Good morning, it's Friday, August 4, the day of the week when I pass along quotations intended to be inspiring or elucidating. Today's words of wisdom come from Anthony Kennedy, with assists from Oliver Wendell Holmes and Louis Brandeis.
Nominated for U.S. Supreme Court vacancy in 1987 by Ronald Reagan, Kennedy served with distinction until his retirement five years ago. When I say "with distinction," I don't mean he was universally applauded. During his tenure on the high court Tony Kennedy and Sandra Day O'Connor -- also appointed by Reagan -- emerged as swing votes whose moderate approach to the law set them apart from the liberal and conservative blocs to their left and right. Both justices often frustrated movement conservatives, particularly on social issues. Conservatives thought Reagan could have done better.
Kennedy's jurisprudence could frustrate liberals, too, on cases ranging from environmental protection to gun rights and, of course, the famous Bush v. Gore case. After O'Connor retired in 2005, Kennedy became the swing vote in several prominent 5-4 decisions. His jurisprudence could seem ad hoc -- he once quoted a French public opinion poll in a death penalty case -- but if you looked closely there was an ideological thread running through his jurisprudence: Justice Kennedy was more of a libertarian than a conservative or a liberal.
Viewed that way, his staunch support for the First Amendment is no surprise. Liberals still gnash their teeth at the Citizens United decision (even as they have turned it to the Democrats' monetary advantage) and conservatives were dismayed by his majority opinion in a case involving a public official who lied about his military service.
Before George Santos came along, American politics had to deal with Xavier Alvarez. He was a minor public official in Orange County, Calif., a board member of the Three Valley Water District, who in 2007 introduced himself publicly with these words:
"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."
This was untrue. As Justice Anthony Kennedy would write five years later when Alvarez's case reached the Supreme Court, "Lying was his habit." The record showed other whoppers: Alvarez claimed falsely that he played hockey for the Detroit Red Wings and that he once married a Mexican film star. But when he lied about the Congressional Medal of Honor, he broke a new law. As it happens, there are a lot of people out there like George Santos and Xavier Alvarez. They lie, Kennedy noted, "in a pathetic attempt to gain respect that eluded" them.
It has been forever thus. But for combat veterans of the Vietnam War, it was particularly galling. Many of these men had been openly disparaged when they served -- the only uniformed soldiers in this country's history treated in this way. To compound the insult, when the political winds shifted (notably, after Ronald Reagan called Vietnam "a noble cause") these men had to listen to a startling number of faux heroes who never wore the uniform boast about fake battlefield exploits.
The upshot was the Stolen Valor Act of 2005, a bipartisan law that made it a federal crime to claim credit for medals never awarded. The motivations behind it were high-minded, but as the federal courts would conclude, the original version of the statute (it was rewritten in 2013) was drawn too broadly to pass muster under the First Amendment. Xavier Alvarez pleaded guilty in federal court, but under the provision his lawyers could challenge the constitutionality of the Stolen Valor Act. The 9th U.S. Circuit Court sided with the defendant. So did the United States Supreme Court.
"The remedy for speech that is false is speech that is true," Kennedy wrote for the court's majority. "This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth."
Kennedy cited a 1927 case, Whitney v. California, to back him up and reprised a Justice Brandeis line from that opinion. "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."
Justice Kennedy also invoked Oliver Wendell Holmes' dissent from a 1919 case. Justice Holmes wrote in Abrams v. the United States that the theory of our Constitution is "that the best test of truth is the power of the thought to get itself accepted in the competition of the market."
More Tony Kennedy from the 2012 Alvarez case:
The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.
And that is our quote of the week.
Carl M. Cannon is the Washington bureau chief for RealClearPolitics. Reach him on Twitter @CarlCannon
