The right to lie movement

A few months ago I took notice of a George Will column rooting for the Supreme Court to strike down the so-called "Stolen Valor" Act, under which a small-time California politician was convicted for falsely claiming that he had been a Marine and had received the Medal of Honor. The Court will hear the convict's appeal this week, inspiring Berkeley professor William Bennett Turner to write an op-ed for the New York Times against the controversial law. Noting that the act makes it illegal for anyone, not just politicians, to claim military honors fraudulently, Turner questions whether the defendant's "harmless fibbing" actually harmed anyone else. Despite the Times's column header question, "Is There a Right to Lie?" Turner argues that the case should not be about whether the Constitution entitles us to lie in public.

Rather, it’s a question about the scope of the government’s power over individuals — whether the government can criminalize saying untrue things about oneself even if there is no harm to any identifiable person, no intent to cheat anyone or gain unfair advantage, no receipt of anything of value and no interference with the administration of justice or any other compelling government interest. The court should rule in favor of Mr. Alvarez. Harmless fibbing should not be a federal offense. 

The law itself doesn't claim a public interest in truth but assumes that lies about military service and honors by anyone harm the integrity of those honors. But Turner, like Will, worries that upholding the Stolen Valor Act could have a chilling effect on political discourse.

The Stolen Valor Act is also dangerously broad: it puts satire and parody at risk of criminal prosecution. The comedian Stephen Colbert could not safely perform a skit in which his blowhard patriot persona claimed to have a medal. The act doesn’t require proof that anyone believed or was deceived by the false claim.

If the Supreme Court were to accept the government’s argument, other disconcerting legislation could easily follow. Congress could enact a law that criminalized false claims by political candidates about their qualifications for office, or false claims about their opponents. Surely the government has an “important” interest in preventing voter deception. But as much as we want to encourage factual accuracy in our politicians, do we really want the government to prosecute, for example, Senator Marco Rubio, the Florida Republican who falsely stated on his Senate Web site that his parents moved from Cuba after — rather than before — Fidel Castro took power? Who among us has not said things about ourselves that are untrue? Who has not exaggerated or embellished details to tell a better story? The public humiliation that follows such exposure is punishment enough. 

In an ideal polity, a politician caught in a lie would suffer shame enough to ruin his career. Now, however, we should wonder whether any public humiliation follows the exposure of a lie. Turner's own position is unclear. Does he think that Rubio was humiliated, or should have been, when his lie was exposed? Should he have lost his election? The fact is, he did not. In fact, some people consider Rubio vice-presidential timber. Does Turner agree with that assessment? His own stance seems to draw a distinction between kinds or degrees of lying. He doesn't appear to want the people to act on an assumption that "harmless fibbing" or "embellish[ing] details to tell a better story" prove a politician's willingness to deceive the public on more serious matters.  At most, he would permit people to act on such suspicions only in the voting booth. Can they be trusted to do so -- or must they be trusted regardless of probability? I can understand a present-day American aversion to imposing eligibility tests for political candidates beyond the existing constitutional requirements, or to giving anyone the Iranian-style power to disqualify candidates. But if any test could be proven objectively immune from partisan bias, it should be a test of basic truthfulness -- or "truthiness" in the case of the theoretically imperiled Colbert. If anything, discussion of this case convinces me that the Stolen Valor Act itself is rather frivolous. It could well be struck down without sacrificing the inferred principle that so troubles an apparent free-speech absolutist like Turner. If he worries about the consequences should the law be upheld, he should also worry about the implications of his own defense of the right to lie.