Lies, Damned Lies, and Free Speech (Part 1)

I have always prided myself on being a defender of free speech. At times I’ve referred to myself as a “First Amendment hawk,” because I rarely find a situation in which clamping down on speech is justifiable. All of the recent Supreme Court pronouncements on free speech that have been so controversial – striking down limitations on political speech (Citizen’s United), hateful funeral speech (Snyder), “crush” videos (Stevens), and violent video games (Brown) – are cases I think the Court got right. Hell, I don’t think the Supremes go far enough when it comes to something like obscenity. The answer to bad speech is more speech, not regulation.

But lately I’ve been wondering why I subscribe to that viewpoint. More to the point, is my position on free speech issues really a principled one? Or is it more based on the practical concerns of whomever was doing the censoring not getting it right? I’ll talk more about that in the next post. But first, I want to talk about an upcoming Supreme Court case that brings the principle/practical issue into sharp focus.

Next week the Court will hear oral arguments in US v. Alvarez, a criminal case out of the Ninth Circuit. Here’s how Alvarez’s counsel – defense counsel (and a federal defender colleague of mine), keep in mind – starts his brief:

Xavier Alvarez lied. He lied when he claimed to have played professional hockey for the Detroit Red Wings. He lied when he claimed to be married to a Mexican starlet whose appearance in public caused paparazzi to swoon. He lied when he claimed to be an engineer. He lied when he claimed to have rescued the American ambassador during the Iranian hostage crisis, and when he said that he was shot going back to grab the American flag. A colleague was being charitable when he said, ‘I think after anyone meets Mr. Alvarez for the first time, one questions the
veracity of his statements.’

It was another lie that got Alvarez in trouble, when he stood up at a meeting of a local water board (of which he was a member) and claimed to be a Marine who was awarded the Congressional Medal of Honor in 1987. As a result, he was charged with violating the Stolen Valor Act, which makes it a crime to:

falsely represent . . . verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.

Alvarez got nothing out of his lie. It didn’t provide him any kind of financial benefit. He didn’t get a better parking place because of it. He just puffed up his own self image (one which those around him knew was inflated anyway). Should that be a crime?

The Ninth Circuit said no. The Stolen Valor Act is a content-based restriction on speech and must therefore satisfy strict scrutiny, the highest level of review when fundamental constitutional rights are involved. False statements in general weren’t excluded from First Amendment protection historically (aside from fraud, libel, and slander, which all lead to tangible harms) and the Act itself wasn’t narrowly tailored to address the problem at which it was directed.

That was the initial opinion of the court, which did prompt a dissent. The Government sought a rehearing en banc.* It was denied, but the denial itself prompted several interesting opinions. In and amongst those opinions was a concurrence (in the denial of the rehearing petition) from Chief Judge Kozinski, who mounted a spirited defense of lying:

So what, exactly, does the dissenters’ ever truthful utopia look like? In a word: terrifying.
If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes. 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, subject only to the rubber stamp known as ‘rational basis review.’

* * *

Saints may always tell the truth, but for mortals living means lying.

All right, “defense of lying” isn’t quite right. He makes good points, though. A world without any of the polite bullshit we toss at each other would be pretty horrible. Although I think there are deep flaws with the thought experiment that was The Invention of Lying,** its portrayal of a world where everyone is brutally honest with each other, and therefore pretty miserable, seems spot on.

What does that have to do with a principled versus practical view of free speech? Because the arguments on both sides of the Stolen Valor Act issue (though not exactly the ones made by the parties) breakdown along those lines. On the one side, the argument is that knowing false statements have no value and therefore should be regulated because of the harm done. On the other side, the argument is not only do those statements have some value, but regulating them would bring the power of the state into play in ways that will be abused. In other words, it’s a mixture of principle and practicality.

Which objection to things like the Stolen Valor Act gets us the farthest? Does it really make a difference in the end? And if so, what is it? I’ll pick up those questions in the next post.

* “En banc” means review by the entire court, as opposed to the usual three-judge panel. However, the Ninth Circuit is so large that en banc review is really just review by a larger panel (upon which the Chief Judge always sits).

** Funny movie, with lots of great bits, but I question the underlying conclusion that a world without lying means a world without fiction. Fiction, by definition, is not an attempt to accurately depict actual events. Everyone knows going in that the story is not (to cop a phrase from hearsay law) “presented for the truth of the matter asserted.” On the other hand, the idea that religion is spawned only after lying is discovered seems completely on target.