The Stolen Valor Act — which criminalizes making false claims about military service — is up for review by the Supreme Court. The case involves a California politician who made up a Marine career, including a Medal of Honor. You can see the case for here, which is basically a argument that the Constitutional protection of free speech should not be extended to lies.
But I find myself, not surprisingly, agreeing with Jacob Sullum:
But since the Court is applying a constitutional provision that says “Congress shall make no law…abridging the freedom of speech,” this approach seems backward. Shouldn’t the question be whether the government has a compelling enough reason to overcome what sounds like a very strong presumption against punishing speech? At the very least, the First Amendment puts the burden of proof on the censors, who must justify their speech limits, rather than the speaker, who need not show that his words have value.
This should be our approach to almost all issues of civil liberties. It is not the people who must justify our freedom; our freedom is implicit; it comes to us from our Creator. It is government that must justify its intrusion.
So, is it justified here? I can’t help but wonder if more generalized fraud provisions would be a better course. If my doctor makes all kinds of false claims about training and awards, I could sue for fraud. If an employee makes false claims about their education and experience, I can fire them. Why shouldn’t false claims of any type be grounds for a fraud complaint or removal from office?
I’m not going to defend Xavier Alvarez, who is a scumbag. But should we be making a federal case out of this? Should he be facing time in federal prison?