Does the First Amendment protect someone who lies to a parent that her child has just been run over by a bus? Do free speech principles shield a man who lies about having an affair? How about a woman who fudges her weight and age to get a date?
All of these scenarios were on the minds of the Supreme Court justices in February, when they heard oral arguments in United States v. Alvarez, a case about just how much lying the First Amendment will tolerate. A fair amount, the court effectively ruled on Thursday, though you would be forgiven for missing the decision, which was handed down about four minutes before a slightly higher-profile one.
The problem of dating deception had nothing to do with the facts of Alvarez, which was about the constitutionality of a 2005 law, known as the Stolen Valor Act, that imposed criminal penalties on people who lied about winning military decorations. The law imposed an enhanced penalty—up to one year in prison—on those who lied specifically about having received the Congressional Medal of Honor.
That’s how Xavier Alvarez ran afoul of the Stolen Valor Act. In 2007, at his first meeting as a member of the Three Valley Water District Board, a governmental entity in Claremont, California, Alvarez introduced himself thusly: “I’m a retired marine of 25 years. 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.” Alvarez also claimed he played hockey for the Detroit Red Wings and married a starlet from Mexico. It was all fiction.
The starlet part wasn’t what got him in trouble, of course, but as the case wound its way through the California federal courts, more than one judge worried that the Stolen Valor Act threatened to encroach the tradition of lying about love, and specifically on dates.
“There would be no constitutional bar,” wrote Ninth Circuit Judge Milan Smith, “to criminalizing lying about one’s height, weight, age or financial status on Match.com or Facebook.” Smith’s colleague, Circuit Judge Alex Kozinski, agreed: criminalizing a lie about military medals, he wrote in another opinion in the Alvarez case, might implicate “the JDater who falsely claims he’s Jewish.”
Lying to get a date, as Smith and Kozinski correctly suggest, is a sanctified practice in human courtship. Anthropologists speculate that throughout history, evolution has favored men who are good at deceiving women in order to accomplish “short-term mating.”
Things like preexisting romantic involvements, interest in long-term commitment, affection for children—all are standard subjects of deceit in the mating dance, what former Supreme Court Justice William Brennan once called the “great and mysterious motive force in human life.” The law even has a name for it: seduction, which has traditionally referred to a man’s inducing a woman to have sex with him through the false promise of marriage.
Women lie too, of course; and the law, at least in the past, has had something to say about that as well. In the 19th century, when personal ads connected single women with newly-moneyed pioneers out West, women went to great lengths to enhance their prospects. The problem became widespread enough that California Judge John H. Arbuckle posted a warning in an 1873 issue of Matrimonial News, a matchmaking newspaper printed in San Francisco and Kansas City:
Due to the influx of Eastern ‘mail-order brides’ into our community & the hasty marriages that follow, several complaints have been lodged by no-longer happy grooms. Therefore, let it be known that any marriage into which a man is seduced by the use of false hair, cosmetic paints, artificial bosoms, bolstered hips, and padded limbs without the man’s knowledge shall stand null & void if he so desires…DO NOT BE DECEIVED.
As mating, like nearly everything else, has moved online, with more than a third of single adults in America using Internet dating, the opportunities for deception are great.
Online daters are, on average, two inches shorter and 20 percent poorer than their profiles claim, according to an analysis by OkCupid, an online-dating site based in New York. The site also found that 80 percent of those who claimed to be bisexual are in fact interested in only one sex.
A separate academic study found that the average deception for weight in online-dating is 5.5 percent of actual weight, while the average age deception for age is 1.4 percent. Social scientists say that, given the highly selective nature of an online-dating profile, a certain amount of lying seems to be accepted, if not expected, by those who participate.
But the generous stance toward dating deception taken by our law and culture seemed to be in jeopardy back in February, when the Supreme Court heard arguments in Alvarez.
“I take offense,” Justice Sonia Sotomayor told the courtroom, “when someone I’m dating makes a claim that’s not true.”
“As the father of a 20-year-old daughter, so do I,” replied Solicitor General Donald Verrilli.
(As it happens, all three of the Court’s female justices are single. Justice Ruth Bader Ginsburg was widowed in 2010, and neither Justice Sotomayor nor Justice Elena Kagan has a partner. Speaking at Northwestern University last year, Sotomayor complained of a double-standard: many of her male judging colleagues in the lower courts brought their dates to court functions, she said, and nobody talked about it. But if she did the same, her morals would be questioned. “There are expectations of how men and women should behave,” she said. “I’m probably a bit more aggressive than many like in a woman.”)
Following the oral arguments in Alvarez, several legal commentators said the justices appeared willing to uphold the Stolen Valor Act. But on Thursday, the Court struck it down. Upholding the law, Justice Anthony Kennedy wrote, “would endorse government authority to compile a list of subjects about which false statements are punishable.” American free speech policy “stands against the idea that we need Oceania’s Ministry of Truth,” he added, citing George Orwell’s novel Nineteen Eighty-Four. “The remedy for speech that is false is speech that is true. That is the ordinary course in a free society.”
In a concurrence, Justice Stephen Breyer said a more finely tailored law might survive constitutional scrutiny. “For example, a statute that requires a showing that the false statement caused specific harm or is focused on lies more likely to be harmful or on contexts where such lies are likely to cause harm.”
Another approach was suggested last year by Rep. Joe Heck, a Republican from Nevada, who introduced a bill that would make it illegal to knowingly lie about military service with the intent of obtaining “anything of value.” The bill has yet to be voted on.
As for the issue of dating deception, it was mentioned nowhere in the Court’s three opinions, and its legal consequences remain an unsettled area of law, said Paul Smith, a First Amendment specialist in Washington who argued on behalf of petitioners in the landmark 2003 gay-rights case Lawrence v. Texas. Smith echoed Breyer in pointing out that judges look at these cases through the lens of the harm caused by the lie. But, he said, they also consider what difficulties would arise from prohibiting a certain kind of speech. Allowing, say, estranged lovers to litigate truth and falsity in personal relationships would provide causes of action to people who are merely very mad at each other.
What distinguishes lies on dating sites is that they are written down, which could make the harm they cause easier to assess. “That gets into principles of false advertising,” Smith told The Daily Beast. “You could see them being treated differently.”
In the meantime, Justice Sotomayor, like everyone else who dates online or off, must face the inherent deception without a law to fall back on.