Tejinder Singh Guest

Posted Thu, October 13th, 2011 12:58 am

The Stolen Valor Act

Today’s discussion is about the Stolen Valor Act, 18 U.S.C. § 704, the federal statute that criminalizes falsely claiming to have earned military honors. Two federal courts have struck down the Act on First Amendment grounds, and the United States has a pending petition for certiorari review of the Ninth Circuit’s decision in United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010). The core constitutional issue in the case is whether and to what degree the First Amendment protects false statements of fact. The case also raises the additional issue of which governmental interests qualify as sufficiently compelling to justify content-based regulation of speech under the First Amendment.

Please share your thoughts on whether you think the Stolen Valor Act is constitutional, and on what you think the Court will and should do with the Act this Term.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on whether the Court should or will hear a case on the Stolen Valor Act this Term.

    • David LeRoy – 4 Promoted Comments

      First, I did not realize that misrepresentation of military medals and honors was such a major problem in the US that it would require Federal legislation in the first place. With so many other problems facing this country, I have to agree that this amounts to “feel good” legislation as someone else has mentioned.
      Second, the state’s alleged interest in this is preserving the dignity and honor of those who did actually receive these awards in service to their country. However, it still begs the original question as to why Federal legislation is required in the first place. If the purpose is to deter sullying the reputation of the honor themselves, is a Federal law necessary? Look at the embarrassment caused to political aspirants who misrepresented their military activity and alleged honors. They suffer in the marketplace. Blumenthal in Connecticut comes immediately to mind- by misrepresenting his military service, his reputation took a hit (although he did win office). Look at the case of John Kerry who actually discarded his medals, admittedly in a political statement and thus protected under the First Amendment. But, what if he was cleaning his closet one day and, in an effort to save space, decided to throw away his medals in the trash. Could he be prosecuted under this law? I see no qualitative difference between this hypothetical and making false claims to having the medal in the first place.
      Third, one can suppose that this practice is done for the purpose of self-aggrandizement or even monetary gain. As such, one would think that this would fall under some existing fraud statute. For example, someone lying on an employment application about their military service or any honors received could, when and if discovered, be terminated for lying on their application. It is my understanding that the law punishes alleged offenders regardless of “gain.” That, to me, makes me suspicious regarding the breadth of the law. For that reason alone, I would imagine it should be struck down by the Court.
      In the end, I don’t believe this case really rises to the level of Supreme Court review and that they will not even grant cert and let the decision of the Ninth Circuit stand. It will be back to the drawing board for Congress and hopefully this will not be high on the list of Congressional priorities. With all the “fact check” organizations out there, public embarrassment is a greater motivator to deter these actions than the heavy hand of the Federal government.

      • Matt Matson – 1 Promoted Comment

        Dave LeRoy’s first three points are: 1. The Act does not address what he considers to be an important problem, 2. The law might not be “necessary” where embarrassment and “fact checking” can deter, and 3. Other laws might cover the same wrongful conduct. I don’t see how these contentions are relevant to determining whether the Act is prohibited by the Constitution.

        He also suggests there is a problem with punishing conduct where the wrongful act did not result in economic gain or loss. However, this thought is inchoate. I don’t understand why evidence of specific economic gain or harm is relevant to determining whether a specific speech act is subject to a criminal penalty. Moreover, given a military honor has some economic value to a recipient, permitting others to falsely claim they have received the honor naturally causes (a truthful claim to receiving) the honor to lose value.

    • David Hudson – 1 Promoted Comment

      The U.S. Supreme Court could very well review the constitutionality of the Stolen Valor Act in U.S. v. Alvarez (11-210) or a future case. There are several reasons for this.

      (1) The 9th Circuit – 9th Circuit decisions do seem to be reviewed more frequently than other circuits – and other lower federal courts have invalidated a federal law;

      (2) There are several Stolen Valor Act cases with First Amendment issues percolating in the lower courts.

      (3) Furthermore, there is a split developing in those lower courts. A federal district court in Virginia in the U.S. v. Robbins case, http://www.firstamendmentcenter.org/federal-judge-upholds-stolen-valor-act, upheld the law, while the courts in Alvarez and Strandlof have invalidated the law.

