WASHINGTON Supreme Court justices questioned on Wednesday whether the federal government, in making it a crime to lie about receiving a military medal, could next make it illegal for someone to tell lies about an extramarital affair or a college degree.
The high court appeared sharply divided while hearing arguments on whether the "Stolen Valor Act" adopted by Congress in 2006 violated constitutional free-speech rights, a case about how far the government may go to prosecute false claims about military honors.
Some court members said free-speech protections under the First Amendment do not cover false statements and that deference should be given to Congress' judgment that the lies caused harm by demeaning the country's system of military honors.
Justice Anthony Kennedy, a free-speech advocate who often casts the decisive vote on the court, worried about what he called the "slippery slope problem" and whether the government could then make it illegal to lie about a college degree.
The Obama administration has defended the military medal law, saying the government has a strong interest in protecting the integrity of awards to war heroes.
"How about extramarital affairs?" asked Justice Elena Kagan.
She said the federal government has a strong interest in the sanctity and stability of the family, "so we're going to prevent everybody from telling lies about their extramarital affairs," she said in her hypothetical question.
Solicitor General Donald Verrilli replied that would be a hard case. "You would, I think, have a great deal of difficulty sustaining that statute," he said, adding that the military medal law was different.
Verrilli argued the law covered a narrow category of intentional factual false claims.
Justice Ruth Bader Ginsburg questioned whether a law could be adopted covering other false statements, such as denying that the Nazi Holocaust ever occurred. Verrilli answered that a law seeking to regulate that would have problems.
FALSE CLAIMS AT ISSUE
The military medal law targets individuals who falsely claim, verbally or in writing, that they received such an award. Violators can face up to six months in prison, or up to one year for elite awards, including the Medal of Honor.
The case involved Xavier Alvarez, who was elected to a California water board in Pomona. He introduced himself at a board meeting in 2007 and said he was a retired Marine who won the Medal of Honor, the country's highest military decoration.
Alvarez never received the award and never served in the military. The FBI got a recording of the meeting and Alvarez became one of the first defendants prosecuted under the law.
He pleaded guilty and was sentenced to pay a $5,000 fine and perform more than 400 hours of community service at a veterans' hospital. He then challenged the law for violating his free-speech rights and a U.S. appeals court ruled in his favor.
His attorney Jonathan Libby argued before the Supreme Court that the law could cover parody, satire or exaggeration. He said the lies told by Alvarez caused no harm, but several justices questioned that.
Justice Antonin Scalia, who appeared to be one of the strongest supporters of the law, said Congress thought the lies did cause harm by demeaning and diminishing the value of the awards received by members of the armed forces.
Chief Justice John Roberts questioned whether Alvarez did benefit from his lies. "Doesn't it help a politician to have a congressional Medal of Honor?" he asked.
If the justices strike down the law, legislation already has been introduced in the U.S. House of Representatives to make such lies a crime only if there was intent to profit.
Libby said such a law, covering fraudulent activity, would be constitutional.
The Supreme Court is expected to rule by the end of June.
The Supreme Court case is United States v. Xavier Alvarez, No. 11-210.