On October 17th the Court granted cert in U.S. v. Alvarez. The issue, in colloquial terms, could be: “Is lying protected by the First Amendment?” Xavier Alvarez publicly claimed he won the Congressional Medal of Honor; he didn’t. He lied. For that lie, he was charged under the Stolen Valor Act—a federal misdemeanor subject to imprisonment for up to six months unless the lie, as in Alvarez’s case, involves the Medal of Honor, then the confinement may be as long as one year. Alvarez pled guilty but also claimed that the law violated his First Amendment rights and the Court of Appeals agreed. At first blush, the ruling is surprising. It seems patently clear that individuals should not be able to claim honors they did not earn. Doing so debases and disrespects those fallen and surviving heroes who earned medals for bravery and selflessness while serving.
This case, then, could be an easy reverse for the Court. It is despicable behavior and violates the norms of our society. This type of speech can be distinguished from other hurtful speech, such as the political protests at military funerals protected by the Court last term (Snyder v. Phelps, with an 8 to 1 in favor of Phelps with Justice Alito dissenting). There is no advocacy of an idea here. It is simply a falsehood often used for material or professional gain. In Alvarez’s case, he was running for a local office. He used this lie to garner support among voters under false pretenses. Phelps, whether you agree with his message and methods or not, is using the funeral protests to make a political and religious point. And the latter type of speech fits in with the principles and precedents regarding free speech where the former does not. Fraud and perjury are other legitimate instances where the state prohibits lying. One could argue that his case is no different. As the dissent from the Court of Appeals en banc denial noted, “[T]he right to lie is not a fundamental right under the Constitution.” (638 F.3d 666; 39).
There are several reasons, though, why this case is not straightforward. The first indication that there is more than meets the eye here is that the original decision by the Court of Appeals produced a dissenting opinion. Judge Milan Smith wrote for himself and Judge Thomas Nelson. Judge Jay Bybee also dissented, arguing that the First Amendment does not cover lying. A dissent on the appellate court indicates a more difficult issue to settle. Second, the denial of rehearing en banc by the Ninth Circuit produced two concurring opinions and one dissent. Five other appellate judges joined Judge O’Scannlain’s dissent. Published concurring and dissenting opinions from a denial en banc review are extremely rare. The judges on the Ninth Circuit are split and strongly attached to their jurisprudential views. Given these facts, students of the Court should not be surprised that SCOTUS granted cert.
Third reason for the complexity of the case is that this case is reminiscent of Texas v. Johnson (1989). In that case, Johnson burned an American flag in protest outside of the Republican National Convention. He was arrested and found guilty of violating Texas’s flag desecration statute. Again at first blush, it seemed reasonable that the symbol of the United States—the flag—should be honored and respected. We are all taught to be careful when a flag is raised or lowered—it should not touch the ground. Our flag flies at half-mast to honor the dead. Our flag is saluted and serenaded at the beginning of most major sporting events. As late as 2006, polls showed that 45% of Americans favored a flag burning amendment. Flag desecration statutes tend to have popular support. Yet, the Court in Johnson found that flag burning was protected speech. As a symbol it retains the capability of showing pride or hostility quickly and clearly. Flying the flag or saluting the flag immediately suggests patriotism; burning a flag suggests disgust and unrest within the country. And so, while some of the justices may not have wanted to decide against Texas, as Justice Kennedy noted in his concurrence, “Sometimes we must make decisions we do not like.” For several congressional sessions after this decision, amendments to prohibit flag burning were proposed.
U.S. v. Alvarez is likely to be similar. Like flag desecration, the Stolen Valor Act had popular support. It was passed unanimously in the Senate in late 2006. And this is not the first time government has regulated lies (e.g., perjury and fraud). This act, though, criminalizes the lie itself rather than the result of the lie (e.g., defrauding an individual or interfering with criminal or civil procedures.) And, this, Judges Smith and Kozinski say, goes too far and tries to carve out too large of an exception to the free speech clause. It provides too much power to government to determine the scope of our speech. What other lies would be next? We are about to begin the nominating contests for the 2012 Republican ticket and then the general election. Candidates will cite statistics and take quotes out of context to gain political support. Politifact will check their veracity and will find that some statements are less accurate or honest and these findings will cut across party lines. Is hyperbole or selection bias in terms of statistics or background information illegal? The use of these lies is the same as in Alvarez. However, it is unlikely that Congress would regulate these lies. The Court is likely as sympathetic to the government’s interest as it was to Mr. Snyder’s, but will likely decide this case in a similar way and rule that the law is too broad as written to stand. What might be the most interesting part of the opinion will be who else Justice Alito might be able to convince to join him in his dissent this time around.
 This case was heard in the Ninth Circuit. I fully expect this case to be used by critics and candidates as another example of the Ninth being too liberal and too activist.
 http://pewresearch.org/pubs/32/no-clamor-for-amendment-from-flag-waving-public last access on October 28, 2011.