Why the First Amendment protects liars

Xavier Alvarez’s lie began soon after he was elected on November 6, 2006, by a 48-vote margin, to the Three Valleys Municipal Water District Board in the Claremont, California, area.

In June 2007, the bespectacled Pomona resident, with a bushy dark mustache that practically devoured his face, was among a group of local officials who were on a tour of a Southern California Edison hydroelectric facility in the Sierra Nevada mountain range. During a breakfast on the first morning of the tour, Alvarez met Melissa Anne Campbell, a Southern California Edison project manager who was helping to organize the trip. Her coworkers had told Campbell that Alvarez was a former marine, so she informed Alvarez that she, too, had served in the US Marine Corps. Alvarez said that he had served for 29 years, retiring at the rank of sergeant major, and that he spent 25 of his years in Marine Force Reconnaissance.

But none of those stories were true. Not in the slightest. Alvarez never even served in the military. Having just met Alvarez, Campbell had no way of knowing that he had made all of this up. And his lies to her deepened later that day.

“Do you know who I am?” Alvarez asked Campbell on the bus ride to the hydroelectric plant.

Campbell said that she did not.

“I am a Congressional Medal of Honor winner,” Alvarez said. The claim was a particularly stunning one, as the Congressional Medal of Honor is the US military’s highest honor. As of March 2022, only 66 of the roughly 3,500 Congressional Medal of Honor recipients were living.

The next day, Alvarez told other people on the trip that he was a Gulf War veteran who had served in Iran, and that he had also been a firefighter and a professional baseball player. And on a helicopter landing pad tour later that day, Alvarez said he had been on three Southern California Edison helicopters that had crashed. Campbell and her coworkers knew that this was a lie, as the only two major helicopter crashes in the company’s history had led to the death of everyone on board. Campbell’s supervisors realized that Alvarez was not telling the truth, but they warned her to stay away from the local water district board member. Soon after returning from the three-day trip, Southern California Edison suspended and then fired Campbell.

Not only was Alvarez’s lie an insult to all US soldiers who had risked their lives in service, but it also was a federal crime. The Stolen Valor Act, signed into law just months earlier, criminally prohibited people from falsely representing that they “have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” The law was not explicitly limited to defendants who lied with a specified state of mind. Congress passed the law out of concern that some people falsely claim to have received the highest military honors. “These imposters use fake medals — or claim to have medals that they have not earned — to gain credibility in their communities,” Senator Kent Conrad, the bill’s author, said as he introduced the bill on the Senate floor on November 10, 2005.

The Stolen Valor Act means that simply by uttering his lies about having received the Congressional Medal of Honor, Alvarez could face up to a year in prison. The Stolen Valor Act does not require any proof of the speaker’s intent or of any harm that the lie may have caused. All that is needed to send someone to prison is proof of a lie about receiving a military decoration. Fortunately for the Federal Bureau of Investigation, Alvarez would lie again, and this time the lie would be recorded.

On July 23, 2007, less than a month after the Southern California Edison trip, Alvarez attended a joint meeting of his water board and the neighboring Walnut Valley Water District Board at the Walnut Valley headquarters. At the start of the meeting, Edwin Hilden, a director of the Walnut Valley board, introduced Alvarez as a new member of the Three Valleys board. Alvarez asked if he should say “a little something about myself.”

“If you want,” Hilden replied.

“I’m a retired marine of 25 years,” Alvarez said. “I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

About two months later, Alvarez’s lie caught up with him. Based on his statement at the public meeting, federal prosecutors charged him with violating the Stolen Valor Act.

Rather than resting on the claim that he didn’t lie, Alvarez’s federal public defenders asked Judge R. Gary Klausner to dismiss the case on constitutional grounds. Alvarez’s lawyers argued that the Stolen Valor Act violated the First Amendment because the law criminalized Alvarez’s lie without requiring any evidence of intent, harm, or benefit to Alvarez. Political speech, Alvarez’s lawyers argued, deserves the greatest protection under the First Amendment. 

Klausner, a Vietnam War army captain whom President George W. Bush appointed to the Los Angeles federal court in 2002, did not think that the First Amendment protects lies such as Alvarez’s. In a three-page order on April 9, 2008, Klausner denied Alvarez’s motion to dismiss the criminal case, reasoning that Alvarez knew he was lying and intended to do so. “The content of the speech itself does not portray a political message, nor does it deal with a matter of public debate. Rather, it appears to be merely a lie intended to impress others present at the meeting,” Klausner wrote. “Such lies are not protected by the Constitution.”

