Then, Justice Sonia Sotomayor ups the ante with a TMI—Too Much Information. “Outside of the emotional reaction, where's the harm?” she asks. “And I'm not minimizing it. I too take offense when people make these kinds of claims, but I take offense when someone I'm dating makes a claim that's not true.” Sotomayor’s suitors are lying to her? (Or merely puffing?)
Verrilli replies, saying, “The honor system is about identifying the attributes, the essence of what we want in our service men and women—courage, sacrifice, love of country, willingness to put your life on the line for your comrades. … And for the government to say this is a really big deal and then to stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers.”
And so, at the halftime, we have Kennedy worrying about the truth of falsity, the chief justice fretting about academic liars, Ginsburg anxious about Holocaust deniers, Kagan worrying about lying politicians, and Sotomayor panicked about the passel of deceptive bachelors she keeps meeting on eHarmony.
It falls to Jonathan Libby, the attorney representing Alvarez, to defend the congenital liar. As he begins to speak, the chief justice stops him with this epistemological stumper: “What is the First Amendment value in a pure lie?” Libby replies, “There is the value of personal autonomy."
"The value of what?" asks Roberts.
"Personal autonomy," Libby says.
"What does that mean?" retorts Roberts.
“Well, when we create our own persona, we're often making up things about ourselves that we want people to think about us, and that can be valuable. Samuel Clemens creating Mark Twain.” Roberts says that this was for “literary purposes.” So Libby says, mysteriously, that “the fact that people tell lies allows us to appreciate truth better.”
Alito can’t take much more of this, asking, “Do you really think that there is a First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself, because that person would like to create a particular persona? Gee, I won the Medal of Honor. I was a Rhodes scholar, I won the Nobel Prize. …”
Justice Breyer: “Obvious example. Are there Jews hiding in the cellar? No.”
Chief Justice Roberts: “That’s not a statement about one's self!”
Justice Breyer: “Are you hiding Jews in the cellar?”
Kennedy and Libby tussle over whether a statute that criminalizes the wearing of false medals also implicates speech. Then Kagan asks Libby what types of truthful speech the Stolen Valor Act might chill. (Libby: None, at which point he has conceded the main argument for his side.) Breyer asks if there are less restrictive ways for the government to protect the integrity of military medals and Libby can’t quite name them. Scalia suggests maybe “giving a Medal of Shame to those who have falsely claimed to have earned the Medal of Valor?”
By the time Verrilli stands to deliver his rebuttal, Justice Kennedy wants to know whether the government can criminalize lying about college degrees and Kagan wonders whether the government can prohibit lies about extramarital affairs. Sotomayor worries about men who lie about having college degrees in order to induce young women to date them. And by the end of the morning it looks like the court may just find a way to uphold a narrow version of the law by reading into the statute all the constitutional bells and whistles that aren’t in the text. Alvarez’s attorney shouldn’t have been able to lose a case about a law that makes lying about medals a crime. Not in a country where you can constitutionally protest military funerals and burn flags. But he may well have done it anyhow.
Seriously, though. I did win the Medal of Honor.
Disclosure: I am on the boards of both the Thomas Jefferson Center for the Protection of Free Expression and the Reporters Committee for Freedom of the Press, both of whom filed amicus briefs in this case on behalf of Alvarez.
Correction, Feb. 22. 2012: The article originally referred to the Congressional Medal of Honor. The award is issued by Congress but is referred to only as the Medal of Honor.