Little white lies

US Supreme Court upholds the right to lie as part of the freedom of speech

Written by Rishab Kumar | Published: July 17, 2012 1:11:21 am

US Supreme Court upholds the right to lie as part of the freedom of speech

I may not agree with what you have to say,but I will defend unto death your right to say it” — even if what you say is a blatant lie. The quoted statement is the classic representation of free speech philosophy propagated by Voltaire in the 18th century. The extension,a fierce defence of an individual’s rights,is a reflection of United States vs Alvarez,a recent US Supreme Court decision where the court held that an individual’s right to lie is protected by the freedom of speech clause in the First Amendment to the US Constitution.

“Lying was his habit.” Xavier Alvarez,the respondent in the case,lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honour,he ventured onto new ground,for that lie violated a federal criminal statute,the Stolen Valour Act of 2005.

Alvarez was a board member of Three Valley Water District Board,a government entity in California. At a board meeting in 2007,he introduced himself as: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987,I was awarded the Congressional Medal of Honour. I got wounded many times by the same guy.” None of this was true. But,none of these statements was made with a view to gain any benefit,commercial or otherwise. It was merely an attempt to gain esteem. Alvarez was prosecuted under the Stolen Valour Act,which aims to prevent people from lying about military honours.

However,the court held that,so long as there was no other unlawful benefit,Alvarez had a constitutionally protected right to make such statements and any law that prevented him from doing so was unconstitutional.

The court’s reasoning was as follows. The First Amendment grants an almost absolute right to free speech and content-based restrictions on this right have been permitted only for a few historic categories of speech. These include incitement,obscenity,defamation,speech integral to criminal conduct,so-called “fightingwords”,child pornography,fraud,etc. Crucially absent from these limited categories is any general exception for false statements. As the Stolen Valour Act targets falsity and nothing more,the court found the act unconstitutional.

The court acknowledged,beyond doubt,the interest that the government has in protecting the integrity of military honours. However,the court noted that when the government seeks to regulate free speech,it should use the least restrictive means available. It reasoned that,in the instant case,the government could likely protect the integrity of the military awards system by creating a database of medal winners accessible and searchable on the internet,rather than imposing a complete prohibition on one kind of speech.

Here,it may be interesting to note the difference between US and Indian law on freedom of speech. The US First Amendment enacts an absolute prohibition against Congress making any laws that curb free speech,so that a heavy burden lies on anyone transgressing the right to justify such transgression. The clause itself contains no exceptions and the only restrictions on this absolute right have had to be evolved by judicial decisions.

The position in India is different. The right itself is more limited. The right to freedom of speech,contained in Article 19(1)(a) of the Constitution,itself contains limitations in Article 19(2). Laws imposing reasonable restrictions on freedom of speech are permitted by the Constitution (albeit for certain purposes only),and whether any such law is constitutional is only a matter of construction. No doubt a court must decide whether such restrictions are reasonable,but the law imposing these restrictions will prima facie be presumed constitutional. The burden therefore is not on the transgressor (as in the US),but the individual challenging the law.

The difference between the two countries in their approaches to freedom of speech is ironically captured by the first amendments to the two constitutions. While the First Amendment to the US Constitution enacted the landmark prohibition against imposing restrictions on free speech,the First Amendment to the Indian Constitution amended Article 19(2) and actually expanded the restrictions on free speech.

Though the Alvarez decision was not unanimous and in fact may have little practical significance,it serves as a perfect test case to pose a unique philosophical question: does the right to free speech extend to lying for no otherwise unlawful gain? And perhaps,more interestingly,what value is there in protecting these lies?

Readers will be aware that this judgment comes at a time when India has shown itself as an increasingly intolerant society; whether it’s Salman Rushdie being prevented from speaking at the Jaipur Literary Festival,or prescribed dress codes for tourists in Kashmir. Freedoms are not easily won and this case should serve as a contrast and an instructive reminder that even the smallest freedoms must be protected fiercely as a matter of principle.

The writer is an advocate and LLM candidate at Columbia University,US

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