Thursday, June 28, 2012

SCOTUS Docketwatch: Stolen Valor Act Violates the First Amendment

Before I delve into the healthcare opinion, first comes this crafty little case from the 9th Circuit.  In California, Alvarez was running for local office, and claimed during a Commissioner’s meeting that he was a retired U.S. Marine and recipient of military medals.  HE LIED.  The FBI obtained a recording of his statements, and charged him under the Stolen Valor Act, 18 U.S.C. § 704 (b) (passed in 2005), which criminalizes the making of false statements of being awarded any military honor or medal by Congress.

The 9th Circuit ruled that the act is facially unconstitutional, as a violation of the First Amendment’s protection of speech. The Supreme Court granted cert on the main issue of Whether Knowingly False Statements of Fact (generally speaking and without the intent to defraud) are protected as free speech under the First Amendment?

For reference, here is the text of 18 U.S.C. § 704 (b):

False Claims About Receipt of Military Decorations or Medals.— Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.

In a 6-3 Decision, the majority held that the Act does infringe on free speech.  First Amendment cases have a particularly fascinating and confusing analysis, involving a number of exceptions and different classifications that allow the government to restrict speech in different scenarios.

Here, the Court agreed  with Alvarez that the speech is a Content Based restriction on speech.  Content Based Restrictions are subject to “Exacting Scrutiny” by the Court, which means that to survive, the restriction must first be shown to address a compelling government interest, and then it must be narrowly tailored to meet that interest. 

To give an idea, some exceptions (noting that these are a huge oversimplification of the rules and tests) that would allow the government to impose a Content based restriction include:

  • Speech inciting lawless action (see Brandenburg v. Ohio)
  • Obscenity (see Miller v. California)
  • Defamation (see NY Times Co. v. Sullivan)
  • Speech interpreted to incite criminal conduct (see Gibney)
  • Fighting words (see Chaplinsky v. NH),
  • Child pornography (see New York v. Ferber),
  • Speech sparking an imminent and grave threat to the government (see Minn ex rel Olsen)

The government argument named the interest as protecting the “integrity of the system of military honors”, but the Court ruled that the law was too broad for such a purpose. 

While the Stolen Valor Act may have an admirable goal, Congress drafted it too broadly.  It penalized protected forms of speech that were made without the apparent intent to defraud another.

The Court held that to punish fraud, the false statement “must be a knowing and reckless falsehood” (see Decision at 9-10, citing Sullivan, at 280). The Act seemingly applied to all false statements, made at any time, to any person, and it applied in such an overly broad way that “it does so without regard as to whether the law was made for the purpose of a material gain.” (see Decision at 11, emphasis added). To be valid, the law needs some similar limiting principal, i.e. criminalizing lying about military honors if the perpetrator does so for fraud, material gain, or some other type of benefit over another.

In its analysis, the court could not establish a causal link between the restriction (lying about military honors) and the purported injury of the public losing belief and having a diminished perception in military honors. Instead, the Court found that the government failed to prove that a singular situation or a person lying about receiving military honors would lead to the public’s general diluted interest/esteem in the military honors.


Usually, I would expect considerable backlash against a free speech declaration that goes against Military and Veterans Groups.  However, Congress has already prepared a rewrite of the Bill – the Stolen Valor Act of 2011, H.R.1775,112th Cong. (2011); Stolen Valor Act of 2011, S. 1728, 112th Cong. (2011) (Senate version of the bill, introduced by Sen. Scott Brown (MA) that amends the law to narrowly focus on lying about military honors for the purposes of fraud and misrepresentation. 

1 comment:

  1. :: Crickets ::

    Not many 1st Amendment fans here . . . Interesting