Holocaust deniers? asked Justice Ruth Bader Ginsburg.
People who lie about extramarital affairs? offered Justice Elena Kagan.
Justice Sonia Sotomayor tried out a personal example: “I take offense when someone I’m dating makes a claim that’s not true.”
At the end of the arguments in
U.S. v. Alvarez
, it was unclear how many of what Solicitor General Donald V. Verrilli Jr. called the court’s “slippery slope” questions were in the form of genuine concern or simply playing devil’s advocate.
The questions raise difficult issues, Verrilli conceded, but should not keep the court from upholding the Stolen Valor Act, which makes lying about receiving some of the nation’s highest military awards and decorations a crime, punishable in some cases by incarceration.
The statute is “about as narrow as you can get,” Verrilli said, and targets with “pinpoint accuracy” only “calculated factual falsehoods.” And the government since the days of George Washington has shown an interest in promoting valor and bravery in its military and keeping “charlatans” from usurping that glory.
It seemed from the general tenor of the arguments that the justices were looking for ways to agree with Verrilli that the exception to the First Amendment’s speech protections was narrow.
He seemed to have one sure supporter in Justice Antonin Scalia, whose comments were uniformly protective of the government’s interests.
“When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished” by those who falsely claimed them, Scalia said.
And Verrilli had one clear skeptic in Sotomayor.
“I thought the core of the First Amendment was to protect even against offensive speech,” she said. “You can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming that they got one.”
But the rest of the court seemed more conflicted. Chief Justice John G. Roberts Jr., for instance, asked Verrilli if the government could criminalize lying about whether one received a high school diploma.
“Where do you stop?” he asked Verrilli.
On the other hand, he pounced when the lawyer representing Xavier Alvarez, a California water district board member who was prosecuted for lying about receiving the Congressional Medal of Honor, took his turn at the podium.
“What is the First Amendment value in a lie, (a) pure lie?” Roberts asked Jonathan D. Libby, a federal defender from California.
Similarly, Justice Anthony M. Kennedy worried about the government prosecuting liars. “It presumes that the government is going to have a ministry of truth . . . and I just don’t think that’s our tradition,” Kennedy said.