Alvarez appealed to the US Court of Appeals for the Ninth Circuit, requesting a ruling that the Stolen Valor Act’s absolute prohibition of lying is unconstitutional. Among his defender Jonathan Libby’s arguments for Alvarez was that the Stolen Valor Act’s lack of a state-of-mind requirement rendered the law unconstitutionally overbroad. In other words, its scope was so broad that it encompassed speech protected by the First Amendment. “It applies not only to mistakes but to innocent bragging as well,” Libby wrote in Alvarez’s Ninth Circuit brief. “It includes satire. It would apply to a person who claimed he had received a military decoration while playing a role in a play or movie.”

The US government fought this challenge, arguing in its brief to the Ninth Circuit that “no protection exists for a deliberate lie, even in political speech.”

The case went to a randomly selected panel of three Ninth Circuit judges: Thomas G. Nelson, who was appointed by President George H. W. Bush in 1990, and President George W. Bush appointees Jay Bybee and Milan D. Smith Jr. (Full disclosure: I clerked for Judge Smith after he ruled on Alvarez’s case.) At oral arguments on November 4, 2009, Libby pushed back on the government’s argument that lies are not constitutionally protected. “People lie all the time, and I think all Americans believe that simply telling some of these lies are fully protected under the First Amendment,” Libby said. “We tell lies to each other, sometimes to whoever will listen. We tell lies about personal facts about ourselves, about age, marital status, sexual orientation. These are all facts that people say all the time. Parents tell lies to their children. Santa Claus. The Easter Bunny. We try to make people feel better about themselves by lying.”

The judges wanted to know how the public benefits from Alvarez’s ability to freely lie about receiving the Congressional Medal of Honor. “All I can say is that the First Amendment, especially when read in the context of all of our rights under the Constitution, protects individual autonomy,” Libby said. “And sometimes the protection of individual autonomy requires that we accept the right to be inaccurate and even to lie.”

Two of the three judges agreed with Libby and ruled that the Stolen Valor Act was unconstitutional. Smith, joined by Nelson, rejected the government’s claim that false statements have no value at all. Smith acknowledged that the government has the power to regulate some dangerous or harmful lies, such as fraud, but it does not have an absolute and general power to prohibit all lies, regardless of harm. “Satirical entertainment such as The Onion, The Daily Show, and The Colbert Report thrives on making deliberate false statements of fact,” Smith wrote. “Such media outlets play a significant role in inviting citizens alienated by mainstream news media into meaningful public debate over economic, military, political and social issues.”

Smith emphasized that he detested Alvarez’s lies but that allowing the government to prohibit them would open the door to other, more nefarious speech restrictions. “We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths,” Smith wrote. “But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment.”

The federal government asked the Ninth Circuit to vacate Smith’s opinion and rehear Alvarez’s appeal before a panel of 11 Ninth Circuit judges. It was denied. Smith and Chief Judge Alex Kozinski wrote statements in support of the denial. Kozinski, a Ronald Reagan appointee, emigrated to the United States from Romania as a child with his parents, who survived the Holocaust. (He would resign his judgeship in 2017 amid former law clerks’ accusations of sexual harassment.)

While often a staunch conservative, Kozinski was suspicious of providing the government with excessive power to restrict civil liberties. Allowing the government to prohibit any statements only because they are false is “terrifying,” Kozinski predicted. “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,” he wrote. “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.” To Kozinski, affirming Alvarez’s conviction would open the doors to criminalizing the quotidian lies that are the foundation for daily life.

After the federal prosecutors struck out in the Ninth Circuit, they asked the US Supreme Court to hear the appeal of the case. This was no longer just about whether Alvarez would pay a fine and perform community service. The nation’s largest federal appellate court had struck down the Stolen Valor Act and made it more difficult for the government to impose consequences for false speech.

US Solicitor General Donald Verrilli Jr., President Barack Obama’s top advocate before the court, argued that the Stolen Valor Act “plays a vital role in safeguarding the integrity and efficacy of the government’s military honors system.” Verrilli managed to persuade the court to hear the case. Alvarez’s bloviation at a local water district meeting would allow the highest court in the United States to determine whether the First Amendment protects lies. And in an indication of the case’s importance to the federal government, Verrilli, rather than one of his roughly 20 lawyers, argued the case himself.

