How Much Lying Before It's Criminal?

Bullshitting your personal history is almost a national pastime. Heck, we lawyers even have a nice word for it - "puffery" - and it generally won't get you in trouble. Sure, you shouldn't do it under oath, that's perjury. But what about just out in the world - are certain lies so grave that the telling of them should be a crime?

That's the topic of Adam Liptak's column in today's New York Times. It's about Xavier Alvarez, a California resident who told a local government agency - on which he now serves - that he was a retired Marine and had received the Congressional Medal of Honor in 1987. Only he hadn't. And now he's facing years in prison, charged with violating the Stolen Valor Act of 2005. That's right - Congress has passed a law making it a felony to claim to be something your aren't.

Alvarez, who is represented by the FPD in Los Angeles, has moved to dismiss the charge on the ground that the statute violates the First Amendment:

Some First Amendment experts worry that criminalizing speech about symbols is a dangerous business and is reminiscent of laws against flag burning that the Supreme Court has held unconstitutional.

'If the government cannot under the First Amendment compel reverence when it comes to our nation’s highest symbol,' asked Ronald K. L. Collins, a scholar at the First Amendment Center in Washington, 'why then can it compel reverence when it comes to lesser forms of symbolic expression?'

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Free speech experts say the motion is unlikely to succeed.

'On the other hand,' Eugene Volokh, a law professor at the University of California, Los Angeles, wrote on his blog, The Volokh Conspiracy, 'the legal issue is not as clear as one at first might think.' He cited the somewhat muddy Supreme Court jurisprudence in this area and an October decision of the Washington Supreme Court that struck down a state law making it illegal for politicians to lie about candidates for public office.

'The best remedy for false or unpleasant speech is more speech, not less speech,' Justice James M. Johnson of the Washington Supreme Court wrote. It is hard to muster much sympathy for Mr. Alvarez. But it is easy to envision cases in which laws to protect symbols are misused.

It seems to me that Congress might actually have a legitimate interest in protecting the value of military honors. The speech at issue isn't illegal because it represents a particular point of view, but because it makes a demonstrably false factual assertion. That might be the key. Regardless of whether it can constitutionally enact that kind of law, one wonders if they have better things to do with their time.