SCOTUS and the Stolen Valor Act - First Amendment Protects Lies about Medals Too

The Supreme Court handed down its decision in United States v. Alvarez. Opinion, authored by Justice Kennedy, is here.

The plurality decision was joined by the Chief Justice and Justices Ginsburg and Sotomayor.  It begins:

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for theDetroit Red Wings and that he once married a starlet fromMexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, theStolen Valor Act of 2005. 18 U. S. C. §704.

The background facts are the subject of my earlier posts, here, here and here.  Briefs can be found there too.

The court noted:

It is right and proper that Congress, over a century ago,established an award so the Nation can hold in its high- est respect and esteem those who, in the course of carrying out the “supreme and noble duty of contributing to thedefense of the rights and honor of the nation,” Selective Draft Law Cases, 245 U. S. 366, 390 (1918), have acted with extraordinary honor. And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.

The Government contends the criminal prohibition isa proper means to further its purpose in creating and awarding the Medal. When content-based speech regulation is in question, however, exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment. By this measure, the statutory provisions under which respondent was convicted must be held invalid, and his conviction must be set aside.

The Court continued:

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 Court concluded:

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. Though few might find respondent’s statements anything but contemptible, hisright to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.

Justice Breyer, joined by Justice Kagan concurred in the judgment. Wading through the First Amendment discussions about "intermediate scrutiny," he thinks that Congress could pass a more tightly worded statute that provides the protection for these military awards without running afoul of the First Amendment.

Justice Alito wrote for the dissent, and was joined by Justices Scalia and Thomas. 

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.

Building on earlier efforts to protect the military awardssystem, Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom ofspeech. The statute reaches only knowingly false statements about hard facts directly within a speaker’s per- sonal knowledge. These lies have no value in and of themselves, and proscribing them does not chill anyvaluable speech.

By holding that the First Amendment neverthelessshields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harmand serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality ofthis valuable law.