Protecting the integrity of the Medal of Honor

In United States v. Xavier Alvarez the U.S. Supreme Court will decide whether the Stolen Valor Act - which makes it a crime to lie about receiving certain military honors - violates the First Amendment right to freedom of speech. In his column "The Stolen Valor Act: Is policing honesty the best policy?" Andrew Thomas suggested that "[a]t stake may be no less than the question of who gets to decide political 'truth.'" As he put it, "Should the government be able to criminalize statements made in the heat of political debate - about a candidate's qualifications, a rival's voting record, the effect of a tax plan, global warming - on the ground that they are false?" While Alvarez presents important questions - for society, for the military, for the Constitution - gratefully the issues Thomas raises are not among them.

It bears mentioning that Xavier Alvarez made his false claim about the Medal of Honor not "in the heat of a political debate" but well after his election to a local water board during an introduction to a neighboring group - hardly a heated political arena where he might forgot that he had never served in the military. Nor did he "lie" about anything remotely akin to tax policy or global warming - matters of considerable debate. Rather, he lied about a fact, a verifiable fact, concerning himself. While Thomas struggles to force Alvarez's lie into the realm of political debate, in reality it was far from it.

In framing the issue as he has, Thomas follows much the same path the 9th U.S. Circuit Court of Appeals majority followed in striking down the law. They too accepted the premise that upholding the Stolen Valor Act means giving Congress power to punish all lies. For example, during oral argument before the 9th Circuit, Alvarez's attorney equated lying about receiving the Medal of Honor - our nation's highest military distinction often awarded posthumously - with lying about the existence of Santa Claus. The majority equated it to "lying about one's height, weight, age, or financial status on Match.com or Facebook."

In my view, Alvarez has little to do with Santa Claus, Facebook, or Congress' authority to criminalize white lies or to create a "truth police." In fact, notwithstanding the parade of horrors opponents paint, the fact remains that numerous statutes already criminalize false statements. The prohibition contained in 18 U.S.C. Section 1001 - making it a crime to commit perjury, for example - is just one of many. In addition to Section 1001, over a hundred other federal statutes penalize making false statements, including falsely claiming citizenship. No one would argue that such statutes give the government power to decide the "truth."

In Alvarez, no one argued that Congress should have the power to criminalize all types of false statements. Such an argument would be silly indeed. Congress must tie a statute to one of its enumerated powers - Congress' broad power to raise and support armies in Article I, Section 8, Clause 12, for example - and then demonstrate a rational relationship to the harm it seeks to prevent. Recognizing that, one struggles to understand how Congress could criminalize telling a child about Santa Claus.

This is not to say that preserving freedom of speech, especially political speech, is unimportant. Nevertheless, it is difficult to accept Thomas' suggestion that allowing politicians to lie about receiving the Medal of Honor will make our public debate "more robust." Just ask those who voted for Alvarez believing him to be a war hero. To the contrary, politicians who lie to voters not only subvert the political process, as Alvarez did, but also the very search for the truth the First Amendment makes possible.

In the end, the fundamental issue before the Court has little to do with the right to decide political or any other truth. Nor, as some suggest, does it concern the right to criticize the military or even the government itself - rights no one questions. Rather, the Court will decide whether Congress may vindicate society's interest in protecting the integrity of the Medal of Honor and the highest level of self-sacrifice that it represents. And as the Court confronts this important issue, we would do well to remember Lincoln's words: "A nation that does not honor its heroes will not long endure."