WASHINGTON — Supreme Court justices on Wednesday sounded cautiously sympathetic to a federal law that punishes fake military heroes.
While not marching in lockstep, the justices seemed to agree that lying about medals does damage to the military's honor. Their questions hinted that they might uphold the law used to prosecute a California man who falsely claimed to have been awarded the Medal of Honor.
"It's a matter of common sense, that it seems to me it demeans the medal," said Justice Anthony Kennedy, who is often a swing vote on close cases.
Kennedy and his colleagues were confronting the Stolen Valor Act, which imposes prison sentences of up to six months on those who "falsely represent" that they have received a military medal. For high-ranking medals, the potential penalty increases to a year in prison.
(A separate law, which is not being challenged, makes the unauthorized wearing of uniforms and associated medals a criminal violation.)
Several justices made clear during the hour-long oral argument Wednesday morning that they doubted the First Amendment protects the kind of self-serving lie propounded by Xavier Alvarez, the Southern California resident who falsely claimed to have been both a Marine and a Medal of Honor recipient.
"I believe that there is no First Amendment value in falsehood," Justice Antonin Scalia declared, though he added that "this doesn't mean that every falsehood can be punished."
Justice Samuel Alito likewise pressed Alvarez's attorney on whether "you really think there's a First Amendment value in a bald-faced lie," while Chief Justice John Roberts Jr. demanded to know why a "pure lie" deserved protection.
"There can be a number of values," attorney Jonathan Libby responded. "There is the value of personal autonomy."
"The value of what?" Roberts responded, sounding skeptical. "What does that mean?"
Roberts noted that the Constitution already has been interpreted to permit regulation of various kinds of unworthy speech, including defamation, perjury and trademark violations.
At the same time, the give and take Wednesday sounded as though the justices were looking for a way to protect the military's medals without opening the door to further government intrusions on speech.
"If I'm right that there are very good First Amendment reasons sometimes for protecting false information, and if this (lie) also would cause serious harm ... are there less restrictive ways of going about it?" asked Justice Stephen Breyer.
One less-restrictive method, currently being proposed before Congress, would specify that lies about military heroism are illegal if done "with intent to obtain anything of value."
The original Stolen Valor Act, quickly and unanimously approved by the Senate in 2006, lacked this intent requirement. The House likewise approved the original legislation without a hearing, following about 20 minutes of one-sided floor discussion.
"The military applies exacting criteria in awarding honors," Solicitor General Donald B. Verrilli Jr. argued Wednesday, "and Congress has a long tradition of legislating to protect the integrity of the honor system."
Appellate courts have reached differing conclusions about the law.
In Colorado, a federal judge dismissed charges against Rick G. Strandlof, who had raised funds while falsely claiming to be a wounded Marine. The 10th U.S. Circuit Court of Appeals reversed the judge and deemed the law constitutional.
In California, though, the 9th U.S. Circuit Court of Appeals struck down the case against Alvarez. Formerly an elected member of the Three Valleys Municipal Water District, in the Pomona Valley, Alvarez was caught lying about his supposedly heroic military record.
"The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie," said Libby, a Los Angeles-based federal public defender. "It doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member."
But in a potentially significant concession, quickly seized upon both by Verrilli and several justices, Libby acknowledged the law apparently does not chill truthful speech. This concession could make it easier for a court majority to uphold the law.
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