The Right To Lie

The Stolen Valor Act sounded like a throwback when President George W. Bush signed it in 2005. It conjured images of a Victorian damsel seduced with lies and liquor, or of a soldier trudging wearily home to find that a shopkeeper has taken his place at the family homestead.

Valor exists in our hearts. It shows itself in the things we do. How can it be stolen?

It can’t. The Stolen Valor Act had nothing to do with theft; instead, it turned a lie into a federal crime. A federal appeals court has now struck down the law on the basis that even a lie is protected under the Constitution’s First Amendment. I think the court came to the right answer.

At a meeting of a local water district in 2007, Xavier Alvarez of Pomona, Calif., claimed that he was a U.S. Marine veteran and recipient of the Medal of Honor, the nation’s highest military distinction. In reality, Alvarez never served in the military.

He later pleaded guilty to federal charges under the Stolen Valor Act, which made falsely claiming military honors a crime punishable by up to a year in jail. Alvarez challenged the law’s constitutionality after he was sentenced to three years’ probation, 416 hours of community service and a $5,100 fine.

The Ninth U.S. Circuit Court of Appeals granted an unusual “en banc” review, in which all the circuit judges participated, rather than a three-judge panel. The court then split, with a majority joining Chief Judge Alex Kozinski in striking down the law last week, while at least seven judges disagreed, the Los Angeles Times reported.

“Saints may always tell the truth, but for mortals living means lying,” Kozinski wrote.

Of course, many lies are crimes – or, more accurately, elements of crimes. Lying to obtain money or other consideration under false pretenses is fraud. Lying about someone’s character can be defamation. Shouting a lie about fire in a crowded theater (the classic exception to First Amendment protection) is reckless endangerment, or manslaughter. In all these cases, the lie is an element of the act, but the resulting injury to person, property or reputation is the offense.

The Ninth Circuit dissenters miss this point. They interpret the First Amendment exceptions that the U.S. Supreme Court has previously recognized, such as the cry of “fire” in a crowded theater, to mean that the right to lie is not a fundamental right under the Constitution, and that lies are not worthy of free speech protection.

Here are a couple of mental exercises the dissenters might try. First, if people do not have a “right to lie,” then why make every witness who appears in court pledge to tell the truth, the whole truth, and nothing but the truth? Why not just put the witnesses on the stand, let them testify, and prosecute all the liars later?

The logical answer is that the offense of perjury is not the same as lying. The lie is not the crime; breaking an enforceable pledge not to lie is the crime. A witness surrenders his right to lie when he swears or affirms that he will tell the truth.

Alvarez was not sworn to tell the truth to the local water board. That helps to distinguish his offense from a traditionally prosecutable crime involving lying.

Still don’t see a difference? Then consider: Could last year’s Congress have enacted a law making it a crime to lie about the location and circumstances of a president’s birth? And could the so-called “birthers” thereupon be prosecuted for repeating their long-disproven hypothesis that President Obama was born someplace other than in the state of Hawaii? The idea might be appealing, but if we start prosecuting lies told in politics, we will soon have to hold our legislative sessions in prisons just to get a quorum. Politics is a form of conflict, after all, and truth is the first casualty of war.

And of self-proclaimed warriors, for that matter. Many a returned soldier has embellished the tales of what happened on the front lines, where the soldier may or may not have served.

Lying about military valor, especially in an age when so many men and women sacrifice themselves for our protection and benefit, is “despicable,” as Judge Kozinski wrote. It is one of the most extreme and hurtful examples of the embellishment, plagiarism, cheating and lying that goes on in many spheres of society. Want to find more examples of reprehensible lies? Comb through the resumes of senior executives, officeholders and charity organizers. Amid the many truly honorable and accomplished people in these fields, you’ll find a disheartening number who merely claim to be honorable and accomplished.

Just ask a corporate human resource director who sees stacks of resumes, and then compares them against college transcripts and reference checks.

Or look at Internet dating sites, where everyone is younger, better-looking, wealthier and wittier than in reality. No, that’s not fair. Not everyone – just the people who lie.

As Kozinski said, to be human is to lie. Freedom to speak therefore requires a certain degree of freedom to lie, contrary to the Ninth Circuit dissenters’ view. Lies can hurt, but not every hurtful thing can be made a crime.

We can console ourselves with the knowledge that life has a way of dealing people who cross the lines of decency too often. Alvarez may have won his case, but I doubt he is celebrating his First Amendment victory. Alvarez currently is jailed on fraud charges unrelated to his lie about his military honors.

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About Larry M. Elkin 564 Articles

Affiliation: Palisades Hudson Financial Group

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, New York in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, New York in 2002. The firm expanded to Fort Lauderdale, Florida, in 2005, and to Atlanta, Georgia, in 2008.

Larry received his B.A. in journalism from the University of Montana in 1978, and his M.B.A. in accounting from New York University in 1986. Larry was a reporter and editor for The Associated Press from 1978 to 1986. He covered government, business and legal affairs for the wire service, with assignments in Helena, Montana; Albany, New York; Washington, D.C.; and New York City’s federal courts in Brooklyn and Manhattan.

Larry established the organization’s investment advisory business, which now manages more than $800 million, in 1997. As president of Palisades Hudson, Larry maintains individual professional relationships with many of the firm’s clients, who reside in more than 25 states from Maine to California as well as in several foreign countries. He is the author of Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995), which was the first comprehensive financial planning guide for unmarried couples. He also is the editor and publisher of Sentinel, a quarterly newsletter on personal financial planning.

Larry has written many Sentinel articles, including several that anticipated future events. In “The Economic Case Against Tobacco Stocks” (February 1995), he forecast that litigation losses would eventually undermine cigarette manufacturers’ financial position. He concluded in “Is This the Beginning Of The End?” (May 1998) that there was a better-than-even chance that estate taxes would be repealed by 2010, three years before Congress enacted legislation to repeal the tax in 2010. In “IRS Takes A Shot At Split-Dollar Life” (June 1996), Larry predicted that the IRS would be able to treat split dollar arrangements as below-market loans, which came to pass with new rules issued by the Service in 2001 and 2002.

More recently, Larry has addressed the causes and consequences of the “Panic of 2008″ in his Sentinel articles. In “Have We Learned Our Lending Lesson At Last” (October 2007) and “Mortgage Lending Lessons Remain Unlearned” (October 2008), Larry questioned whether or not America has learned any lessons from the savings and loan crisis of the 1980s. In addition, he offered some practical changes that should have been made to amend the situation. In “Take Advantage Of The Panic Of 2008” (January 2009), Larry offered ways to capitalize on the wealth of opportunity that the panic presented.

Larry served as president of the Estate Planning Council of New York City, Inc., in 2005-2006. In 2009 the Council presented Larry with its first-ever Lifetime Achievement Award, citing his service to the organization and “his tireless efforts in promoting our industry by word and by personal example as a consummate estate planning professional.” He is regularly interviewed by national and regional publications, and has made nearly 100 radio and television appearances.

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