With all the clamor recently about some high-profile Supreme Court rulings– especially, those addressing immigration and healthcare legislation – one case about the exercise of First Amendment free speech rights received little public attention outside of the military communities.
On June 28th, the Supreme Court ruled that the government does not have the power to punish individuals for lying about their receipt of military awards. Such a law, the majority said in a 6 to 3 decision, is an unconstitutional infringement of free speech.
The Stolen Valor Act of 2005 made it a crime for a person to falsely claim, orally or in writing, “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” In 2007, Xavier Alvarez, an elected member of the board of directors for a Southern California water district, falsely claimed at a public board meeting that he had received a Medal of Honor for his service with the Marines. Within days of his statement, community newspapers discovered his lie and labeled him a “jerk”, “cretinous,” and the “ultimate slime.” Charged by Federal investigators with two counts of violating the Stolen Valor Act, Alvarez pleaded guilty as part of a plea bargain while reserving the right to challenge the law on constitutional grounds.
In his challenge, Alvarez argued that his statements were protected under the First Amendment. The United States District Court for the Central District of California rejected the argument, stating that the First Amendment does not protect statements which the speaker knows are false. In 2010, the United States Court of Appeals for the Ninth Circuit reversed the trial court’s decision, on the grounds that upholding a law like the Stolen Valor Act would remove the constitutional bar to criminalizing other lies. The 9thCircuit’s decision cites potential extremes if the Stolen Valor Act were found constitutional, notably, what’s to stop the government from criminalizing lies and exaggerations “about one’s height, weight, age or financial status on Match.com or Facebook?”
The Supreme Court agreed with the 9thCircuit, finding the law too broad to avoid the First Amendment bar. In the opinion, most of the Justices agreed that (1) the First Amendment does not shield knowingly false statements that cause some kind of harm to another and (2) the government had a substantial interest in protecting the honor of the military award system. However, when evaluating restrictions on First Amendment freedoms, the Court applies strict scrutiny; requiring a direct causal link between the restriction imposed and the injury to be prevented. Here the link was not shown because the government failed to demonstrate how Mr. Alvarez’s falsehoods undermined the military’s medal system and it did not show why “counter-speech” (e.g., the ridicule Mr. Alvarez received online and in the press) did not sufficiently protect the public as well as the integrity of military awards.
Concurring opinions written by Justices Breyer and Kagan noted the collateral damage of the Stolen Valor Act as chilling free speech, but they also said the Act had “substantial justification” and believed it could be rewritten. For example, the statute could explicitly require the showing of a specific harm before someone falsely claiming a military honor could be charged with a crime.
The dissenting judges, Justices Alito, Scalia and Thomas, argued that Congress passed the Act because Congress had reasonably determined that the “epidemic of false claims” surrounding military awards actually was inflicting real harm on true medal recipients and their families. According to their position, the harm could always be presumed by virtue of the liar’s false claim.
Many veterans and veteran organizations were disappointed in the Supreme Court ruling. They felt that the criminalization of such lies is the only way to prevent false claims about military awards. However, lawyers for the American Legion, a veterans’ organization, are confident that Congress will pass a Stolen Valor bill that is more narrowly drawn.
In the meantime, Representative Joe Heck, Republican of Nevada, introduced a bill late last year – the Stolen Valor Act of 2011 – that would make it illegal to knowingly misrepresent military service with the intent of obtaining “anything of value.” Supporters of this bill believe it will pass constitutional scrutiny because, while it does restrict speech, the language that is outlawed amounts to fraud. Still, for the new law to satisfy the majority’s constitutional requirements, intent to harm is not enough; actual harm, too, would have to be shown, and “anything of value” may not necessarily amount to such harm. There are lies…and there are dammed lies…
Lizbeth Hasse
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