UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

White Lie:

Noun: A harmless or trivial lie, esp. one told to avoid hurting someone’s feelings.

Synonyms: fib

The concept of the ‘acceptable white lie’ is a well-known social phenomenon. White lies encompass not just telling your favourite aunt that a pair of orange mohair knee high socks was really just what you wanted for Christmas, but also the stream of omissions, exaggerations, and embroideries that form a common part of everyday social interaction. We are all aware that individuals have a tendency to exaggerate their income, youthfulness or professional success and generally, if that lie does not harm anyone else, we allow them to get away with it. But at what point does a white lie cease to be trivial and become a lie that is actively harmful?

This was the conundrum facing the US Supreme Court is the case of   the United States v Alvarez, concerning the constitutionality of the 2006 “Stolen Valor Act”. The decision was handed down last week, but somewhat slipped under the radar in the wake of the ObamaCare ruling. The Act makes it a federal crime to lie about having received a military decoration or medal, punishable by up to a year in prison if the offense involved the military’s highest honors. The key issue in the case was whether knowingly false statements of fact – made without any apparent intent to defraud –were a protected form of speech, and if so, what level of protection they deserved. The majority of the Court ruled that the Act was unconstitutional.

Justice Anthony Kennedy, giving the main opinion, said that while statements by a California man falsely claiming he had received the congressional Medal of Honor were “contemptible,” the right to make those statements was protected by the constitutional guarantee of free speech and expression; “The nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.” The Supreme Court endorsed the findings of the U.S. appeals court judges who struck down the law, who said that if lying about a medal can be classified a crime, so can lying about one’s age or finances on Facebook or falsely telling one’s mother one does not smoke, drink, speed or have sex.

The ruling rejected the administration’s argument that the military medal law was constitutional and that the government has a strong interest in protecting the integrity of awards to war heroes. The ruling was a victory for Xavier Alvarez, who was elected to a California water board in Pomona and at a 2007 board meeting had introduced himself as a retired Marine who won the country’s highest military decoration. Alvarez never received Medal of Honor and never served in the military. The FBI got a recording of the meeting and Alvarez became one of the first people prosecuted under the law.

So, there you have it. Lying may be morally wrong, but it is not a criminal offence without the intent to defraud.