By John Ensslin, 2011-12 SPJ President | July 3rd, 2012
A significant victory for the First Amendment drew scant attention last week, lost amid the barrage of well-deserved coverage given to the Supreme Court’s decision to uphold the Affordable Health Care Act.
On the same day, the court, in the case U.S. v. Alvarez, struck down the Stolen Valor Act, which made it a federal crime for someone to falsely claim to be a recipient of military honors, especially the Congressional Medal of Honor.
This was a case in which SPJ and a number of media organizations filed a friend of the court brief urging the justices to do exactly what they did in the name of protecting free speech.
This may seem like an odd place for us to be, defending the rights of someone accused of being a liar, but as so often happens in First Amendment cases, the people on the cutting edge of the law are not exactly role models.
Such is the case with Xavier Alvarez, a California man prosecuted after he described himself at a public meeting as a retired Marine who had won the Medal of Honor.
“Lying was his habit,” observed Justice Anthony Kennedy, who wrote the majority opinion. Kennedy noted that Alvarez also falsely had claimed to be a former Detroit Red Wing hockey player and that he had lied about marrying a starlet from Mexico.
But when he claimed to be a Medal of Honor recipient, that’s when Alvarez ran afoul of the law, and that’s where the slippery slope of a free-speech problem began.
There are forms of lying that are not protected by the First Amendment, the court noted. (Read the full opinion and related documents and friend of the court briefs, collected by SCOTUSblog.)
Perjury on a witness stand, for example, is a crime because otherwise it would threaten the integrity of any court proceeding.
And making false statements in a defamation case is not protected under the First Amendment.
But here there was no claim that Alvarez defamed anyone or spoke a falsehood under oath. He was prosecuted simply because he falsely claimed to have a medal.
That kind of content-based definition of speech as a crime was troubling to those of us who saw it as a dangerous precedent. What if the next set of laws criminalized falsehoods about some other topic?
Fortunately, a 6-3 majority of justices also saw the problem at the heart of this law.
“Permitting the government to decree this speech to be a criminal offense whether shouted from the rooftops or made in a barely audible whisper would endorse governmental authority to compile a list of subjects about which false statements are punishable,” Kennedy wrote.
“That governmental power has no clear limiting principal,” Kennedy said, conjuring up the image of “The Ministry of Truth,” from George Orwell’s novel “1984.”
Justice Stephen Breyer also saw another problem in his concurring opinion when he wrote, “the threat of criminal prosecution for making a false statement can inhibit the speaker from making true statements thereby “chilling” a kind of speech that lies at the First Amendment’s heart.”
Kennedy also pointed out there are remedies to counter such lying that don’t require criminalizing speech.
That’s where SPJ, journalists and other media advocates come in. There are quite a few reporters out there who have exposed the lies of individuals who have fabricated military records and honors.
There are also databases out there that seek to list the true Medal of Honor winners such as this one compiled by The Congressional Medal of Honor Society.
Whenever someone describes himself or herself in public as a decorated war hero, it should be a our habit to check out the claim.
That way we’re exercising our First Amendment rights to seek and report the truth while protecting the valor of those who rightfully earned that honor.
SPJ Notes….And speaking of true military heroes, be sure to tune in when you have a moment, to the two most recent podcasts of Studio SPJ. Host Holly Fisher has been interviewing winners of our Sigma Delta Chi Awards, both of whom profiled soldiers.
Here’s the link to a segment she did with Corinne Reilly of the Virginian-Pilot, who wrote about an Army medical unit in Afghanistan.
And here is a link to Holly’s interview with Sara Stuteville, who won for a story she did for Pacific Northwest magazine on a marine’s return to Iraq.
On a day when we celebrate our independence, I think it’s important to remember the sacrifices of those who fought to protect those freedoms. Have a safe and happy Fourth of July.