In a June 28, 2012 ruling that struck down a federal law known as the “Stolen Valor Act,” U.S. Supreme Court Justice Anthony Kennedy wrote that “the remedy for speech that is false is speech that is true,” not government suppression, even when the speech “can disparage, or attempt to steal, honor that belongs to those who fought for this nation in battle.”
United States v. Alvarez was a case challenging 18 U.S.C. §§704 (b)(c), a federal statute passed in 2006 which made lying about receiving military awards or medals, especially the Congressional Medal of Honor, a crime punishable by a fine and up to a year in jail. Kennedy, writing for a plurality of the court, wrote that the government failed to meet its burden under the First Amendment to show “a direct causal link between the restriction imposed and the injury to be prevented.” In a concurrence, Justice Stephen Breyer argued that the court should have applied a less stringent level of scrutiny because false statements are less likely to make a valuable contribution to society than truthful ones, and suggested that a more narrowly drawn statute might be considered constitutional. Justice Samuel Alito dissented, arguing that the ruling broke with “a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest.” The vote was 6 to 3 in favor of striking down the law.
The case arose in 2007 after defendant Xavier Alvarez was charged under the law for falsely introducing himself at a Claremont, Calif. water district board meeting as a recipient of the Medal of Honor as a Marine in 1987. “Lying,” Kennedy wrote, “was his habit.” Alvarez had also claimed to have been a member of the Detroit Red Wings hockey team and to have been married to a Mexican movie star. Kennedy described Alvarez’s statements as part of “a pathetic attempt to gain respect that eluded him.” But Alvarez’s false statement claiming a military decoration led to charges under the Stolen Valor Act, to which Alvarez later pled guilty in federal district court, reserving the right to challenge the law’s constitutionality. In 2010, a panel of the 9th Circuit U.S. Court of Appeals ruled 2 to 1 that the law was unconstitutional; the 9th Circuit subsequently denied the government’s request for a rehearing by the panel or by the full court.
In an 18-page opinion joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor, Kennedy wrote that because the Stolen Valor Act restricted speech based on its content, it was “presumed invalid” and therefore the government bore the burden of proving its constitutionality. Content-based restrictions on speech have historically only been permitted when they fall into a few categories, including that which advocates and is likely to incite “imminent lawless action,” obscenity, libel, “fighting words,” fraud, “true threats,” and “speech presenting some grave and imminent threat the government has the power to prevent,” Kennedy explained. “Absent from those few categories,” Kennedy wrote, “is any general exception to the First Amendment for false statements.” United States v. Alvarez, 132 S. Ct. 2537 (June 28, 2012)
In defense of the statute, the government cited several landmark Supreme Court cases to support the proposition that false statements are not constitutionally protected. For example, in the 1979 case Herbert v. Lando, 441 U.S. 153 (1979), the court stated that “spreading false information in and of itself carries no First Amendment credentials,” and in 1964 in Garrison v. Louisiana, 379 U.S. 64 (1964), that “the knowingly false statement and the false statement made with reckless disregard of the truth do not enjoy constitutional protection.” But Kennedy responded that the government’s argument took “the quoted language far from its proper context.” The cited statements “derive from cases discussing [a] legally cognizable harm associated with a false statement,” Kennedy wrote; although the falsity of the speech was relevant to the analysis in those cases, it was not “determinative.” Kennedy concluded, “the Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.”
Because the statute restricted speech based on its content, the plurality applied a standard described in Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994) as the “most exacting scrutiny,” under which the government must assert a “compelling interest” advanced by the statute and show that the restriction of speech that results from the statute is “actually necessary” to achieve its interest. Kennedy quoted a passage from the 2011 case Brown v. Entertainment Merchants Association, 131 S. Ct. 2729, to boil down the standard: “There must be a direct causal link between the restriction imposed and the injury to be prevented.” (For more on that case, see “U.S. Supreme Court Strikes Down Ban on Violent Video Game Sales to Minors” in the Summer 2011 issue of the Silha Bulletin.)
Kennedy wrote that the military medals program has a history stretching back to the American Revolutionary War and that the government offered ample evidence of the program’s importance as a means of encouraging public recognition and gratitude and boosting troop morale and “esprit de corps.” However, the government did not offer any evidence that Alvarez’s lie — or any other such lie — has harmed the public’s perception of military awards. Moreover, Kennedy wrote, “the government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest.” Kennedy wrote that once it became public that Alvarez’s claim about being a recipient of the Congressional Medal was false, he was ridiculed online and his resignation from the water board was demanded. Kennedy added that an amicus brief from the Reporters Committee for Freedom of the Press had listed numerous examples of false claimants of military medals who had been publicly exposed and shamed. “Indeed,” Kennedy wrote, “the outrage and contempt expressed for respondent’s lies can serve to reawaken and reinforce the public’s respect for the Medal, its recipients, and its high purpose.”
The statute was also not the “least restrictive means among available, effective alternatives,” Kennedy wrote, which the First Amendment requires when a government regulation extends to protected speech. The government could create a publicly available database of award recipients, for example, making it “easy to verify and expose false claims.” Kennedy noted that a private group, the Congressional Medal of Honor Society, maintains such a list. A government feasibility report ruled out an award list in 2008.
