Updated: August 4, 2012 6:18AM
Freedom of speech, press and religion, the right to assemble and petition government — these principles the Founders recognized as fundamental to a democratic government, and they assigned them to the first ranking in the Bill of Rights. As we celebrate the anniversary of this country’s independence Wednesday, it’s worth recalling that, for all the controversy about the U.S. Supreme Court’s decision on the health-care tax, the justices during the just-ended term ruled in several contentious cases to safeguard the First Amendment guarantees of speech and religious liberty.
On the last day of its term, the court affirmed that protecting free speech means holding your nose to egregious behavior. It came in the case of a low-life former California politician named Xavier Alvarez, who told a public meeting he had won the Congressional Medal of Honor. That, like his assertion he had played hockey for the Detroit Red Wings, was a lie. But the medal lie got him convicted of violating the Stolen Valor Act making it a crime to falsely claim a congressionally authorized military honor.
In a 6-3 ruling, the court overturned the law, saying there was no evidence that false claims undermine military awards. Still, as Justice Samuel Alito observed in his dissent, such lies are far from rare. He cited a single year in which 600 Virginia residents lied that they had won the Medal of Honor, and he noted that 24 of 49 people participating in a Library of Congress oral history project dishonestly cited the award. No doubt so many false claims can raise skepticism about the actual heroism of award winners.
But the majority got it right that Congress can criminalize a lie only in the narrowest of circumstances, such as committing perjury, impersonating a police officer and lying to law enforcement. If someone lies on a job application, he can be fired. A sleazy politician like Alvarez loses the confidence of the voters and his office, and is subject to scorn, ridicule, shame, humiliation and ostracism.
Free speech means tolerating ugly things like Alvarez, flag burning and Holocaust denial. But that’s the freedom that Medal of Honor winners risked so much to preserve.
In another signal free speech case, the court reaffirmed its controversial Citizens United ruling that corporations and unions can spend money through independent political action committees to make their voices heard in elections. Critics decried the ruling as unleashing a flood of unaccountable money into political campaigns. But it’s the direct result of ill-considered campaign finance “reform” laws that restrict fund-raising by candidates. Such laws also constitute an incumbent-protection scheme. So bet on “reformers” to try again to enact new constraints on spending for political speech.
Already the Obama administration has ignored the lessons of another high court ruling. In a unanimous decision, the justices rejected the administration’s attempt to use employment discrimination laws to tell churches and other religious organizations whom they can hire for their social and education missions. But that didn’t stop the White House from using the health-care act to try to force the Catholic Church to provide insurance coverage for contraceptives, sterilization and abortifacients — practices offensive to church doctrine and teachings.
So perhaps as soon as their next term, the justices will again be called upon to defend a First Amendment liberty.