Society & Culture
It is a truth universally acknowledged--at least by those in certain professions--that everyone lies. Everyone.Doctors know this. “Do you smoke?” they ask. “No,” the patient replies, when she really means, “Only when I’ve been drinking with my girlfriends who smoke, and I bum a smoke, but they only smoke Marlboro Lights.”Piano teachers know this. “Did you practice this week?” they ask. “Yes!” the student replies, when she really means, “For the forty-five minutes before I came to this lesson, and only because my mom made me.”And, of course, lawyers know this. Whether it’s clients, witnesses, opposing counsel, even (gasp) judges, everyone lies. Or omits the truth. Or shades the facts. It’s human nature; there are no Honest Abes.Nonetheless, although most people (whether they want to consciously acknowledge it or not) realize that everyone lies at least some of the time, lying is a crime in our society. So much so, that certain crimes are categorized based on the element of lying they contain. The Latin term for such crimes is crimen falsi, quite literally, “crimes of deceit.” Generally speaking, crimen falsi involves forgery or another form of “official” lying, such as perjury. Moreover, crimen falsi occupies a special place among crimes when it comes to evidentiary rules during a trial. For example, when a witness is testifying, the lawyer conducting cross examination typically cannot bring up a prior criminal conviction to undermine that witness’s testimony--unless the conviction was for a crimen falsi offense. The rationale? In assessing a witness’s credibility, the judge or jury should know if the witness has “officially” lied before.In today’s society, however--where we acknowledge that everyone lies; where a lie is as ubiquitous as long-expired profile pics on Facebook--can we say with any degree of certainty that one lie inevitably leads to another? Furthermore, where do we draw the distinctions between “white” lies, morally repugnant lies, and criminal lies?The Ninth U.S. Circuit Court of Appeals recently attempted to answer that question in United States v. Alvarez, addressing the constitutionality of the Stolen Valor Act. In Alvarez, the court tackled the tricky question of what limits the First Amendment places on criminalizing speech, even if that speech is a lie. It acknowledged that in many circumstances, the government can criminalize falsehoods without running afoul of constitutional protections--in other words, most lies do not merit First Amendment protection. However, the 9th Circuit held in this case that the Act was overly broad--criminalizing a written or spoken lie about military medals, without requiring proof of fraud, injury, or benefit*--and did not survive strict constitutional scrutiny. This decision has lit up the Internets, with commentators running the gamut from tempered disagreement to vitriolic outrage. Without delving deeper into the constitutional debate, it is worth noting the deep chord this decision has struck on the collective American psyche. In today’s society, technology creates an illusion of intimacy despite physical separation, requiring a higher degree of trust that others are projecting an authentic version of themselves. Furthermore, lies can be easily made and spread, but also live forever regardless of the speaker’s intent. This creates a sort of cognitive dissonance. We don't want to be lied to, especially about something noble like military awards. On the other hand, we practitioners of “harmless” puffery might prefer the government not be able to throw us in the clink when such exaggerations come back to haunt us.Alvarez’s fate may ultimately lie with the U.S. Supreme Court, but in the meantime this decision has opened no floodgates; crimen falsi offenses are here to stay, and many types of false speech continue to be unprotected and lawfully criminalized. In other words, even if they both lead to the same result, there’s still a difference between a padded bra and a padded resume.*The Stolen Valor Act reads:“Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both [one year for more prestigious awards like the Medal of Honor].”