The First Amendment tolerates a lot of things. It allows the free exercise of religious beliefs some may find strange or offensive. It allows people to assemble and protest even if their cause is unpopular or contemptible. And it allows people to lie about their military record.
That was the decision of the U.S. Supreme Court last week, and it was entirely correct.
Few lies could be more disgusting than to say you risked life and limb for the protection of your nation, or that you earned a medal of honor reserved for the noblest acts of bravery. But the appropriate punishment for that is exposure, humiliation and loss of reputation, not a fine or time in jail. In the words of Justice Anthony Kennedy, who authored the 6-3 opinion, to make lying alone a crime "would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth." That was a clear reference to George Orwell's classic novel about totalitarianism, "1984."
The case at hand involved a pathological liar, Xavier Alvarez. He told people he played for the Detroit Red Wings hockey club. He said he had married a Mexican starlet. Then, when he became a member of a water board, he introduced himself in a public meeting by saying, "I'm a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy."
It was all pure fabrication. It was, Kennedy wrote, "a pathetic attempt to gain respect that eluded him." But Alvarez did not profit in any material way from the lies, nor could it be demonstrated that legitimate military heroes were in any way diminished by them. When Alvarez was exposed, he was forced to resign. He also was charged under a law that made such a lie criminal, and he was fined $5,000 and sentenced to three years probation.
The Supreme Court said public humiliation should have sufficed.
It must be noted, however, that the court let stand three instances in which it is constitutional to punish lies. The first is if the lie is to a government official about official matters. The second is perjury in a judicial proceeding, and the third is to falsely speak on behalf the government or to impersonate an officer. The court also said it would tolerate laws that punished lies that could be proven to cause harm. Lying for financial gain remains illegal under a variety of circumstances in many jurisdictions.
But speech remains the great source of friction by which error is chipped away from truth. The First Amendment's freedoms are remarkably effective at regulating conduct within the norms of social interaction.