By Robert Corn-Revere and Erin Reid
The Supreme Court’s June 28, 2012 decision in United States v. Alvarez reaffirmed the important First Amendment principle that the First Amendment “protects the speech we detest as well as the speech we embrace.” The Court voted 6-3 to strike down the Stolen Valor Act, 18 U.S.C. § 704, which made it a federal crime to falsely claim receipt of military decorations or medals, upholding a decision of the U.S. Court of Appeals for the Ninth Circuit.
The key issue in the case was whether the First Amendment protects false statements of fact made without any attempt to defraud or gain anything of value. On this question, six justices agreed that some measure of protection was warranted but disagreed as to the level of protection, while the three dissenters wrote that knowingly false statements are unprotected by the First Amendment.
Writing for a plurality that included Chief Justice John Roberts as well as Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Anthony Kennedy concluded that the Stolen Valor Act failed to satisfy strict First Amendment scrutiny. The plurality noted that, with few exceptions, content-based restrictions on speech always face strict scrutiny, and are therefore almost always unconstitutional. Applying a finding from two Terms ago in United States v. Stevens, Justice Kennedy observed that false statements of fact do not fall within any of the historically recognized exceptions to the First Amendment (such as defamation, obscenity, incitement, or fraud), and that the Court was not going to create a new exception without some historical basis.
The plurality opinion contrasted the Stolen Valor Act with statutes that punish fraud, defamation or false claims made in an attempt to gain something of value. It distinguished the prohibition on false statements in the Stolen Valor Act in that it sought to “control and suppress all false statements on this one subject made in limitless times and settings,” and applied “without regard to whether the lie was made for the purpose of commercial gain.” Empowering the government to prohibit false statements without proof of some kind of harm would have “no clear limiting principle,” according to the plurality.
Justice Kennedy faulted the government for failing to present any evidence that a criminal prohibition on speech was necessary to protect the integrity of military honors and the esteem accorded to the public for them. In particular, the government did not explain “why counterspeech would not suffice to achieve its interest.” Citing an amicus brief Davis Wright Tremaine LLP filed on behalf of the Reporters Committee for Freedom of the Press and twenty-three news media organizations, Justice Kennedy wrote, “[t]he remedy for speech that is false is speech that is true. 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.”
Justice Kennedy wrote that the public’s reaction in exposing liars and expressions of outrage and contempt toward faux heroes “can serve to reawaken and reinforce the public’s respect for the Medal, its recipients, and its high purpose.” The United States does not need a “Ministry of Truth” as in George Orwell’s Oceania, he explained, because “[t]ruth needs neither handcuffs nor a badge for its vindication.”
Justice Stephen Breyer, joined by Justice Elena Kagan, concurred separately. Justice Breyer agreed with the plurality’s holding that the Stolen Valor Act violated the First Amendment but disagreed with the plurality’s holding that strict scrutiny was the appropriate standard of review. Breyer argued that “intermediate scrutiny” or “proportionality” was the proper analytical framework for the courts to use in those instances such as here, in which a statute adversely affects constitutionally protected interests but warrants neither near-automatic condemnation (as “strict scrutiny” implies) nor near automatic approval (as is implicit in “rational basis review”), because the government should have some ability to regulate false statements of fact.
Nevertheless, the concurring Justices agreed that the Stolen Valor Act is unconstitutional because the statute lacked any limiting factors and applied in family, social, or other contexts where it would often cause little harm. Both the concurring Justices and the plurality opinion suggested that a less restrictive alternative, such as a publicly available government database listing medal winners, might be sufficient to serve the government’s interest.
Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, dissented on grounds that false statements about military medals merit no First Amendment protection whatsoever. Analogizing the Stolen Valor Act to speech such as fraud, defamation or lies to government agencies — speech the courts have consistently held can be prohibited within the confines of the First Amendment– the dissenters argued that the Government should be allowed to prosecute those who lie about having earned military honors. The dissenters acknowledged that false statements might gain constitutional immunity when their prohibition would chill otherwise protected speech, but concluded the lies prohibited by the Stolen Valor Act do not rise to that level.
In the wake of the Alvarez decision Congress may try to rewrite the law to impose a narrower restriction on speech. Last year, Congressman Joe Heck introduced the Stolen Valor Act of 2011 which would make it a crime to lie about serving in the military or earning a military decoration in order to obtain some tangible benefit. If adopted, such a restriction may have a better chance of surviving constitutional review.