The truth about lies and the First Amendment

Thursday, September 9, 2010

Xavier Alvarez never played hockey for the Detroit Red Wings.

He wasn’t secretly married to a Mexican starlet.

And he certainly wasn’t an ex-Marine who had been awarded the Congressional Medal of Honor.

But Alvarez claimed to be all three. And it was the lie about his military honors that led to his being charged with a felony under the Stolen Valor Act of 2005.

Now Alvarez can claim — truthfully — that he is a subject of a potentially pivotal First Amendment case in federal court. In a 2-to-1 decision, the 9th U.S. Circuit Court of Appeals struck down the Stolen Valor Law, saying it violated the First Amendment. The court showed no sympathy toward lying, yet it was reluctant to give the government too much latitude in punishing untruthful speech.

“The general freedom from government interference with speech … without the government injecting itself into the discussion as the arbiter of truth, contribute(s) to the ‘breathing space’ the First Amendment needs to survive,” Judge Milan Smith Jr. wrote.

The court couldn’t have had a much less sympathetic subject. “Alvarez makes a hobby of lying about himself to make people think he is ‘a psycho from the mental ward with Rambo stories.’” the judge wrote. Yet the court still threw out the charges against Alvarez, saying that lies have a role in a free society and that the government faces a very high hurdle if it wants to limit free expression.

So is it open season on the truth? Is the First Amendment so powerful that it allows us to say whatever we want, even if it’s a lie?

No. Truth still outweighs deceit in the marketplace of ideas, and many lies can still be punished.

You can’t lie under oath. You can’t shade the truth when applying for government benefits. You can’t fib to defraud someone. And it’s a really bad idea to flash a badge around when you’re not a police officer.

But the ticklish question for this appellate court and others is: When does a lie become damaging enough for the government to step in?

Political campaigns often lie about opponents, misleading the public and distorting details. But few would argue there’s any role for government in policing political hyperbole.

High school reunions can be festivals of embellishment, but there’s no need for government intervention. And as Judge Smith noted, online dating sites are full of exaggeration and misleading statements and photos. Clearly, pickup lines should be out of the reach of government.

People lie. A lot. It’s hard to pin down how much lying Americans do, but there’s a clue in a study done in Great Britain this year. The Science Museum of London concluded that British men tell an average of three lies a day and British women two.

A study last year by the Josephson Institute of Ethics found that a majority of teenagers 17 or younger said that lying and cheating are necessary to succeed. On George Washington’s birthday this year, more than 70% of those surveyed by CNN said Washington did indeed tell a lie and Honest Abe Lincoln wasn’t all that honest.

The Alvarez decision is a tough sell. There will be little support for a decision that gives men and women who have never worn a uniform the opportunity to claim they have medals for battles they never fought.

Still, most Americans would probably be receptive to the court’s core message: We can’t let government police truth in a free society. If the government wants to punish those who lie about military service, it has to write a tighter law, requiring a clear intent to defraud.

Sure, it’s troubling to see someone like Alvarez go unpunished, but it beats bending the First Amendment to send him to jail. And that’s the truth.

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