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WASHINGTON — Free speech cases before the Supreme Court often lead justices to consider far-fetched scenarios, and Wednesday's argument over a law making it a crime to lie about having received top military honors was no exception.
One after another, the justices wanted to know whether a decision upholding the Stolen Valor Act could lead down a slippery slope to new laws against such things as lying about the Holocaust, an extramarital affair, a high school diploma, college degrees or to impress a date.
"Where do you stop?" Chief Justice John Roberts asked at one point.
But the justices also suggested that it might be possible in this case to uphold the 2006 law anyway by reasoning that Congress has an interest in protecting medals it created to honor war heroes.
Justice Anthony Kennedy, who asked about lies about college degrees, also seemed open to sustaining the law.
"Here it does seem to me that you can argue that this is something like a trademark, a medal in which the government and the armed forces have a particular interest, and we could carve out a narrow exception for that. I think we would have to do that," Kennedy said.
The high court has in recent years overwhelmingly rejected limits on speech, striking down a federal ban on videos showing graphic violence against animals and a state law aimed at keep violent video games away from children. The court also rejected the attempt by the father of a dead Marine to sue fundamentalist church members who staged a mocking protest at his son's funeral.
And in 1989, the court said the Constitution protects the burning of the American flag.
Justice Sonia Sotomayor said the earlier cases made clear that merely offending others by itself is not enough to justify limiting speech.
"So outside of the emotional reaction, where's the harm? And I'm not minimizing it. I, too, take offense when people make these kinds of claims, but I take offense when someone I'm dating makes a claim that's not true," said Sotomayor, who is divorced.
She seemed the least willing member of the court to accept the Obama administration's defense of the law and disputed the view that the value of the highest award, the Medal of Honor, or any others has been diminished because some people lie about having received them.
The administration's top Supreme Court lawyer, Solicitor General Donald Verrilli Jr., defended the law as targeted to protect the integrity of the system established by Gen. George Washington in 1782. Wednesday was Washington's 280th birthday.
"The Stolen Valor Act regulates a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor," Verrilli said.
On the other side from Sotomayor was Justice Antonin Scalia. "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 charlatans. That's what Congress thought," Scalia said.
Jonathan Libby, the federal public defender arguing against the law, said Congress' intent is hard to discern because it passed the legislation without any hearings.
The effort to limit the reach of a ruling in favor of the law appeared to be the court's most pressing concern.
Justice Ruth Bader Ginsburg wondered whether Congress could use the same rationale put forth by Verrilli to justify laws against denying the existence of the Holocaust or lying merely about having served in the military.
Justice Elena Kagan asked whether the government's concern about the stability of the family could lead to a law "to prevent everybody from telling lies about their extramarital affairs."
Several justices expressed concern that a ruling striking down the law might also call into question a separate provision that makes it a crime to actually wear an unearned medal.
Libby's client, Xavier Alvarez, was one of the first people prosecuted for violating the Stolen Valor Act. Alvarez told a meeting of the Three Valleys Municipal Water District in Pomona, Calif., to which he had been elected, that he was a wounded war veteran who has received the Medal of Honor.
He never served in the armed forces.
Libby said public exposure of lies about military medals is preferable to prosecution. Alvarez "still was exposed for who he was, which was a liar," Libby said.
The two federal appeals courts that have considered the issue have come to different conclusions. The 9th U.S. Circuit Court of Appeals in San Francisco struck down the law in Alvarez's case. The 10th U.S. Circuit Court of Appeals in Denver upheld the law in the case of another false claim of military valor.
Civil liberties groups, writers, publishers and news media outlets, including The Associated Press, have told the justices they worry that the law, and especially the administration's defense of it, could lead to more attempts by government to regulate speech.
Veterans groups are backing the administration.
If the court were to strike down the law, legislation proposed by Rep. Joe Heck, R-Nev., would make it a crime to benefit from lying about a military record.
A decision is expected by late June.
The case is U.S. v. Alvarez, 11-210.
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Online:
Military Times Hall of Valor database: http://militarytimes.com/citations-medals-awards
