Stolen Valor decision victory for free speech, or defeat for military honors?

posted at 2:41 pm on June 28, 2012 by Ed Morrissey

The Supreme Court issued another ruling today apart from the ObamaCare debacle, and it might be more intriguing than the one that got the most attention.  In US v Alvarez, the court decided that a public official’s false claims to have won highly-regarded military honors cannot constitutionally be considered a crime.  In the plurality decision authored by Justice Anthony Kennedy, the court places the highest bar of scrutiny on cases involving free speech, and that the government interest in protecting the military-honors system cannot trump free speech:

In United States v. Alvarez, No. 11-210, a highly anticipated First Amendment case, the Court held six to three that the Stolen Valor Act is unconstitutional. The Stolen Valor Act, 18 U.S.C. § 704, makes it a federal crime to lie about having received a military decoration or medal, punishable by up to a year in prison if the offense involved the military’s highest honors. The key issue in this case is whether knowingly false statements of fact – made without any apparent intent to defraud – are a protected form of speech, and if so, what level of protection they deserve.

Justice Kennedy announced a plurality opinion – joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor – and concluding that the Stolen Valor Act infringes on protected speech. The plurality reasoned that, with only narrow exceptions, content-based restrictions on speech face strict scrutiny, and are therefore almost always unconstitutional. False statements of fact do not fall within one of these exceptions, and so the Stolen Valor Act can survive strict scrutiny only if it is narrowly tailored to a compelling government interest. The Court concluded that the Stolen Valor Act is unconstitutional because the Government had not shown that the statute is necessary to protect the integrity of the system of military honors – the interest the Government had identified in support of the Act.

A concurring opinion argued for a lower bar of scrutiny, but ruled that the Stolen Valor Act didn’t even meet that standard:

Justice Breyer, joined by Justice Kagan, concurred separately, concluding that the Stolen Valor Act, as drafted, violates intermediate scrutiny. These Justices argued that intermediate scrutiny is the appropriate standard because the Government should have some ability to regulate false statements of fact. However, because the statute, as drafted, applies even in family, social, or other private contexts where lies will often cause little harm; it includes few other limits on its scope, and it creates too significant a burden on protected speech. The concurring Justices believe that the Government could achieve its goals in a less burdensome way, and so they too held the Stolen Valor Act unconstitutional.  This opinion leaves open the possibility that Congress will re-write the law more narrowly. Three Justices, led by Justice Alito, dissented.

In this case, the Kennedy opinion will be the controlling precedent, which means that Congress will have a high bar to clear if they want to pass another version of the Stolen Valor Act.  Congress will have to identify a much more pressing and acute interest than just some erosion of the prestige of its honors system.  In fact, it’s not clear that they showed how the actions of Alvarez and others would actually damage that prestige.

Note, too, that the court did not preclude the government from pressing charges of fraud in stolen-valor cases.  If the false statements are intended to (and especially if they result in) a result of illicit financial gain, a charge of fraud is the appropriate remedy.  That’s the case, though, with any knowingly false statement made for illicit financial gain.  If the statements are just lies that don’t result in real damage, then government action shouldn’t be necessary where public shaming will suffice.

Although lying about military service and pretending to be a hero are despicable acts, we don’t want to criminalize them beyond what is already in place to protect people against fraud.  That puts the government in place to exert a great deal of power over free speech on the basis of perceived truth as well as objective truth — which would have implications for all sorts of political debate, such as that over global warming/climate change, and perhaps even religious expression.  In this case, I believe the court got it right.

What do you think?  Take the poll:

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If people can now say they were honored soldiers and were really not, does that mean I can say I’m a Doctor/Lawyer/Pilot and be ok too? After all, it is free speech.

Joe_Snow on June 28, 2012 at 5:13 PM

Valor should be protected as intellectual property under copyright laws. There is intangible value in labor markets for having served in combat; it is an intangible asset and should not be subject to theft by dirtbags who would benefit from it without having earned it. It is a zero-sum game, because if we are all valorous combat veterans there’s not much value in it, is there? However small the incremental amount of property stolen by said dirtbags is, it is greater than zero because if we all did it, it would quite obviously take something of value away from those who earned it. It is really tantamount to simple theft or copyright infringement.

Along the same vein I would like to see the Bernie Madoffs of the world thrown in the general pop along with everyone else who has committed grand theft. Money is money no matter the color of the collar of those stealing it.

stout77 on June 28, 2012 at 5:54 PM

So now FRAUD is considered “free speech.”