      (4) The Court could use the opportunity to clarify the different strands of thought in its Gertz v. Welch (1974) defamation decision. In one passage the Court warned “that there is no constitutional value in false statements of fact.” However, the Court also wrote in another passage: “The First Amendment requires that we protect some falsehood in order to protect speech that matters.” Proponents and opponents of the Stolen Valor Act cite these differing passages in Gertz.

      (5) The O’Scannlain factor – It was Diarmuid O’Scannlain’s special concurring opinion in Garcetti v. Ceballos that possibly attracted Supreme Court attention ultimately review. Those in the First Amendment community know how that turned out – an indelibly important First Amendment decision that limited the free-speech rights of public employees. http://www.firstamendmentcenter.org/garcettized-06-ruling-still-zapping-speech. He did the same thing in the Alvarez case, writing in dissent: “This is the first court of appeals decision to consider the constitutionality of the act, but the court’s opinion is not merely unprecedented; rather, it runs counter to nearly 40 years of Supreme Court precedent.”

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on whether the Stolen Valor Act serves a compelling government interest.

    • Clay Calvert – 1 Promoted Comment

      As a content-based restriction on speech, the Stolen Valor Act requires a compelling interest – an interest of the highest order – to justify its constitutional validity. The amorphous, intangible injury to the honor and dignity of those who have actually won medals, as well as the harm to the medals themselves as symbols of heroism, simply do not suffice. The high court’s ruling in Texas v. Johnson suggests that while the government certainly does have a legitimate interest in preserving the American flag as a symbol of nationhood and national unity, a legitimate interest is not the same thing as a compelling interest. Ultimately, the Stolen Valor Act amounts to feel-good legislation. If real fraud occurs due to a misrepresentation about having won a medal, then principles of fraud can adequately address that. Absent that, counterspeech – exposing and shaming imposters – is the proper remedy for their offensive expression, and we know that the right to offend is alive and well, as the Court’s ruling in the Westboro Baptist Church case of Snyder v. Phelps proved earlier this year.

    • Bradley Smith – 3 Promoted Comments

      The Stolen Valor Act addresses a narrow form of speech that serves no political aim. Recent speech cases such as Texas v. Johnson (1989), Snyder v. Phelps (2011), or Brown v. EMA (2011) differ from the U.S. v. Alvarez in that key aspect. Flag burning, funeral protests, and violent video games can serve as a means to promulgate political ideas, and as abhorrent as some the specific instances may be, such speech must be allowed.

      With that difference in mind, the Stolen Valor Act does not appear to violate the 1st Amendment. Lying, according to Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976), “has never been protected for its own sake.” In deciding this case, the Court cited Gertz v. Robert Welch, Inc. (1974) to clarify, and said that false speech must often be protected in order to avoid a chilling effect on free speech, because ““[a]lthough the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable
      in free debate.”

      Falsely claiming to have been awarded a military honor does not fall within the bounds of the exception carved out by Gertz. The Stolen Valor Act addresses deception that is knowlingly done for personal gain, and would not inevitably occur in free debate.

      Based on this, the act itself does not appear unconstitutional. However, it also does not appear to serve a compelling government interest. The harm that any one person can do by falsely claiming to have received a military honor is negligible, and any instance where the consequences have the potential to be severe the statement is likely to be independently verified. The act appears to be superfluous, as laws regarding fraud and perjury address the issue just as fully. However unnecessary the Stolen Valor Act may be, it does not, in and of itself, violate Free Speech.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on whether and to what degree false statements of fact merit First Amendment protection.

    • – 1 Promoted Comment

      With the current speech-friendly Supreme Court, many legal scholars and practitioners will expect the Court to affirm the Ninth Circuit, striking down the Stolen Valor Act as unconstitutional. (That is, if the Court does grant cert and takes up the case. I expect it will.) Nonetheless, a strong argument can be made the Stolen Valor Act is, in fact, constitutional.