In sum, Kennedy wrote for the court’s plurality that the Stolen Valor Act, particularly because it lacked a requirement that the government prove specific harm that arose from a lie, must be struck down. If upheld, the law “would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition” and “would endorse government authority to compile a list of subjects about which false statements are punishable. … The mere potential for the exercise of that power casts a chill, a chill theFirst Amendmentcannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”
Breyer, joined by Justice Elena Kagan, concurred in the case’s outcome and agreed that the Stolen Valor Act was unconstitutional, but reached that conclusion by a different analysis. Breyer wrote that because “false statements about easily verifiable facts” do not make a valuable contribution to public discourse, the court should have applied a lower standard of analysis — “intermediate scrutiny” — under which the statute could be considered constitutional if the government interest in protecting the military awards program outweighed the First Amendment harm it caused.
In contrast to the plurality opinion, Breyer gave greater weight to the government’s contention “that this Court has frequently said or implied that false factual statements enjoy little First Amendment protection,” but, he added, “these judicial statements cannot be read to mean ‘no protection at all.’” Breyer noted that “many statutes and common law doctrines make the utterance of certain kinds of false statements unlawful,” such as those prohibiting fraud, defamation, perjury, and trademark infringement, but all of these legal prohibitions include limitations that “narrow [them] … to a subset of lies where specific harm is more likely to occur.” The Stolen Valor Act carries no such limitations, Breyer wrote, which might otherwise have allowed it to survive constitutional scrutiny. He suggested that a more narrowly tailored statute, such as one that applied only to particularly prestigious medals or to “lies most likely to be harmful” could be considered constitutional under intermediate scrutiny.
In a dissent joined by Justices Antonin Scalia and Clarence Thomas, Alito argued that the law should be considered a constitutional means to stem “an epidemic of false claims about military decorations” which “were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families.” Alito called the Stolen Valor Act a “narrow statute that presents no threat to the freedom of speech.”
Alito wrote that the statute was Congress’ response to “a proliferation of false claims,” noting that, for example, according to The Philadelphia Inquirer in 2004, more than 600 Virginia residents falsely claimed to have won the Medal of Honor in a single year, and according to Marine Corps Times in 2007, 24 of 49 people interviewed for a Library of Congress oral history project about veterans falsely claimed to have received the award. False claimants reportedly lied in order to receive “lucrative contracts and government benefits,” Alito wrote.
Alito disputed the assertion by Kennedy and Breyer that a government database could thwart false claims, citing the military’s conclusion that a comprehensive database could not be compiled. The absence of proof for or against peoples’ claims about military awards would only create more uncertainty about them, Alito wrote, undermining Kennedy’s contention that “counterspeech” offers a better solution than a criminal statute. “In addition, a steady stream of stories in the media about the exposure of imposters would tend to increase skepticism among members of the public about the entire awards system. This would only exacerbate the harm that the Stolen Valor Act is meant to prevent,” Alito wrote.
Alito also rejected the suggestions by the plurality and concurrence that a similar statute might be upheld if it required a showing of actual harm, such as a financial loss. “Unless even a small financial loss — say, a dollar given to a homeless man falsely claiming to be a decorated veteran — is more important in the eyes of the First Amendment than the damage caused to the very integrity of the military awards system, there is no basis for distinguishing between the Stolen Valor Act and the alternative statutes that the plurality and concurrence appear willing to sustain,” Alito wrote.
Alito contended that “time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value,” and called the plurality opinion “a dramatic — and entirely unjustified — departure from the sound approach taken in past cases.” He cited a long list of U.S. Supreme Court statements, common law principles, and federal statutes that have either been ruled constitutional or never faced a constitutional challenge, examples which he argued “amply demonstrate that false statements of fact merit no First Amendment protection in their own right.”
Alito also rejected the concerns raised by Kennedy and Breyer that the law could chill speech that had social value. “The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumental purpose that the First Amendment might protect,” Alito wrote. “Tellingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none.”
Opponents of the ruling may not have to wait long for the passage of a more narrowly drawn law. In May 2011, Congressman Joe Heck (R-Nev.) introduced H.R. 1775, titled “The Stolen Valor Act of 2011” which punishes false claims of military awards made “with intent to obtain anything of value.” In a June 28, 2012 press release, Heck said, “now that the Supreme Court has laid down this marker, I will be pushing for a vote on a version of the Stolen Valor Act that will pass constitutional scrutiny.” The press release said the new “Stolen Valor” bill has 52 bipartisan co-sponsors, and its companion bill, S. 1782, has been introduced in the Senate by Sen. Scott Brown (R-Mass.).
The Associated Press reported July 11 that the Defense Department is now working on creating a searchable digital database of award recipients, despite their argument in Alvarez that doing so would not be feasible. Pentagon Press Secretary George Little said no final decisions have been made about the details of the database. “There are some complexities involved in looking back into history,” Little said. “We would obviously hope to be able to go as far back as possible, but we also want there to be integrity in the data.”
– Patrick File
Silha Bulletin Editor