The inmates are running the asylum.

logis on June 28, 2012 at 6:38 PM

As a result of this decision, I would suggest that lying about being a lawyer, doctor, policeman, TSA Agent, or anything else should now also be considered constitutionally protected free speech. What’s the difference?

dentarthurdent on June 28, 2012 at 6:40 PM

I would also suggest this means it is now protected free speech to lie about being a US citizen at the voting booth or when stopped by an ICE Agent of cop….

dentarthurdent on June 28, 2012 at 6:43 PM

So now FRAUD is considered “free speech.”

The inmates are running the asylum.

logis on June 28, 2012 at 6:38 PM

I don’t think it is free speech but I assume the fraud has to provide some monetary type gain . No?

CW on June 28, 2012 at 6:52 PM


n. the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right.

CW on June 28, 2012 at 6:53 PM

I don’t think it is free speech but I assume the fraud has to provide some monetary type gain . No?

CW on June 28, 2012 at 6:52 PM

You are correct: The answer is no. Of course fraud does not have to provide monetary gain.

However, in this particular case, it did.

Ergo, you are completely correct insofar as — and only insofar as — you are absolutely wrong in every possible way.

logis on June 28, 2012 at 8:00 PM

From the perspective of public ethics, I think that this decision is one of the worst SCOTUS rulings in the history of the institution. We are now protecting blatant, intentional falsehoods as FREE SPEECH?

This decision is not only a sign of the moral and ethical rot that is infecting American society, it will be a catalyst for more of the same.

SubmarineDoc on June 29, 2012 at 10:06 AM

There is a pretty easy workaround. Pass a law that compels you, any time you run for an election, to file an afidavit with the FEC (or your state equivalent for non-federal elections) in which you declare whether you’ve served in the military and whether you have certain medals (just a quick checklist which anybody but the most decorated veterans could fill out in 60 seconds). The contents are then posted on the FEC’s website, just like donor lists. If you lie on the form, you’ve committed perjury, which is still non-protected speech. If your form says you are not a four-times Purple Heart awardee, but you say so anyway, you will soon be confronted by the press or the oposing candidate.

Now, this still doesn’t keep some non-politician scumbag from, say, tryig to impress a date by saying he was part of the team taking out Osama, but at least we would have something against elected liars like Alvarez.

By the way, does anyone have any stats on how often this stuff happens?

Time Lord on June 29, 2012 at 10:52 AM

I guess now I also don’t have to spend all that money for a masters degree and PhD – I can ust say I have them to get a higher paying job – hey it’s free speech dontcha know…..
So THAT’S the basis for Lizzy Fauxcahontas Warren’s claims… now I get it – free speech to claim anything you want.

dentarthurdent on June 29, 2012 at 11:01 AM

I wonder what would happen if someone said they had Naval Aviator Wings, and didn’t on a job application?

No I am glad because now people will realize that they have to check themselves, which is easily enough done.

Then since it is not illegal people cannot use the excuse that it is a legal issue. If anything gets done, the individuals involved will have to do it.

In formal sanctions and public humiliation really work better than turning some disgusting pogue into a cause celebre.

Denver Bob on June 29, 2012 at 11:07 AM

By the way, does anyone have any stats on how often this stuff happens?

Time Lord on June 29, 2012 at 10:52 AM

Stats? – probably not as you would have to prove every case of who is actually lying about this stuff. But if you want data – look up some of the web sites devoted to outing Navy SEAL and Green Beret frauds – lots of people do stuff like that – many don’t go that far but “embellish” their military experience a lot – same as people who claim college degrees they don’t really have. The defense industry (where I’ve been since 1987 after my AF time) is full of former military people and also lots of fraudsters who claim a more significant military background (and college degrees) than they really have in order to get better jobs.

For the record – I was just a space guy in Cheyenne Mountain for 4 years, no combat, no other assignments, no big time medals, onlya BS degree – and I’ve never said anything beyond that. But I’ve known several people who claim all kinds of crap and were proven eventually to be liars – good way to lose whatever job you got fraudulently.

dentarthurdent on June 29, 2012 at 11:34 AM

As an old Grunt, I am unsettled.
I get the 1st Amendment issue, I also know that public shaming is no longer a big deal in this country, HOWEVER …
When such a claim is made for pecuniary gain, political office being the same, all bets are off.
I also agree that burning the Stars and Stripes is “protected speech”. I just wouldn’t suggest that anyone do that in my presence.

Karl Magnus on June 29, 2012 at 12:19 PM

By the way, does anyone have any stats on how often this stuff happens?

Time Lord on June 29, 2012 at 10:52 AM

This ain’t hell- a website had a whole competition for the fakers they outed last year if that gives you any indication…

melle1228 on June 29, 2012 at 2:17 PM