Stolen Valor Act Argued Before Supreme Court

The case arose from a lie told in 2007 at a public meeting by Xavier Alvarez, an elected member of the board of directors of a water district in Southern California.

“I’m a retired Marine of 25 years,” he said. “I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”

That was all false, and Mr. Alvarez was prosecuted under a 2005 law, the Stolen Valor Act, which makes it a crime to say falsely that one has “been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” Mr. Alvarez argued that his remarks were protected by the First Amendment.

His case ran into trouble at the Supreme Court as it emerged that many justices accepted two fundamental propositions. First, most of the justices seemed to accept that the First Amendment does not protect calculated falsehoods that cause at least some kinds of harm. Second, there seemed to be something like a consensus that the government has a substantial interest in protecting the integrity of its system for honoring military distinction.

To arrive at those two propositions, the justices worked through any number of hypothetical questions and worried about the collateral damages to free speech values that a ruling upholding the law might generate.

Justice Stephen G. Breyer said it was all right to lie, for instance, when asked, “Are there Jews hiding in the cellar?”

Justice Samuel A. Alito Jr. suggested that it was acceptable to punish a false statement that “your child has just been run over by a bus.”

Justice Sonia Sotomayor asked about false statements made while dating. Justice Elena Kagan asked about lies concerning extramarital affairs.

Chief Justice John G. Roberts Jr. asked whether Congress could make it a crime to lie about having a high school diploma. Solicitor General Donald B. Verrilli Jr. responded that some states had indeed enacted laws concerning diplomas from public universities, and he indicated that they would be constitutional if they concerned calculated lies about verifiable facts that led to real harm.

Mr. Verrilli listed several laws that punish those kinds of falsehoods, including ones prohibiting false statements to federal officials and banning the impersonation of federal officers, as well as perjury.

Similarly, he said, the Stolen Valor Act punishes only knowing falsehoods that result in “the misappropriation of the government-conferred honor and esteem,” which he called “a real harm and a significant harm.”

The hardest hypothetical question for the justices seemed to concern state laws that make it a crime for politicians to lie in some settings. Mr. Verrilli said such laws might run afoul of the First Amendment because of their potential to chill truthful speech for fear of prosecution.

Justice Kagan asked a lawyer for Mr. Alvarez, Jonathan D. Libby, whether the Stolen Valor Act posed the same problem. “What truthful speech will this statute chill?” she asked.

Mr. Libby’s response seemed to surprise Justice Kagan. “It’s not that it may necessarily chill any truthful speech,” he said. “We certainly concede that one typically knows whether or not one has won a medal or not.”

Justice Kagan considered what she had just heard. “So, boy, I mean, that’s a big concession, Mr. Libby,” she said.

Mr. Libby also acknowledged that the government may punish false speech that is intended to obtain something of value. Chief Justice Roberts asked whether Mr. Alvarez, who was politically active, benefited from his lie. Mr. Libby said that was possible.

The chief justice said this, too, was “an awfully big concession.”

Justice Anthony M. Kennedy seemed to summarize the court’s conflicting impulses in the case. On the one hand, he said, the government should not establish “a Ministry of Truth.” On the other, he said of lies like Mr. Alvarez’s, “I have to acknowledge that this does diminish the medal in many respects.”

The New York Times Company and other news organizations filed a brief supporting Mr. Alvarez in the case, United States v. Alvarez, No. 11-210. The brief argued that most false statements are better addressed by exposing them in the marketplace of ideas than by punishing them as crimes.

There was universal agreement on one point at Wednesday’s argument. No one spoke up for Mr. Alvarez, including his lawyer.

“Certainly, people are entitled to be upset by these false claims,” Mr. Libby said. “I mean, I’m personally upset by these false claims.”

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Virginia Bill Requiring Ultrasound Before Abortion Nears Vote

The bill, which could pass the Republican-led House of Delegates as early as Tuesday, is one of the stronger ultrasound laws passed by states in recent years. If it is adopted, Virginia will become the eighth state to require ultrasounds before abortions, a rule that anti-abortion forces hope will cause some women to change their minds but that women’s advocates call an effort to shame women and interfere with their privacy. The Senate, which is split evenly along party lines, narrowly adopted the bill this month.

Mr. McDonnell, a Republican who sponsored similar legislation when he was a lawmaker, initially voiced strong support. But the bill has drawn intense public attention, and a spokesman struck a more muted tone over the weekend, a shift that opponents said could mean that the governor might amend it before signing it. A throng of the bill’s opponents held a vigil outside the Statehouse on Monday in protest.

“If the bill passes, he will review it, in its final form, at that time,” said the spokesman, Martin Tucker. In Virginia, a governor can amend a bill after final passage by the legislature.

The nature and tone of legislation is particularly important for Mr. McDonnell, political analysts say, because he is seen as a possible contender for vice president on the Republican ticket and could be calculating how the bill will be perceived by a national audience.

Requiring ultrasounds before abortions has become one of the principal tactics of the anti-abortion movement, with similar rules now in effect in seven states and being held up by legal challenges in two more — Oklahoma and North Carolina.

While the Virginia bill does require an ultrasound, it does not require the woman to view it, making it less strict than laws in Texas and Oklahoma, where the doctor must place the screen in front of the woman.

In its current form, Virginia’s bill requires that the ultrasound find and monitor the fetal heartbeat and provide an image of the shape of the fetus. As in other states with ultrasound laws, this will often require a probe to be inserted into the vagina. The nonintrusive abdominal ultrasound, on the other hand, often cannot capture the fetus at its small size in the first trimester, when most abortions are performed.

Vaginal ultrasounds are often performed by doctors before abortions anyway, but opponents say that the legal act of requiring it for nonmedical reasons is a violation of the doctor-patient relationship. Delegate Charniele L. Herring, a Democrat who opposes the bill, said the requirement that the probe be inserted vaginally was tantamount to “state-sponsored rape.”

Anti-abortion groups say that it is a tool for “informed consent,” and that they hope some women will be deterred when they see or hear about the physical traits of the developing fetus.

As in other states, Virginia’s rule would impose a 24-hour wait between the ultrasound and the abortion, which critics say adds unnecessary expense and inconvenience. It would also require that a printout of the ultrasound image be placed in a woman’s medical record, whether or not she wants to view it. Critics also say that in the current bill, the cost of the ultrasound will be borne by the woman.

“This is a forced bodily intrusion, and it could be going against a doctor’s better judgment,” said Tarina Keene, executive director of Naral Pro-Choice Virginia. “If a woman says she doesn’t want to have an ultrasound, she shouldn’t have to have one.”

Delegate Bob Marshall, a Republican who plans to vote for the bill, contends that the argument does not ring true because the abortion itself is far more invasive.

“The intrusion is already taking place,” he said.

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