He may be reached at porter@portersimon.com or at the firm’s website www.portersimon.com.


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Tahoe Daily Tribune Updated Aug 10, 2012 11:16AM Published Aug 10, 2012 11:15AM Copyright 2012 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.