Should Americans Go to Jail for Lying?

On June 28, 2012, in U.S. v Alvarez, the United States Supreme Court decided what was, in my humble opinion, among the most important of all the First Amendment Cases it has ever decided.

Alvarez, the defendant, had introduced himself, after being elected to a Water District Board as follows: "I'm a retired marine of 25 years.... (I)n 1987, I was awarded the Congressional Medal of Honor."

Alvarez's medal claim was false. He was prosecuted under a law which provides "Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ... shall be fined."

The press correctly reported the reversal of Alvarez's conviction, but failed to warn the American people what the Obama administration had argued to sustain the conviction. Had the court accepted the administration's position, the administration would have been handed the tool it needed to shut down and destroy Rush Limbaugh, Sean Hannity, the tea party and any other American it believed to be lying. Had the administration prevailed, it would have been in position to criminalize telling any simple lie.

The Obama administration, in the words of the court, cited to the court "language from some of this Court's precedents to support its contention that false statements have no value and hence no First Amendment protection."

The court added, "In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection."

The government then set out three examples of "false speech" being regulated.

-- False statements made to a government official

-- Perjury

-- False representation that one is speaking on behalf of the government

The court considered and rejected the government's notion that there should be a "new category of unprotected speech," pointing out that in all the examples given by the government, more was involved than a simple false statement. "These restrictions, however, do not establish a principle that all proscriptions of false statements are exempt from exacting First Amendment scrutiny. ... Perjury, for example, undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system. ...

"The Government has not demonstrated that false statements generally should constitute a new category of unprotected speech on this basis."

The court set out the logical consequences of the government's position.

"Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain.

"Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court's cases or in our constitutional tradition."

Finally, the Court put the kibosh on the administration's reach to limit the right of American's to engage in free speech.

"Although the objectives the Government seeks to further by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny. ...

"To recite the Government's compelling interests is not to end the matter. The First Amendment requires that the Government's chosen restriction on the speech at issue be 'actually necessary' to achieve its interest.

"The Government has not shown, and cannot show, why counter speech (refutation) would not suffice to achieve its interest. ...

"Once the lie was made public, (Alvarez) was ridiculed online, ... his actions were reported in the press, ... and a fellow board member called for his resignation. ...

"The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. ...

"Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person."

The Justice Department lawyers who advanced the arguments before the Supreme Court were trained lawyers. It is inconceivable to me that they did not understand that if they could put Alvarez in jail for telling a simple lie, they could use the power of the FCC to silence Limbaugh, Fox News, and all others who disagreed with the policy positions of the Obama administration. Had the court acceded to the administration's position, upon a simple majority vote of Congress, the hated Alien and Sedition Act of 1798 could once again have been made law, and the First Amendment rendered a dead letter.

And who would have had power to decide if a lie had been told? The government, of course!

Posted Online:  Feb. 02, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea