Not so fast: Supreme Court ruling could protect George Santos from legal punishment

The push to investigate and punish Rep.-elect George Santos (R-N.Y.) for the falsehoods he spread during his 2022 election campaign is on a collision course with a legal precedent set a decade ago when the U.S. Supreme Court ruled lying is constitutionally protected even when it involves officeholders.

Santos admitted this week that he lied on the campaign trail about a number of details of his biography, including where he attended college and his alleged employment history with high-profile Wall Street firms.

"My sins here are embellishing my resume. I'm sorry," Santos said Monday, confessing he never graduated from any college and "never worked directly" for Goldman Sachs and Citigroup. Santos chalked up his misleading claims to a "poor choice of words."

Santos, the first openly gay non-incumbent Republican elected to the House, has also been accused of lying about his religion, family history, and sexual orientation, although he's defended some of those assertions from criticism.

The latest story being questioned concerns Santos' claims that his mother was at the World Trade Center on Sept. 11, 2001, and that the dust cloud caused by the terrorist attacks played a role in her death years later.

Santos has received widespread backlash for his fibs. A fellow incoming congressman from New York is calling for a full investigation by the House Ethics Committee, as is Santos' Democrat opponent in the general election.

While House Republican leaders have largely remained silent on the issue, some Democrats in Congress — including Reps. Joaquin Castro of Texas and Ted Lieu of California — have called not only for an investigation by authorities but also for Santos to resign and, if he refuses, for the House to expel him.

Rep. Eric Swalwell (D-Calif.) added that Santos should be "banned from taking the oath for Congress," and Rep. Ritchie Torres (D-N.Y.) introduced the Stop Another Non-Truthful Office Seeker (SANTOS) Act, which would require candidates "to disclose under oath their employment, educational, and military history so we can punish candidates who lie to voters about their qualifications."

Meanwhile, a Long Island prosecutor on Wednesday announced an investigation into Santos' fabrications.

"The residents of Nassau County and other parts of the third district must have an honest and accountable representative in Congress," said Anne Donnelly, district attorney for Nassau County. "No one is above the law, and if a crime was committed in this county, we will prosecute it."

However, efforts to investigate Santos and potentially prosecute him for a crime face a major roadblock that's received little attention since the scandal came to light: United States v. Alvarez, a decade-old decision by the nation's highest court.

The Supreme Court in 2012 ruled that the Stolen Valor Act of 2005, which criminalized false statements about earning a military medal, was unconstitutional for violating the free speech protections under the First Amendment.

The case concerned Xavier Alvarez, who won a seat on the public Three Valley Water District Board of Directors in California. At his first public meeting as a new board director in July 2007, Alvarez introduced himself by saying, "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 [the nation's highest military award]. I got wounded many times by the same guy."

All of Alvarez's claims were false. He never served in any branch of the armed forces, was never wounded in combat, and never received any military medal.

As a result, federal prosecutors charged Alvarez with violating the Stolen Valor Act. The case was appealed to the Supreme Court, which ruled 6-3 that the law violated the First Amendment.

Oyez, a project of Cornell's Legal Information Institute, explained the key arguments of then-Supreme Court Justice Anthony Kennedy's majority opinion.

"Content-based restrictions on speech are subject to strict scrutiny and are almost always invalid, except in rare and extreme circumstances," the summary stated. "While categories of speech, such as defamation and true threats, present a grave and imminent threat, false statements alone do not present such a threat. Congress drafted the Stolen Valor Act too broadly, attempting to limit speech that could cause no harm. Criminal punishment for such speech is improper."

In the dissenting opinion, however, Justice Samuel Alito wrote, "Only the bravest of the brave are awarded the Congressional Medal of Honor, but the court today holds that every American has a constitutional right to claim to have received this singular award."

Alito was joined by Justices Antonin Scalia and Clarence Thomas.

Lawmakers responded to the ruling by revising the Stolen Valor Act to comply with the Supreme Court's decision. The resultant Stolen Valor Act of 2013, which was signed into law and still effective, criminalizes false claims about having a military medal if the claims are made with the intention of gaining a tangible benefit or something of value by fraud.

Questions remain over what exactly constitutes fraud for material gain, however.

"The standard understanding of Alvarez is that it prohibits sanctions for factual falsity, as in Alvarez's own case, that are not about particular people," Frederick Schauer, a law professor at the University of Virginia, told Just the News, noting lies about particular people would be libel (if written) or slander (if spoken). "The Supreme Court in Alvarez made clear that its prohibition on sanctions for factual falsity were subject to exceptions only for a few 'historic and traditional categories.'"

One of these categories, according to Schauer, is libel. The Supreme Court also mentioned others such as perjury, lying to a government investigator, and ordinary fraud for material gain.

"It is this last one that raises the question here whether this kind of lying is ordinary common law fraud," said Schauer. "Possibly yes, but the court in Alvarez also stressed that the protection of Alvarez was partly a function of the fact that his speech was public and not the kind of fraud present when a used car dealer lies about the mileage on a car he is trying to sell."

What's broadly accepted is that the Alvarez ruling still applies broadly to false claims with few exceptions.

"Lies are still protected by the First Amendment unless they fall into some other narrow exception," said Andy Craig, director of election policy at the Rainey Center and adjunct scholar at the Cato Institute. "Falsity alone isn't enough. That’s why [the Supreme Court] struck down the Stolen Valor Act, and the Sixth Circuit applied that to strike down an Ohio law banning lies by political candidates."

Craig was referring to the U.S. Court of Appeals for the Sixth Circuit in 2016 striking down Ohio laws banning false political speech as unconstitutional for violating the First Amendment.

The provisions under question prohibited people from disseminating false information about a political candidate in campaign materials during the election cycle "knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate."

In sum, according to Schauer, high court rulings suggest "falsity in the course of a political campaign would run into very heavy First Amendment opposition, even though the circumstances in some sanction would be permitted remains slightly an open question."