The reporting of Garrett Epps and Dahlia Lithwick suggests that the lawyers representing Xavier Alvarez — the habitual liar convicted of violating the Stolen Valor Act — had trouble coming up with a decent response to Antonin Scalia’s assertion that “there is no First Amendment value in falsehood.” But whether he was able to convince the Court, I think the argument that the Stolen Valor Act is inconsistent with the First Amendment is very strong.
If PolitiFact has taught us anything else — and it hasn’t! — it’s that applying Scalia’s logic as a general principle would subvert fundamental First Amendment values. If it were a criminal offense to tell lies about political opponents, say, we could all end up in jail for accurately describing the consequences of Republican policy proposals if people like the editors of PolitiFact were in the DAs office and the jury. Scalia might respond that the editors of PolitiFact are just idiots who can’t distinguish between a lie and a normative disagreement, which is true enough but isn’t an adequate response — what constitutes a lie and what constitutes a mere reasonable disagreement is often a point of political contestation. Some supporters of the Sedition Act of 1798 saw it as progressive because — in contrast to British law at the time — truth was permitted as a defense against sedition prosecutions. Only this protection turned out to be essentially worthless, because the Federalist judges applying the law took the virtue and goodness of Federalist politicians to be an unassailable fact. Among other things, the First Amendment presupposes that some things that are considered truths will turn out not to be. As Epps and Lithwick both imply, the concept of “breathing space” is a very important one; criminalizing lies would inevitably mean that some true and some defensible statements will be treated as criminal.
So if it can’t be consistent with the First Amendment for mere lies by individuals (as opposed to actual fraud or commercial misrepresentation) to be made illegal, I think we can see the Stolen Valor Act as similar to the flag-burning statutes the Court has held to be unconstitutional. The government seems to be saying here that while just bragging about things you did that you haven’t actually done can’t be made criminal, it can be made criminal to lie about military achievements, because this is uniquely unpatriotic or contrary to national values. But this fundamentally seems like a viewpoint-based restriction to me. The narrower version that Congress is prepared to pass — which makes the lies criminal only if they are made in the service of material gain — strikes a much balance that is much more protective of First Amendment values. Harmless lies, even about military honors, shouldn’t be criminalized, and to do so is inconsistent with the First Amendment.