The Lie Direct

Perhaps the most glorious exaltation of the First Amendment's guarantee of free speech was one that shunned silence in favor of speech, speech and more speech :

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.  Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Whitney v. California, 274 U.S. 357, 377 (1927)(Brandeis, J., concurring)(footnote omitted).

Whether or not lying about military heroism had become a large problem in society, or anything close to an imminent evil, Congress made a law abridging, and indeed criminalizing, false speech about receiving a Congressional Medal of Honor.  And, so, picking up Justice Brandeis’ gauntlet, when Xavier Alvarez was charged with violating the Stolen Valor Act, in a brief moment of honesty, he admitted that he never received the medal he claimed to have earned but averred that this lie was protected speech under the First Amendment.  He was right.  Lies, the Court decided, are in fact within the realm of speech guaranteed by the Constitution. 

Given the propensity to fib, this must come as a great relief to many.  We hate to admit this, but we all lie.  Mostly, we prevaricate about things that cannot be easily verified – how we feel, how much we weigh, how much we spent on that coat, what kind of gas mileage the Prius really gets, whether we ate the last brownie, whether we really DO think you look fat in that dress. 

...I did dislike the cut of a certain courtier's beard: he sent me word, if I said his beard was not cut well, he was in the mind it was: this is called the Retort Courteous. If I sent him word again 'it was not well cut,' he would send me word, he cut it to please himself: this is called the Quip Modest. If again 'it was not well cut,' he disabled my judgment: this is called the Reply Churlish. If again 'it was not well cut,' he would answer, I spake not true: this is called the Reproof Valiant. If again 'it was not well cut,' he would say I lied: this is called the Counter-cheque Quarrelsome: and so to the Lie Circumstantial and the Lie Direct.

William Shakespeare, As You Like It , Act V, Scene IV

We are liars, committing lies circumstantial and lies direct.  So, why do we express such pleasure when others lie and get caught?   Athletes lie.  Politicians lie.  Bankers lie. Businessmen lie. Authors lie. Journalists lie.  Lying is such a human trait that Cain  casually deflected his own guilt about killing his brother by lying to God…who, ummm…probably knew he was lying.   

  

When the news broke about Adam Wheeler lying to get into Harvard and to get grants from Harvard and to be fawned over by Harvard faculty, some believed that this would be the great reveal about Harvard.  Harvard did not check any of the blatantly false and ridiculous claims on Wheeler’s application, claims easily found and brought to light by the media.  Harvard was no dupe; it was a willing participant in the fraud (and the absurd claims about admissions officers relying on trust is just nonsense or, if true, idiocy.)  Until a faculty member recognized plagiarism, everyone believed Wheeler to be the boy genius he pretended to be – that is, he lied to get into Harvard but once he was there they did not realize that he was not who he pretended to be.  It was not Wheeler’s lies but Harvard’s willful blindness or total acquiescence that was really criminal.  Yet, Wheeler, ashamed of his behavior, is now a convicted felon…for lying.

Why is Adam Wheeler’s lie about his academic record worthy of incarceration but Xavier Alvarez’ lie about his military record is not? The reality is, it’s not.  Like Alvarez, Wheeler constantly got away with self aggrandized lies.  He made colossal mistakes, but mistakes no greater than Milli Vanilli or Rosie Ruiz.  The prizes he received should not have been awarded because the judges should have known he was copying other people’s work.  This is not to justify the lies or to condone them in any way, but they are not crimes. 

In Alvarez, the Court inched closer to confirming that almost all speech has some value worthy of First Amendment protection.  As uncomfortable as this may make us, it is commendable.  

We do recognize some false speech offenses.  Perjury, for example, was undeniably a crime at the inception of the country and is still a crime.  The offense of perjury is not the lie - it is failing to fulfill a promise, under oath, to tell the truth.  The false oath is an insult to the tribunal and, probably, originally to the Crown.  So, the lie is not at issue, but the promise not to lie and then the blatant repeal of that promise is the offense worthy of punishment.

Similarly, in fraudulent transactions, it is not the lie, but the detrimental reliance on the lie by an innocent who is relieved of his funds or personal effects to the enrichment of the liar.   This is a form of larceny.  What is punished is the theft, not the lie.  But, even this is not a well prosecuted crime.

But, false statements generally?  How is this type of speech punishable as a crime when lying about receiving a high military honor is not?  If content is not punishable and false content is not punishable, then why is telling a lie to a college admissions office or a police officer a crime but telling an audience a lie is not?  The Alvarez case raised hackles because those who are specially recognized for their military honor and bravery are deserving of the nation’s thanks; no one should co-opt such acclaim without earning it.  The lie is repugnant and worthy of disdain, but not the threat of imprisonment.  The legacy of the Alvarez case might well be - and should be - challenges to other speech-related crimes.

The First Amendment protects all speech: true, false, popular, unpopular, political, commercial, funny, stupid, kind, cruel, uplifting and disparaging.  The answer to speech that offends is more speech, not jail time.  Maybe, just maybe, if we all keep talking the truth eventually will come through.