Does the First Amendment Guarantee Our Right to Lie?
by Kelvin Wade
Last Monday the 9th Circuit Court of Appeals ruled that the Stolen Valor Act was an unconstitutional intrusion on free speech. The Stolen Valor Act was a law that, among other things, made it a federal crime to falsely claim a military record and medals you hadn’t earned.
The case involved a man named Xavier Alvarez who was elected to a water board in Pomona, California. At his first meeting, Alvarez said he served in the military and won the Medal of Honor. He was never in the military. The court ruled that Alvarez’s lie is protected speech.
The way the law is written, if you went outside and told people that you were a retired Marine and have been awarded a Purple Heart, you’ve committed a federal crime. This is what the courts found unconstitutional. Just publicly uttering a lie is protected speech.
This is distinct from fraud, which usually requires some other act in order to commit the crime. Just saying you’re a former _____ to impress someone isn’t a crime.
Setting aside whether the law should exist or not, I was struck by what the court had to say about lying in general. Chief Judge Alex Kozinski wrote, “Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship.”
The court says lying is an “integral part” of human dialogue. We wouldn’t say this to our kids but it’s true.
People lie about their age and their income when trying to pick up the opposite sex. I had friends who used to pass themselves off as professional football players in clubs in order to pick up women. And of course they lie to cover affairs.
Who has their accurate weight on their drivers’ license?
People routinely rewrite their own history in their heads. Shameful parts of our pasts are minimized, while positive aspects are exaggerated and sometimes fabricated.
I had a friend whose father made some awful chili. Not wanting to hurt the old man’s feelings, he told his dad it was good. That gave his dad the green light to make the chili all the time and finally, he had to tell him the truth.
Most of us have ducked a phone call with a lie. We’ve skipped engagements we didn’t want to attend with lies.
Of course not all lies are equal. “No, that dress doesn’t make you look fat” isn’t on the same level as “Of course you’re the father of the baby.”
There are the lies told on resumes and applications. While potential employees often pad their skills in order to get hired, companies and corporations lie as well. They may misrepresent the workload and imply flexibility and benefits that never come to pass.
When corporations run afoul of the law, lying, and minimization are to be expected. Wikileaks revealed that the operators of the earthquake/tsunami damaged Fukushima Daiichi nuclear plant has a history of falsifying safety reports.
And of course, governments and politicians lie.
There are times when serious lies must be told. When you have Jews hiding under your floorboards and the SS comes to your door asking if there are any Jews in the home, the right answer is no.
We’re probably more awash in lies than we realize.
So, no question that if someone lies about military service and medals, they’re despicable. But should it be a federal crime? That’s the question. Should Congress be deciding what lies are criminal?
A country that lets its citizens practice free speech by burning the flag and picketing funerals should be able to withstand cowardly lowlifes who lie about their background.