Last Thursday, with a media circus in full swing on its famous marble steps, the Supreme Court handed down a fascinating decision.

And no, I’m not talking about the very sensible affirmation of the Affordable Health Care Act.

I mean instead the repeal of the Stolen Valor Act, a 2006 law that made it a crime to falsely claim receipt of military decorations or medals and provided an enhanced penalty for falsely claiming to be a recipient of the Congressional Medal of Honor (MOH), the nation’s highest award for military valor.

The Stolen Valor Act was motivated by well justified moral outrage: why should a man — or woman, for that matter, although the MOH has only been awarded to one woman, Mary Walker, and that was back in the Civil War — be allowed to lie about receiving an award that others have suffered and died for?

People lie all the time, about all kinds of things. But aren’t some lies more hateful and harmful than others?

In 2007, upon being elected to Southern California’s Three Valleys Municipal Water District, a man named Xavier Alvarez introduced himself to the cheering crowd by saying that he was a retired Marine with 25 years of service, as well as a recipient of the Congressional Medal of Honor. These were very stupid lies. Mr. Alvarez was quickly found out and prosecuted under the Stolen Valor Act.

Mr. Alvarez never disputed that he told lies that day. Instead, he attacked the constitutionality of the Stolen Valor Act itself. His lawyers argued persuasively on First Amendment grounds, and the case made it all the way to the Supreme Court.

I’m all for lying. As someone who writes fiction, I have a vested interest in protecting the constitutionality of lying. But there are lies, and then there are lies. The First Amendment protects the right of free speech, but doesn’t go so far as to protect all speech. Under our laws, you can’t use lies to defraud people; you can’t lie about people in order to defame them; you can’t use lies to further criminal activity; etc.

But isn’t claiming that you won the Medal of Honor a kind of fraud? What if it helps you get elected to public office? What if it helps persuade people to trust you, and you abuse that trust for personal gain?

The Obama administration vigorously defended the Stolen Valor Act, arguing that protecting the integrity of the Medal of Honor served a “compelling public interest” and was “crucial to maintaining morale in the ranks and fostering public support for acts of bravery on the battlefield.”

Here, here! By letting someone lie about receiving this precious award — and then letting him get away with it — weren’t we diluting its value?

In its decision, the Supreme Court acknowledged that lying about receiving an award is morally bad and might cause some kind of harm, but didn’t agree that protecting the Medal of Honor justified the creation of a new category of restricted speech. False statements may be bad, but they are not unconstitutional, except in a few very specific cases. The First Amendment presumes that speech is protected unless a very high bar is met. And even if that bar is met, the legal restriction on that prohibited speech must be the least burdensome kind.

So the striking down of the Stolen Valor Act was a great victory for some of the worst liars, men like Mr. Alvarez who don’t think twice about covering themselves in false glory. It was an insult to the memory of the legitimate winners of the Congressional Medal of Honor, a very small honor roll of 3,459 recipients since the Civil War.

Nevertheless, it was an important victory for free speech. In emphasizing that there are less burdensome ways to deal with liars like Mr. Alvarez — the creation of a database of MOH winners, for instance, so that false claims like his can more easily be weeded out from legitimate ones — the Court upheld a crucial American value: that speech, even very deeply offensive speech, be protected from government intrusion.

It’s a great paradox: true Medal of Honor recipients make supreme sacrifices to protect the rights of phony ones.

Which, in my mind, elevates the sacrifice even higher.

This column was published in the Perry Co Times on 05 July 2012

For more information, please contact Mr. Olshan at writing@matthewolshan.com