Lying Is Protected Speech: What Does This Mean For Advertisers?

Did you hear the news? The Supreme Court has ruled that lies have First Amendment protection.

I'm not just talking about little white lies, or half-truths, or artful omissions – I'm talking about great big whoppers, like claiming at a public meeting that you were awarded the Congressional Medal of Honor when you were never even in the military.

I'm not lying, folks – if you don't believe me, just take a gander at United States v. Alvarez. (If you're a member of the FTC's Bureau of Consumer Protection staff, you'll want to take a very close look at it.)

That decision has received very little attention because it was issued the same day as the "Obamacare" opinion, which exerted a black hole-like gravitational effect on the attention of the press and the public.

United States v. Alvarez involved a challenge to the Stolen Valor Act, a 2005 federal law that makes it a crime to falsely represent that one has been awarded a medal, decoration, or badge for service in the armed forces.

The Medal of Honor

Xavier Alvarez, a member of a water district board in Claremont, California, was prosecuted under the Stolen Valor Act for telling the attendees of a board meeting that he was a retired Marine who had been wounded in action and had received the Congressional Medal of Honor in 1987. Alvarez (who also once claimed to have played hockey for the Detroit Red Wings -- which apparently violates no federal law) had never even served in the military, much less won the Medal of Honor.

Justice Kennedy's plurality opinion – he was joined by the Chief Justice and Justices Ginsburg and Sotomayor – acknowledged that Alvarez's claim was absolutely false. "There is no room to argue about interpretation or shades of meaning," he said. But that fact alone didn't necessarily disqualify the claim from being protected by the First Amendment.

Content-based restrictions on speech are generally presumed to be invalid, although there are exceptions to that rule for certain categories of speech – e.g., defamation, fraud, and obscenity.

According to Justice Kennedy, "[a]bsent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements."

While there have been a number of cases upholding laws that declared false statements to be illegal, Kennedy said that those cases all involved some "legally cognizable harm associated with the false statement." In other words, it wasn't the lying...