Braggadocio is shameful, but not a crime

The U.S. Supreme Court justices who sharply questioned the sweeping language of the Stolen Valor Act were properly concerned that a 2006 law making it crime to falsely claim a military honor violates the First Amendment.

As Chief Justice John Roberts asked at Wednesday's oral arguments, where do you draw the line on the power of the government to police lying? Would it apply to exaggerations by political candidates? Justice Anthony Kennedy asked if the government would become a "Ministry of Truth." "How about extramarital affairs?" asked Justice Elena Kagan. Justice Ruth Bader Ginsburg wondered whether there could be a law making it a crime to deny the Holocaust ever occurred.

The risk of unleashing such government intrusion is why the court should strike down this law making it a misdemeanor, punishable by up to one year in jail, to falsely represent verbally, or in writing, to have been awarded any military decoration or medal. The law, proposed by Democrats seven years ago, sailed through Congress with hardly any review, nor a dissenting vote. It was signed by President George W. Bush. The justices shouldn't get lost in the hollow sentiment and cloak of patriotism that surrounded its passage.

In defense of the law, Solicitor General Donald Verilli Jr. said it was necessary to protect the integrity of military honors and give full due to the bravery of actual medal winners. He tried to salvage his case by saying that prosecutions would only really occur when the lies were so egregious that the medals would lose their value. He also conceded that for the medals to lose their luster, those hearing the false claims would have to assume the lies were true. But this law is not that narrowly written.

Verilli had to make those concessions because the hastily drawn statute is so broad, critics of the law have pointed out that comedian Stephen Colbert could be prosecuted if he claimed to be a medal winner as part of a satirical routine.

The goal of Congress is laudable, but there are other ways to protect the honor of military awards than by starting down the dangerous path to criminalizing speech. The law doesn't require intent, nor does it require the falsehood to cause any specific harm. While we do have laws that punish lies, those exceptions have been for statements that carry serious consequences, from provoking a panic, to perjury and libel.

The case under review involves Xavier Alvarez, an elected water board member for an area near Los Angeles. At a meeting with other water commissioners, he sought to make an impression by introducing himself as a 25-year veteran of the Marines who had once rescued an American ambassador. He also said he won the Medal of Honor because of his many injuries. Alvarez's falsehoods earned him the immediate ridicule of those in his community, where he was labeled a "jerk" and an "idiot." His own lawyers, who call him a "serial liar" in his defense, say the public shaming was enough. It was.

This court, in recent decisions, has refused to create exceptions to First Amendment protections for protesters at military funerals, for video games and for depictions of cruelty to animals. The Stolen Valor Act presents no reason to change that course.