In United States v. Alvarez, a highly anticipated First Amendment case with a quirky fact pattern, the Court held in a vote of six to three that the Stolen Valor Act is unconstitutional. Justice Kennedy announced the opinion for a plurality of the Court (he was joined by the Chief Justice as well as Justices Ginsburg and Sotomayor). Justices Breyer and Kagan concurred, suggesting that if Congress re-enacted the law with additional limitations, it might be constitutional.
The Stolen Valor Act, 18 U.S.C. § 704, makes it a federal crime to lie about having received a military decoration or medal, punishable by up to a year in prison if the offense involved the military’s highest honors. In this case Xavier Alvarez, recently elected to the Board of Directors of the Three Valley Water District in southern California, announced to his colleagues – for no apparent reason – that he had been awarded the Congressional Medal of Honor and that he had been wounded during active duty as a United States Marine. In reality, Alvarez had never even served in the military. He was prosecuted and pled guilty to one count of violating the Stolen Valor Act, but reserved his right to challenge the constitutionality of the statute.
The key issue is whether the First Amendment protects false statements of fact – made without any apparent intent to defraud or gain anything – and if so, what level of protection they deserve. On this question, the plurality, the concurrence, and the dissent all reached different results. Six Justices agreed that some protection was warranted, but disagreed as to the amount, and three Justices believe that the First Amendment does not protect such lies at all.
Justice Kennedy’s plurality opinion concluded that the Stolen Valor Act must survive “strict scrutiny,” the most rigorous First Amendment standard, because it imposes content-based restrictions on speech. The plurality reasoned that with only narrow exceptions, content-based restrictions on speech always face strict scrutiny, and are therefore almost always unconstitutional. The plurality held that false statements of fact do not fall within a historically recognized exception, and so the Stolen Valor Act can survive only if it is narrowly tailored to a compelling government interest – the standard for strict scrutiny.
Applying that test, the Court concluded that the Stolen Valor Act is unconstitutional because the government had not shown that the statute is necessary to protect the integrity of the system of military honors. The plurality explained first that the Stolen Valor Act posed a significant – and perhaps unique – threat to protected speech. Contrasting the Stolen Valor Act with laws punishing “false claims . . . to effect a fraud or secure moneys or other valuable considerations,” the plurality noted that the Stolen Valor Act “seeks to control and suppress all false statements on this one subject in almost limitless times and settings,” and applies “without regard to whether the lie was made for the purpose of material gain.” The plurality cautioned that if the Stolen Valor Act were upheld, it would justify regulation of speech regarding “an endless list of subjects.”
Against those concerns, the plurality noted that the government had failed to present evidence that a criminal prohibition on speech was necessary to protect the public’s esteem for military honors. It noted that the government had not provided evidence that the significance of medals had been diluted, and most importantly it argued that counterspeech, i.e., publicizing lies about military honors, could address the problem.
Justice Breyer, joined by Justice Kagan, concurred separately, concluding that the Stolen Valor Act merits only intermediate scrutiny. Under this test – which applies when “a statute adversely affects constitutionally protected interests but warrants neither near-automatic condemnation (as ‘strict scrutiny’ implies) nor near-automatic approval” – courts ask whether restrictions on speech are proportional to the corresponding government interest. The concurring Justices argued that intermediate scrutiny should apply here because the Government should have some ability to regulate false statements of fact. However, because the statute, as drafted, applies even in family, social, or other private contexts where lies are unlikely to cause harm, it creates too significant a burden on protected speech. Because the government could achieve its goals in a less burdensome way, the concurring Justices agreed with the majority that the Stolen Valor Act is unconstitutional.
Three Justices, led by Justice Alito, dissented, arguing that false statements about military medals merit no First Amendment protection whatsoever. Likening such statements to fraud, defamation, or lies to government agencies, all of which can be prohibited consistent with the First Amendment, the dissenters argued that the government should have a free hand to prosecute those who lie about having earned military honors. The dissenters recognized that false statements may be protected when laws restricting them might chill otherwise protected speech, but argued that the Stolen Valor Act does not implicate that concern because the subject matter of the lies does not relate to any protected expression.
Under today’s decision, the Stolen Valor Act is unconstitutional as drafted. However, Congress could almost certainly re-enact a version of the law. In fact, an effort to do so, spearheaded by Congressman Joe Heck of Nevada, has been underway for some time. Heck’s law, the Stolen Valor Act of 2011, makes it a crime to lie about serving in the military or earning a military decoration in order to obtain anything of benefit. Noting that the majority and the concurrence expressly contrasted the Stolen Valor Act with fraud statutes and other laws that prohibit lying for gain, it appears that Heck’s bill would have a significantly stronger chance of surviving constitutional scrutiny.