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First Amendment – Stolen Valor Act

United States v. Alvarez, USSC No. 11-210 (6/28/12), affirming 638 F.3d 666 (9th Cir. 2011).

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, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression. (Slip. 0p., at 18).

What did the respondent, Xavier Alvarez, lie about?  Judging from the plurality opinion pretty much everything:

Lying was his habit.  [Alvarez] lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. 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, the Stolen Valor Act of 2005.  18 U. S. C. §704. (Slip. op. at 1)

According to the majority, in “a pathetic attempt to gain respect that eluded him,” Alvarez introduced himself to California’s Three Valley Water District Board as a retired marine of 25 years and a recipient of the Congressional Medal of Honor. He wasn’t trying to gain employment, financial benefits, or privileges reserved for actual recipients of the Medal. And that’s what sets this case apart from prior First Amendment cases protecting false statements. The Stolen Valor Act targets falsity. That’s it.  (Slip. op., at 2, 7).

Six justices struck down the Act as unconstitutional. The plurality (Kennedy, Roberts, Ginsburg, Sotomayor) held that the Act did not survive “strict scrutiny.” Declaring this speech a criminal offense, they said, would authorize the government “to compile a list of subjects about which false statements are punishable.” (slip. op. 11). Imagine the list of banned subjects. Where would it end? A concurring opinion by Breyer (and Kagan) concluded that the Act failed the “intermediate scrutiny” test. That created a 4-2-3 holding that the Stolen Valor Act violates the First Amendment.  (Re the precedential effect of splintered decisions, click here.) The dissenters, Alito, Scalia, Thomas, argued that the the First Amendment did not shield Alvarez’s lies and thus would uphold the Act as written. For more details, see Scotusblog’s analysis of the decision, click here.

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