Thursday, June 28, 2012
The Stolen Valor Act, 18 USC §704(b) criminalizes false representations, verbal or written, that one has been "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." The penalty is enhanced if the statements relate to the Congressional Medal of Honor, the Purple Heart, and other specified awards.
Kennedy's plurality, joined by Roberts, Ginsburg, and Sotomayor, begins "Lying was his habit," a move taken directly from the arguments of Alvarez' attorneys. The plurality noted that there was a circuit conflict, although the Tenth Circuit opinion was decided a month before oral argument, and interestingly focused on Snyder v. Phelps as another recent case in which the Court considered speech that disparaged - - - or attempted to steal - - - "honor that belongs to those who fought for this Nation in battle."
The plurality considered the statute as content-based (but not viewpoint discrimination). The main rationale in the plurality's opinion was the breadth of the Stolen Valor Act, and it engaged in slippery slope rhetoric and a citation to the Orwell's famous novel 1984:
Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. . . . Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. 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 concurring opinion, authored by Justice Breyer and joined by Kagan, disclaimed a "strict categorical analysis" in favor of "intermediate scrutiny" or "proportionality review." Breyer's concurring opinion also eschewed the categorical approach that lies were absolutely unprotected speech:
I must concede, as the Government points out, that this Court has frequently said or implied that false factual statements enjoy little First Amendment protection. [Citations omitted]. But these judicial statements cannot be read to mean “no protection at all.” False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.
Justice Alito, dissenting and joined by Scalia and Thomas, stressed the importance of the government interest at stake, not surprisingly given his queries at oral argument. His opinion began:
Only the bravest of the brave are awarded the Congressional Medal of Honor, but the Court today holds that every American has a constitutional right to claim to have received this singular award. The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false claims about military decorations. These lies, Congress reasonably concluded, were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families.
Alito would have carved out a special exception for Stolen Valor:
In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumen- tal purpose that the First Amendment might protect.
The decision is consistent with much of the popular opinion expressed regarding the case, but also with the Court's most recent pronouncements in United States v. Stevens (crush-porn) and Brown v. Entertainment Merchants Association (violent video games) refusing to carve out a category of speech from First Amendment protection.