Lost in the hoopla over the Supreme Court’s ruling upholding the Affordable Care Act is a fascinating and important free-speech decision that is one of the oddest in the already strange history of the First Amendment.
The case, Alvarez v. United States, was all about lies. The first sentence of Justice Anthony Kennedy’s plurality opinion is an instant classic: “Lying was his habit.”
This is a substantial understatement. Xavier Alvarez was a fabulist straight out of Mark Twain. He “lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico.” When newly elected to the local water board in Claremont, Calif., Alvarez falsely told his new colleagues that he was a retired Marine who had received the Medal of Honor after being wounded repeatedly by the same aggressor.
This last lie was unlike the others. It violated the Stolen Valor Act of 2005, which made it a crime to lie about decorations received in military service. It was already a crime to lie about military service in order to defraud the government or private person of some gain. The Stolen Valor Act criminalized the mere act of lying about military decorations, full stop. No intention to defraud was required.
Alvarez seems not to have sought to gain anything by his lie other than esteem. This made him a perfect test case for a question that previously tormented no one but law professors and their students: Does the right to free speech extend to lying for no otherwise unlawful gain?
On the surface, the issue might seem straightforward. With the possible exception of Justice Hugo Black, who liked to say that “Congress shall make no law” really meant no law at all, no Supreme Court justice has ever believed free speech to be absolute. At times, the court has said that certain kinds of speech — such as obscenity, libel and the ill-defined “fighting words” — deserve no protection whatsoever. Although that categorical approach has faded from the court’s jurisprudence, the justices still believe that speech must have some value to merit protection under the First Amendment.
What value inheres in lies about simple matters of fact? What good could possibly come of Alvarez telling people that he risked his life for his country when he did no such thing?
Three justices — Samuel Alito, Antonin Scalia and Clarence Thomas — said the answer was, “none.” There was no reason, they said, to stop Congress from criminalizing lies about military service.
The other six justices disagreed. In two separate opinions, neither commanding a majority of five, the justices tried their best to explain what was so useful about lying.
The job wasn’t easy. Alvarez’s lawyers, as well as some academics who had filed briefs as friends of the court, had urged the most brazen logic of all, one that Twain himself could only have admired: Lying is a necessary and valuable component of the self-presentation in which we all engage.
The trouble with this argument isn’t only that it turns Jay Gatsby into the archetypal American. (He already is.) It’s that our meritocratic culture is obsessed with sussing out the lies that people slip into their accounts of themselves. From the MIT dean of admissions to the Yale football coach to the chief executive officer of Yahoo!, we have seen multiple examples of the public shaming of the “genus: white liar, species: resume-padder.”
So Breyer invoked the famous assertion of John Stuart Mill, that falsehoods in debate promote the truth through their “collision with error.” Rooting out those who lie about military commendations should make us consider publicly the extraordinary debt we owe to those who risk or give their lives and merit the real thing.
We don’t need to tolerate the liar. In a free society, however, maybe we have to shoulder the burden of condemning him ourselves — instead of lazily trusting the government to do something about it.
Noah Feldman is a law professor at Harvard University. From Bloomberg View.