The individual mandate — er, tax — in the Affordable Care Act has been upheld. The President’s signature initiative survives. The reputation of the Court is untarnished. Chief Justice Roberts’s legacy as a steward of the Court’s institutional reputation is strengthened.

It’s a happy day for the Court, the President, and people who sometimes need health care. The opinion is bad news for Justice Kennedy (if Roberts will swing, who needs Kennedy?) and, I think, the belly dancers who were in front of the Court this morning (their political leanings aren’t as easy to discern as their midriffs).

But, of course, there was other action at the Court today. The Court affirmed a bedrock principle of our democracy — we have a right to lie. Sort of….

Xavier Alvarez is a complicated man. He was elected to a water board. That didn’t boost his ego. Even though he was now dripping with power, at his first meeting of the board he introduced himself 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 wasn’t true.

And, as any kindergartner knows, sometimes when you lie, people realize that you’re lying. Mr. Alvarez was roundly criticized in the press. Another board member called for his resignation. The fury of public anger turned against him.

It is a great waste for there to be public outrage without a prosecutor’s career benefiting. In an effort to eliminate this kind of waste, Mr. Alvarez was prosecuted for violating the Stolen Valor Act. The Stolen Valor Act makes it a federal crime to lie about having received the Congressional Medal of Honor.

Today, the Supreme Court reversed his conviction in United States v. Alvarez — the Stolen Valor Act is unconstitutional.

The question many, including me, were hoping the Court would address is whether you have a right to lie — whether lies that do no harm are still constitutionally protected speech.

The government argued that it has the right to regulate, and if a statute is in place, indict, anyone who lies for any reason (I’m paraphrasing).

The Court rejected that argument. Justice Kennedy, writing only for himself, the Chief, Ginsburg, and Sotomayor, wrote that the best response to a lie is more truth, not criminal charges.

The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.

Lies, according to these four, enjoy constitutional protection outside of cases of defamation, fraud, or other clearly harmful speech.

Justice Breyer concurred separately with Kagan. These two agreed that the Stolen Valor Act has to go, not because lies enjoy protection, but because the government’s criminalization of these lies was overbroad for the ends it was seeking to vindicate.

As anyone who has ever been to a dinner party knows, lies have some benefit. For that reason, Breyer finds lies enjoy some protection sometimes:

False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with com¬fort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.

Or, as Chief Judge Kozinski wrote in his opinion when this case was in the Ninth Circuit (and, really, if you’re a geek, the whole opinion is worth reading):

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).

For Breyer and Kagan, the Stolen Valor Act went down not because lies are unquestionably protected — they’re protected to the extent they add value. Like a sixth year associate when a firm’s revenue is down.

But here, the value of these lies about military honors is enough to make the government’s effort to regulate them de trop. Mr. Alvarez gets to lie another day.

And that, gentle readers — and people who write in the comments — is October Term 2011.


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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