Amid the joy and fury that accompanied last Thursday’s announcement of the Supreme Court’s 5-4 ruling on the Affordable Healthcare Act, little attention was given to another ruling handed down that day. It's called United States v. Alvarez, in which the court struck down in a 6-3 decision the Stolen Valor Act of 2005.
The Stolen Valor Act was a well-intentioned but profoundly misguided attempt to criminalize lying about having received military honors. The plaintiff in the case was Xavier Alvarez, a former Three Valleys Municipal Water District Board member, and a chronic liar.
The many lies that Mr. Alvarez has told over the course of his personal and professional life include calling himself a 25-year veteran of the Marine Corps, a recipient of the Congressional Medal of Honor, and a former Detroit Red Wings player. While all three statements are false in their entirety, the second was actually a federal crime. The sheer magnitude of the lies, and the public forums in which he proclaimed them, should have been hints that Mr. Alvarez has only a tenuous relationship with reality.
After a guilty plea, Mr. Alvarez was sentenced to three years of probation and given a $5,000 fine under the Stolen Valor Act, but chose to appeal the conviction on constitutional grounds. On Thursday he was vindicated in the highest court of the land. In the plurality opinion (which was joined by Roberts, Ginsberg, and Sotomayor; Kagan joined Breyer on a concurring opinion) Justice Kennedy wrote that demonstrably false statements are not inherently ineligible for First Amendment protections, and that an institution (like the U.S. military), unlike an individual, cannot claim defamation.
To uphold this law would have set a dangerous precedent. Some had argued that because he used his lies to be elected to public office, they amounted to criminal fraud. But criminalizing lies on the campaign trail, tempting as it is, would give the government (and thereby, the incumbent party) an enormous and unprecedented amount of power.
And what about Congress? What would we do with Senator Jon Kyl, who once, after stating erroneously that “abortion is well over 90% of what Planned Parenthood does” (it’s more like 3%), issued a press clarification that “his remark was not intended to be a factual statement”?
An old joke goes, “How can you tell if a politician is lying?” with the answer being, “His lips are moving.” But the truth is that these laws do have a chilling effect that is hard to measure, but is clearly a threat to a free and open society. Justice Kennedy observed that as the law was written, the Stolen Valor Act “would apply with equal force to personal, whispered conversations within a home.” Is that really the sort of power we want to give over to our government?
Like so many rulings that protect our rights, this one comes at the cost of sparing punishment for an individual most of us would like to see punished. But Alvarez’s punishment should -- and will -- come in the court of public opinion. (Although one might be glad to learn that Alvarez just finished serving three years in prison for claiming a non-existent wife as a dependent on his health insurance forms).
Lying about military service is a shameful and ugly act deserving of public ridicule. We in the public and the media should call out all liars, whether they lie about their policies, their opponents, their past, or the empirical facts that should be the framework for our political debates.
I’ll start: on Monday, on CNN, Rep. Marsha Blackburn (R-TN) echoed Gov. Scott Walker and Rush Limbaugh, calling the ACA “the largest tax increase in history.” In fact, the CBO projects that the individual mandate penalty will raise $27 billion over the next ten years, making it (relative to GDP) roughly 2% as large a tax increase as President Reagan’s Tax Equity and Fiscal Responsibility Act of 1982.
To call it the biggest tax increase in history is the congressional equivalent of claiming to have played for the Detroit Red Wings.
Nathan Kohlenberg is Truman's Policy Fellow.
