(WASHINGTON) — Maj. David McCombs, a U.S. Marine who has served four tours overseas, stood out in the cold early Wednesday morning waiting for one of the few public seats in the Supreme Court hearing room.
McCombs came to the court to hear a case challenging the Stolen Valor Act, a law that makes it a crime to lie about receiving military awards.
“The medal of honor is the highest medal that can be awarded,” said McCombs. “I believe the medal itself represents the highest sacrifice someone can pay. To lie about such an honor is a disgrace.”
But some high court justices struggled with what Justice Anthony Kennedy called the “slippery slope problem.”
Kennedy asked, for instance, about a lie concerning a college degree. Elena Kagan wondered about a law that could be passed to ban lies about extramarital affairs.
Chief Justice John Roberts asked Solicitor General Donald B. Verrilli Jr., “Where do you stop? I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting.”
The law is being challenged in court by Xavier Alvarez, who, while serving as a public official in California, introduced himself to an audience by saying, “I’m a retired Marine for 25 years. I was awarded the Congressional Medal of Honor.”
Alvarez had never even served in the military.
As one of the first people prosecuted under the law, he was sentenced to three years’ probation, a $5,000 fine and community service.
Inside court, Alvarez’s federal public defender, Jonathan D. Libby, acknowledged to the justices that his client is a liar. But he said the Stolen Valor Act goes too far and violates the First Amendment.
“The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie,” Libby said. “It doesn’t matter whether the lie was told in a public meeting or in a private conversation with a friend or family member.”
The government argued that the law fits into a narrow category of speech that is unprotected by the First Amendment.
Verrilli said the law “regulates a carefully limited and narrowly drawn category of calculated factual falsehoods. It advances a legitimate, substantial, indeed compelling governmental interest, and it chills no speech.”
Justice Sonia Sotomayor focused on the harm that a lie about military awards might cause.
“You can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming fraudulently that they got one,” she told Verrilli. “I’m not minimizing it. I, too, take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true.”
Verrilli said the statute is as “narrow as you can get” and stressed the importance of protecting the honor system.
“What I think with respect to the government’s interest here, and why there is a harm to that interest, is that the point of these medals is that it’s a big deal,” he said.
“The honor system is about identifying the attributes, the essence, of what we want in our servicemen and women — courage, sacrifice, love of country, willingness to put your life on the line for your comrades.”
Justice Antonin Scalia expressed support for the law.
“When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished.”
Justice Samuel Alito asked why a lie should receive First Amendment protection.
“Do you really think that there is First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself because that person would like to create a particular persona?” he asked.
“Yes, your honor,” Libby said, “so long as it doesn’t cause imminent harm to another person or imminent harm to a government function.”
A lower court ruled in favor of Alvarez, saying that while society would be “better off if Alvarez would stop spreading worthless, ridiculous and offensive untruths,” the law was “unconstitutionally applied to make a criminal out of a man who was proven to be nothing more than a liar.”
The case should be decided by the spring.
Copyright 2012 ABC News Radio
Ralph Ellis and Eliott C. McLaughlin, CNN