It was of special concern to the court that the Stolen Valor Act imposes a criminal penalty "for the mere utterance or writing of what is, or may be perceived as, a false statement of fact." The law isn't limited, for example, to lies on job applications, but lies anywhere. For Americans wary of the government acting as thought police, Smith laid out a compelling argument. But in so doing, he essentially held that lying about yourself is a free-speech right.
Judge Jay Bybee wrote a spirited dissenting opinion in which he noted, "I can see no value in false, self-aggrandizing statements by public servants ... If the Stolen Valor Act 'chills' false autobiographical claims by public officials such as Alvarez, our public discourse will not be the worse for the loss."
"From a nonlegal perspective, I don't necessary disagree with that," Alvarez attorney Jonathan Libby told me. But as an attorney, Libby said he believes the new law "is beyond the Constitution."
George Washington University law professor Jonathan Turley made a similar argument in a piece for USA Today. Turley didn't disagree with those who would call Alvarez and others "valor thieves" and "semper frauds." He wrote, "We can all agree that false claims of military honors are repugnant and worthy of social condemnation. These men deserve to be social pariahs, but there remains a serious question over whether they deserve to be criminal defendants."
I should point out that if Alvarez had lied about his military record for financial gain, then other laws would have taken care of him nicely.
And: Smith, Bybee and Judge Thomas Nelson were appointed by Republican presidents, so you could call this issue an honest, if spirited, disagreement inside the right.
As Libby noted, "The point of the case was whether Congress, consistent with the First Amendment, can pass a law determining what lies are criminal and what lies are not."
For his part, Bybee argued that knowingly false statements deserve no First Amendment protection. But in this complicated age, nothing is simple. Think about it. I don't think this lying, cheating poseur would have been caught if he hadn't won an election.
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