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Thursday, October 20, 2016

June 29 (Bloomberg) — Lost in the hoopla over the U.S. Supreme Court’s ruling upholding the Affordable Care Act is a fascinating and important free-speech decision that is one of the oddest in the already strange history of the First Amendment.

The case, Alvarez v. United States, was all about lies. The first sentence of Justice Anthony Kennedy’s plurality opinion is an instant classic: “Lying was his habit.”

This is a substantial understatement. Xavier Alvarez was a fabulist straight out of Mark Twain. He “lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico.” When newly elected to the local water board in Claremont, California, Alvarez falsely told his new colleagues that he was a retired Marine who had received the Medal of Honor after being wounded repeatedly by the same aggressor.

This last lie was unlike the others. It violated the Stolen Valor Act of 2005, which made it a crime to lie about decorations received in military service. It was already a crime to lie about military service in order to defraud the government or private person of some gain. The Stolen Valor Act criminalized the mere act of lying about military decorations, full stop. No intention to defraud was required.

Alvarez seems not to have sought to gain anything by his lie other than esteem. This made him a perfect test case for a question that previously tormented no one but law professors and their students: Does the right to free speech extend to lying for no otherwise unlawful gain?

On the surface, the issue might seem straightforward. With the possible exception of Justice Hugo Black, who liked to say that “Congress shall make no law” really meant no law at all, no Supreme Court justice has ever believed free speech to be absolute. At times, the court has said that certain kinds of speech — such as obscenity, libel and the ill-defined “fighting words” — deserve no protection whatsoever. Although that categorical approach has faded from the court’s jurisprudence, the justices still believe that speech must have some value to merit protection under the First Amendment.

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  • sigrid28

    But combine this precedent, designating lying for self-aggrandizement as a form of protected free speech, with Citizens United 1.0 and 2.0 (now Montana’s for sale!); and we have further evidence of the Supreme Court’s contribution to the media circus building up around this year’s elections, which gives every indication of becoming the IMAX of lying. I guess we’ll just “have to shoulder the burden of condemning ” one-by-one all of the enormous, deafening lies blaring out at us from television and computer screen. How is the average American voter supposed to do that, reclining in his Lazyboy or curled up in her bed with a laptop, after a hard day’s work at minimum wage? Keep a score card, racing back and forth from PolitiFact, or fill out a bracket, like everybody does for March Madness? Would that American voters followed elections as avidly and as cleverly as they do sports or even “American Idol.” I’ll grant that the winner of “American Idol” is usually a WGWG (white guy with a guitar), but at least millions of viewers go to the trouble of voting. They think their votes will count, because they have the expectation that a talent competition or basket ball championship they will follow the rules. From Super PACs, however, we can anticipate mainly the humiliation of being duped by wealthy power seekers who refuse to identify themselves and cynically count on us to take lies at face value–and then thank them for disrespecting us by giving away our votes or not voting at all. Perhaps the Supreme Court expects to toughen us up through this exercise. We can only hope that being awash in lies will teach us a thing or two.

  • Of course they can’t make lying a crime! If they did, they would have to charge all lawyers, and politicians with the crime of lying!!

  • hilandar1000

    How about the whoppers the republicans were all spouting about the largest tax increase in the History of the US for all citizens — when they were talking about the mandate in the Affordable Heath Care Act? Of course, it’s ridiculous, but some people actually believe that. To me, that is a prime example of a criminal act — to deliberately mislead the public to get votes for their party.

    • agentrene

      I agree 100%. We should march on this one. How could it not be a crime when you have these politicians spending hundreds of millions of dollars spewing lies about the president and his policies, and on top of that trying to block voters from voting in this one of the nations most important elections. And to your most important point there are people out there that believe this nonsense. I wait for the day that that happens(criminalizing, out right lying, to gain a political position) , can you imagine political ads and rhetoric that actually reflect the truth of the candidates. What a dream that would be…….., It would actually make it easy to make a decision at election time. can’t wait………….I’ll vote for that….

  • gargray

    If lying is free speach why do they put tyou in jail for lying to a grand jury. If you lie to a judge you are in contempt of court and they lock you up. Remember Satan is the father of the lie.

    • Landsende

      Or when Bernie Madoff lied and said he was investing investors money and went to prison. This ruling puts the judicial system in a quandry. If people lie about committing a crime and lie to the courts can they be held accountable since its free speech. The Supreme Court is made up of intellectual lawyers that don’t have a lick of common sense. Its time to have term limits for them.

      • metrognome3830

        I think each lie has to be judged on whether if is just a harmless lie or if it caused serious physical, mental or financial damage. Bernie Madoff’s lying caused some serious financial hardships to a lot of people. Alvarez, on the other hand harmed only himself. He lied to make himself seem more important and ended up looking like a stupid jackass. My apologies to those jackasses who are smarter than Alvarez.

  • Wow, such nonsense. They basically talked in circles and decided the case on a circular conversation to nowhere. This is a very confused Court.

  • howa4x

    He must be a republican

  • bigspender7

    We finally have a good explanation for why the TEA PARTY is always spouting off about the constitution.

  • If lying was a crime… no more Fox News.

  • If you think that lying is constitutionally-protected speech, try giving a cop a phony name, and then try explaining your actions to the judge. Good luck with that.

    The Chief Justice Of The Supreme Court said that ObamaCare was a tax, and that is the reason he approved it. But then again – what does he know about the law?

  • which brings us to whitewater-gate as they call it. having no case Starr tried to snare the president in a case under civil law he had to answer. of course he lied as most non perfect poeple would. but this was used in a grand jury investigation that returned no true bill. the evidence was presented to congress where it was protected from libel .as a result of this ruling the GOP should pay the us treasury and mr Clinton at least $70,000,000.

  • The manifestation of our right of freedom of speech as a RIGHT TO DECEIVE finds its roots in our pervasive CONSUMER CULTURE, which tolerates such things more than anyone who valued honesty would knowingly tolerate.

    • DurdyDawg

      And what can we do as ‘honest’ people? The liars know that you can’t prove them as being liars so you have to assume their telling the truth, then when the truth be comes known we can’t convince the masses because they look around them and say, “If he’s such a liar, why are so many voting for him?” then they go out and vote according to the masses without realizing that that’s what a lie can generate.

  • John Edkins

    I find the author’s article to be highly misleading – from its title to its several suggestions that Alvarez has done no harm, and that he has nothing to gain “other than esteem”. By his later question “Does the right to free speech extend to lying for no otherwise unlawful gain?”, the author again implies that Alvarez has nothing to gain and done no harm by his habitual lying. In the meantime we are treated to a host of irrelevant arguments, dishearteningly even to Supreme Court level, about benevolent or harmless lying that also misdirect the reader from the truth. Alvarez clearly has defrauded voters in getting himself elected to serve “in the public trust”. He seeks to advance his career through the esteem of others that he gains by his lying, and he cannot but do harm to the public trust while acting in such a manner while in office. No sane person would ever entrust public funds or decision processes to a habitual liar.

    It is quite clear to me that the author and the Supreme Court need to review the word “fraud” and drop all the frivolous and misleading chat about lying being protected under the first amendment. The issue is not whether a person is allowed to speak whatever they please – the issue is whether deliberate misrepresentation for career gain and injury to the public trust constitutes “fraud” and where in the laws our learned justices and lawyers can find redress for a public injured by such willful deceit.

  • R. Paul Williamson

    How about perjury, lying under oath? That is free speech also-the Government persecuted Roger Clemons unmercilessly on a issue they should not have cared about.