With the recent, epic rulings involving the Arizona immigration law and Obamacare, the United States Supreme Court has been getting more than its fair share of press lately. 

In all the excitement about those historic rulings, you might have missed a recent decision that answered a question we posed last spring – may a person lie about having received the Congressional Medal of Honor?

A little background is in order.

California resident Xavier Alvarez was, to put it mildly, a liar.  Over the course of 20-plus years, Xavier told people that he was a retired professional hockey player and had married a famous Mexican movie star. 

None of it was true.

But it was one lie in particular that got Alvarez in trouble. 

Applying for a job, he told a potential public employer that he had once earned the Congressional Medal of Honor. 

The Stolen Valor Act, you might recall from the earlier column, made it a federal misdemeanor to lie about earning a military honor. After Alvarez was caught in his web of deceit, the government charged with him violating the law.

A federal appeals court ruled that his lie, though troubling, was protected by the First Amendment right of free speech.  The case wound up in the United States Supreme Court.  http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf

Upholding the lower court’s decision throwing out the statute, Justice Anthony Kennedy, writing for the plurality, held that content-based restrictions on speech are “confined to the few historic and traditional categories [of expres­sion] long familiar to the bar.”  These include defamation, “fighting words,” child pornography and fraud. 

Addressing the argument that there should be little or no Constitutional protection for “false statements,” Justice Kennedy noted that “permitting the government to decree [false statements] to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern­ment authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle… [T]here could be an endless list of subjects the Na­tional Government or the States could single out…Were the Court to hold that the in­terest in truthful discourse alone is sufficient to sustain a ban on speech … it would give govern­ment a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom…”

Three justices dissented. 

Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. rejected the argument that upholding the statute would lead, later on, to the suppression of valuable speech. The Act, they believe, is narrowly tailored to one particular type of lie.

As Justice Alito wrote, “in stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumental purpose that the First Amendment might protect. 

Tellingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is "none.”

The Stolen Valor Act decision, and other recent rulings that have placed restrictions on Congress’s power to, for example, regulate political speech, suggests that the Court will continue to view with great suspicion efforts to curb the right of individuals to speak their minds.  

Even when what they say is baloney.