29 June 2012
Stolen Valor: the right to lie vindicated
Nearly lost in the hubbub over the Supreme Court's ruling in favor of Obamacare's individual mandate was its decision on the "Stolen Valor" law that had criminalized false claims of military service and honors. By a 6-3 margin, the justices struck the law down. In the lead opinion, Justice Kennedy affirmed a Constitutional right to lie. Congress can only make a law against lying, Kennedy wrote, when the lie is told for "material gain," e.g. to receive veteran's benefits. As written, the Stolen Valor law was too sweeping for his taste. The three most conservative justices -- Alito, Scalia and Thomas -- voted to uphold the law, Alito in the official dissent making a telling comparison to the protection the law grants manufacturers of luxury brands against counterfeit knock-offs. The three dissenters accept the premise that lying about heroism debases the entire system of military honors. Alito argues that the First Amendment doesn't protect lies that cause "real harm" or "serve no legitimate interest." The Court leaves us to weigh the competing standards of "real harm" and "material gain." My gut feeling is that the conservatives have the better of the argument this time. Kennedy claims that it should be sufficient for society to shame someone caught in a lie, but I wonder whether society can be depended upon to do that in the absence of an objective sanction like the Stolen Valor law, or an agreement with the minority that fraudulent claims cause "real harm." However, I'm curious to know whether Alito, Scalia and Thomas would apply their principle across the board, condemning not merely false claims of service and honors but any "false factual claim" in a public context. Let's not ask for too much here; there should be some leeway for even paranoid speculation in some matters. But when someone makes a claim opposed to verified truth, will the dissenters accept that "real harm" has been done? I suppose we'll have to wait for Congress to write another law to find out.