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

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.

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