The argument took place on the brisk morning of February 12, 2012, in the Supreme Court’s grand courtroom. Verrilli, who had argued more than a dozen cases before the court, stood to begin. He kicked off the argument by telling the justices that the Stolen Valor Act is not broad but “narrowly drawn” and “carefully limited.” But he only got a few sentences into his argument before Justice Sonia Sotomayor interrupted. “General, may I pose a hypothetical,” she asked slowly, not waiting for a response before presenting him with her scenario. “What if a Vietnam War protester had held up a sign that stated, ‘I won a Purple Heart — for killing babies,’ when in fact that protester knew he had not won the military honor? Would that person be liable under the Stolen Valor Act?”

“I think, Your Honor, it would depend on whether that was, that expression, was reasonably understood by the audience as a statement of fact or as an exercise in political theater,” Verrilli replied. “If it’s the latter, it’s not within the scope of the statute, and it wouldn’t be subject to liability.”

Before Verrilli could complete his sentence, Sotomayor cut in. “Somewhat dangerous, isn’t it, to subject speech to the absolute rule of no protection?” she asked. “Which is what you’re advocating, I understand, that there are no circumstances in which this speech has value. I believe that’s your bottom line.”

“What I would say with respect to that, Your Honor, is that this Court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no First Amendment value for its own sake,” Verrilli said.

Justice Anthony Kennedy jumped in. “Well, I’m — I’m not sure that that’s quite correct,” he began. At the time, Kennedy was the most moderate member of the court, often the “swing vote” that determined which side of an otherwise divided Supreme Court would prevail. He pointed to a page in the government’s brief that claimed that false speech had no value. “I think it’s a sweeping proposition to say that there’s no value to falsity,” Kennedy said. “Falsity is a way in which we contrast what is false and what is true.”

Unlike Verrilli, Jonathan Libby was not a regular member of the Supreme Court bar. This was Libby’s first appearance before the justices, and he faced equally aggressive questioning from the justices. After Libby was four staccato sentences into his argument, Chief Justice John Roberts interrupted: “What is the First Amendment value in a lie, pure lie?”

“Just a pure lie?” Libby asked. “There can be a number of values. There is the value of personal autonomy.”

“The value of what?” Roberts asked.

 “Personal autonomy, that we get—,” Libby said.

 “What does that mean?” Roberts interrupted.

“Well, that we get to — we get to exaggerate and create—,” Libby said. “No, not exaggerate — lie,” Roberts said, with more than a hint of exasperation in his voice.

“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,” Libby said. “Samuel Clemens creating Mark Twain. That was creating a persona, and he made things up about himself—”

“Well,” Roberts said, his voice shooting up an octave, “but that was for literary purposes. No one is suggesting you can’t write a book or tell a story about somebody who earned a Medal of Honor and it’s a fictional character, so he obviously didn’t. It just seems to me very different.”

“Perhaps,” Libby conceded, “but there are other things, in addition to the fact that people tell lies allows us to appreciate truth better.”

Justice Samuel Alito jumped in, asking whether there is “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. There’s a personal — the First Amendment protects that?”

“Yes, your Honor,” Libby responded, “so long as it doesn’t cause imminent harm to another person or imminent harm to a government function.”

Four months after oral arguments, six of the nine Supreme Court justices voted to uphold the Ninth Circuit’s ruling for Alvarez, that the Stolen Valor Act is unconstitutional. Kennedy, writing for himself, Roberts, Sotomayor, and Ruth Ginsburg, wrote the plurality opinion, in which he emphasized that the government’s argument that false statements are not constitutionally protected relies only on cases involving “defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation.”

Pointing to George Orwell’s 1984, Kennedy wrote of the dangers of giving the government broad authority to impose criminal penalties on lies no matter where, why, and to whom they were made. “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth,” Kennedy wrote. “Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out.”

Key to Kennedy’s ruling was the public attention and ridicule that Alvarez received for lying. “The remedy for speech that is false is speech that is true,” Kennedy wrote. “This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”

Alvarez left some questions open. None of the justices suggested that the First Amendment protects all false speech. Although the plurality, combined with the concurrence, stood for the general proposition that false speech is not categorically exempt from the First Amendment’s protection, a majority of the court did not clearly identify how courts should analyze false speech restrictions. A year after the opinion, Congress passed the Stolen Valor Act of 2013, which imposes criminal penalties on a person who “with intent to obtain money, property, or other tangible benefit, fraudulently holds oneself out to be” a recipient of a military honor. As of 2022, the amended law has not been struck down as unconstitutional.

Underlying the entire prosecution of Alvarez — from the initial FBI investigation through the Supreme Court argument — was the implication that liars such as Alvarez are an inevitable by-product of free society. If we will allow a free flow of truthful speech, the theory goes, we must tolerate the occasional (or more than occasional) lie.

Copyright 2023. Published with permission of Johns Hopkins University Press.