As the Supreme Court has agreed to consider the constitutionality of the Stolen Valor Act, 18 U.S.C. § 704(b), having granted cert in   United States v. Alvarez which held the law unconstitutional as an infringement of free speech.  This hasn’t sat well with many.

The law prohibits people from lying about their having been awarded a military decoration, as Xavier Alvarez claimed when he, as an important water district director, told people he had been awarded the Congressional Medal of Honor when he was a marine.  Go big or go home is the water district motto. Sadly, Alvarez was a lying liar. He was no marine, and he certainly won no medal of honor. 

And so he was prosecuted.  The Ninth Circuit raised a hoary issue:

The Act, as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact—without anything more.

The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech.

There aren’t many people who don’t find Alvarez a morally reprehensible human being for having lied about winning a medal of honor.  Indeed, one element that I’ve consistently decried as missing from the constant stream of crimes created by Congress is that lack of a mens rea, an element of moral culpability.  This time, they’ve got one.  You have to be a real lowlife to do what Alvarez did, and it’s impossible to imagine that we could imprison a guy for having more than ten chickens on a piece of land less than an acre but leave Alvarez to walk free.  Of course, the answer is not to imprison chicken man, but that’s another discussion.

My dear, close personal pal and protege (complete and total lie), Jonathan Turley, published an op-ed in USA Today decrying both the law and the significance of the Supreme Court’s review:

Alvarez’s “semper fraud” led to a conviction, which was later thrown out by the Ninth Circuit in San Francisco. The court rightly found that the Stolen Valor Act was an unconstitutional restriction of free speech. Now, ominously, the U.S. Supreme Court has agreed to review that decision.

We have always had fraud laws making it illegal to claim military service or honors to receive financial benefits. Congress, however, wanted to be able to jail people for just telling a lie. While the Stolen Valor Act concerns lying about a military medal, the Alvarez case could establish a legal principle allowing Congress to criminalize virtually any lie – allowing a sweeping new form of regulation of speech in the United States. Politicians have long denounced journalists, political opponents, and whistleblowers as liars, but they could now enact laws that would define some statements as criminal lies subject to arrest.

His point will likely be missed by many, as there is absolutely nothing to commend Alvarez’s conduct, and few will favor the idea that freedom of speech includes freedom to lie.  Certainly, there are plenty of limitations on speech far less disgraceful than falsely claiming to be a war hero, and why we would protect a lie of this nature eludes many.  Truth be told, there’s no good argument for giving First Amendment protection to such lies.

But that’s not the point.  The question raised isn’t whether “low value” speech deserves such adoration that we include it in the pantheon of political discourse, but whether we criminalize it per se.  Here’s the kicker: we regularly criminalize low value speech because of its intended consequences.  We do not criminalize it because we just plain hate the speech itself.  The crime lies not in the speech, but in the harm it causes.

The problem, as Turley argues, is that it’s not particularly likely that cert was granted for the majority of the court to sing hosannas in support of the circuit’s opinion, with Jay Bybee, “a man accused of falsely bending the law to justify torture,” dissenting.

It seems unlikely that the justices voting to accept the case did so simply to amplify the views of the Ninth Circuit – the most often reversed circuit in the country. Justices Roberts, Scalia, Thomas, and Alito are all viewed as proponents of police power and opponents of some free speech values. Even some justices on the left may not be reliable votes, including Obama’s nominee Sonya Sotomayor, who was opposed by some civil libertarians for her past rulings against free speech rights.

This opens the door to an entirely new, essentially virgin turf of crime: The mere utterance of a lie. It snakes its way into acceptability because we’re all disgusted by lies of valor, and it’s surely got strong support from those who faced bullets on behalf of their country.  Reprehensible conduct, such as this is, provides a huge push for something to be done about it, and no one would cry about Alvarez getting smacked good and hard.

But once a lie, with no harm, becomes a crime, there’s no place to rationally stop the slide. It’s not that this speech is particularly deserving of protection, or lacks the moral culpability that most of us would applaud as its utterer was locked in the stocks in the public square.  It’s that making a lie without more a crime opens a door through which we would all likely pass.

And the worst part is, who would be in the position of defining what constitutes a lie, or accusing another of lying?  Let’s not go there until we have to, as the very thought of it boggles the mind.