Supreme Court rules Stolen Valor Act unconstitutional

Emily Miller | Content Regulation | News | June 28, 2012

The U.S. Supreme Court ruled Thursday that a federal law that criminalizes lying about military medals violates the First Amendment.

In a 6-3 decision, the Court affirmed the ruling of the U.S. Court of Appeals in San Francisco (9th Cir.) in United States v. Alvarez that the federal Stolen Valor Act was unconstitutional because of the severe limitations it placed on the First Amendment.

“When content-based speech regulation is in question, however, exacting scrutiny is required,” wrote Justice Anthony M. Kennedy in the court's opinion. “Although the objectives the Government seeks to further by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny.”

However, two justices, Stephen G. Breyer and Elena Kagan, concurred in the judgment but applied a lower, "intermediate" standard of review in striking down the statute. As a result, the Court's opinion simply finds the law unconstitutional with no controlling opinion as to its legal rationale.

Under "intermediate scrutiny," the Court balances all competing interests, as opposed to the higher standard of exacting (or "strict") scrutiny, which requires that a law be narrowly tailored to serve a compelling government interest in order to survive a constitutional challenge.

According to Kennedy's plurality opinion, the government failed to prove that lying about receiving a medal diminishes the honor it confirms and also creates the appearance that such medals are commonplace.

Justices Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Chief Justice John G. Roberts, Jr., concluded, and Justices Breyer and Kagan concurred, that the Act, as presently written, is unconstitutional. Justices Samuel Anthony Alito, Jr., Antonin Scalia and Clarence Thomas dissented.

“The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace,” the opinion states.

The Stolen Valor Act of 2005 made it a criminal offense to make statements “falsely representing oneself as having been awarded any decoration or medal authorized by Congress for the Armed Forces or any of the service medals or badges.”

According to the opinion, the Act is written too broadly and, if upheld, would “give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.”

“The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings,” the opinion states. “The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”

The Court added that the Act targets nothing but falsity and “falsity alone may not suffice to bring the speech outside the First Amendment.”

The Reporters Committee for Freedom of the Press and 23 news media organizations filed a friend-of-the-court brief in Alvarez, stating that criminalizing false speech would weaken the freedom of the press and “would open the door for broad new classes of unprotected speech in which the only limiting principle is whatever degree of ‘instrumental protection’ the government believes is enough to protect ‘speech that matters.’”

Kennedy cited the Reporters Committee's brief for its examples of how public exposure can mitigate a lie and discredit its source, particularly in cases where false claims were made of military heroism.

First Amendment attorney Robert Corn-Revere, who authored the Reporters Committee's brief, said cases like Alvarez test the strength of the United States' commitment to free expression.

“We’re delighted that the Court has reaffirmed the basic constitutional principles and rejected the notion that the government can be the arbiter of truth,” he said. "The marketplace of ideas provides the best test of truth rather than having some government mandate.”

Military veteran Doug Sterner, who runs the Home of Heroes website where medal recipients can be verified, said the fight is not over for people like him who believe in the Stolen Valor Act.

"We are going to mobilize our forces to come up with a Stolen Valor Act that will pass Congressional muster," Sterner said.

Related Reporters Committee resources:

· NM&L: Stolen Valor

· News: Supreme Court weighs arguments in Stolen Valor case

· Brief: United States v. Alvarez

· News: Lying about military service protected speech, court affirms