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Supreme Court debate: Is lying about being a war hero protected speech?

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When Jonathan Libby, a deputy public defender from Los Angeles, struggled to answer repeated questions about the constitutional value of a lie, Justice Stephen Breyer broke into the discussion with an example of a situation justifying a deliberate falsehood that would be both honorable and constitutionally-protected: “Are you hiding Jews in the cellar?”

Chief Justice Roberts brushed the comment aside. The statute regulates a “purely false statement about one’s self.” he said. “What is the first Amendment value in [allowing such lies]?”

“Our Founders believed that Congress as a general principle doesn’t get to tell us what we as individuals can and cannot say,” Mr. Libby replied. In other areas where the high court has long allowed regulation of speech, it involved speech that caused specific harm to others such as libel, obscenity, or incitement, Libby said.

The case, US v. Alvarez (11-210), stems from comments made by Xavier Alvarez, the elected member of a local water district board in southern California. In July 2007, Mr. Alvarez introduced himself during a meeting as a retired US Marine who had served for 25 years and won the Medal of Honor in 1987.

None of it was true.

Alvarez was charged with violating the Stolen Valor Act. He faced up to six months in prison.

After an FBI investigation, Alvarez entered a conditional guilty plea. His lawyer, Mr. Libby, continued to fight the charge, arguing that the underlying statute, the Stolen Valor Act, violated Alvarez’s free speech rights.

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