Except for Justice Sonia Sotomayor, none of the justices sounded as though they were convinced by a lawyer for Xavier Alvarez that the law should be struck down on First Amendment grounds.
The case arose when Alvarez, of Pomona, Calif., a member of a local water board, described himself at a meeting as a Marine who had been awarded the Medal of Honor. Exposed as a flagrant liar, he was convicted for violating the Stolen Valor Act, but he won a ruling from the San Francisco-based Ninth Circuit federal appeals court that declared the law unconstitutional.
On Wednesday, all the justices who spoke about the case of U.S. v. Alvarez voiced concern about current or future laws that might allow prosecutors to go after politicians and others for lies and exaggerations about their accomplishments or foibles. They asked about everything from phony college degrees to extramarital affairs.
Justice Elena Kagan wondered about state laws that bar "demonstrable falsehoods" uttered during a political campaign. How, she asked, could such a law be upheld?
Not easily, replied U.S. Solicitor General Donald Verrilli Jr. He said the law must allow a "breathing space" for political comments and assertions.
Verrilli said the Stolen Valor Act differed from a law regulating politicians because it was narrow and targeted people who knowingly and wrongly claim to have earned an award for military valor. There is no reason for the First Amendment to shield lies of that sort, he said.
Chief Justice John G. Roberts Jr. appeared to agree. But most of the justices said they saw harm in allowing liars to claim military honors. Justice Anthony M. Kennedy said it was "common sense" to say it "demeans" the military honors if charlatans can wear medals or claim to have earned the decorations.