      While there is plenty of Supreme Court precedent on defamation, neither the Court nor lower courts have endorsed any consistent approach for assessing the First Amendment status of false speech restrictions outside that context. But past caselaw involving false speech—inside and outside the defamation context—suggests that the Court has been, and presumably still is, wary about false speech restrictions that: result in erroneous convictions for actually truthful speech; risk chilling other protected speech “that matters”; are not justified by a sufficient government interest; or restrict false speech that may effectively be corrected in the marketplace of ideas. In my Comment, which I link to below, I argue that all of these factors except the last one point in favor of finding the Stolen Valor Act constitutional.

      The Act criminalizes self-aggrandizing false statements that are verifiable and unlikely to fall into the category of political speech, which is at the core of the First Amendment. And if an exceptional false statement about one’s military honors did constitute political speech, it could still be challenged on an as-applied basis even if the Court were to find the Act facially constitutional. The absence of an explicit knowledge requirement doesn’t seem fatal either, as the Court could read in a knowledge requirement to save the statute from unconstitutionality, or could interpret “represent” in a way to include knowledge of the falsity of the speaker’s statement.

      An issue, however, that is getting short shrift in discussions of the Stolen Valor Act’s constitutionality is whether the Act satisfies the requirements of R.A.V. v. City of Saint Paul. One may take the dictum in Gertz v Robert Welch, Inc at its face—maintaining that false statements have no constitutional value in themselves—and still be concerned that isolating false statements about a particular subject matter, military honors, for restriction raises a constitutional problem under R.A.V. The Stolen Valor Act is undoubtedly a content-based restriction, so it needs to satisfy one of the R.A.V. exceptions. It most likely would fall into the catch-all exception, permitting speech restrictions where “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” R.A.V., 505 U.S. at 390. But if the Court wanted to strike down the Stolen Valor Act without having to opine on the First Amendment status of false speech restrictions more generally, and potentially putting the constitutionality of numerous other false speech restrictions* into doubt, using R.A.V. could be an effective means of doing so.

      *Such as the frequently employed 18 U.S.C. § 1001, which makes it a crime to knowingly and willfully make false or fraudulent statements to federal government officials.

      Here is a link to a draft of my Comment, which lays out the arguments above, and others, in more detail: Josh M. Parker, The Stolen Valor Act as Constitutional: Bringing Coherence to First Amendment Analysis of False Speech Restrictions, 78 U Chi L Rev ____ (Forthcoming 2011).

    • Richard Epstein – 1 Promoted Comment

      The Stolen Valor Act of 2005 makes it a federal misdemeanor for any person to state falsely that he or she has received any U.S. military decoration of medal. The statute carries with it jail terms of up to six months for most representations and up to a year for false statements that a person has received the Congressional Medal of honor. Under this law, there is no requirement that the misrepresentation has caused injury to any person who has relied upon that statement to his or her detriment. The offense is complete with the misrepresentation itself.

      The common view of many First Amendment scholars is that this particular statute should be regarded as unconstitutional. The common view is that this particular speech is somehow regarded as high value so that the federal government can limit that speech only on a showing of a compelling state interest, which cannot be found in this case, given that common law and statutory remedies for fraud are available whenever innocent people rely on this message for their own benefit.

      I think that this analysis is wrong. The starting point is that there is in my view never any level of protection that should be given for false speech in and of itself. The notion of freedom of speech is not that all speech is free, but that speech should be free so long as it operates within the traditional libertarian boundaries, that is, so long as that statement is not involved with the use of force or fraud. This speech, by definition does not involve truthful statements that may contribute to the political debate but false statements that have no upside potential whatsoever and much possibility of doing damage. If the statute deters individuals from making false statements, it reduces the prospect that someone will in fact be hurt by the speech. In so doing, it reduces the risk that no private right of action will provide an effective remedy after the fact. If there were some risk that the statute in question swept too broadly, so that it captured some true speech, then overbreadth issues might be a concern. But there are no special gimmicks at work in this case, and this risk is minimal.

      The key error to avoid in these cases is to evaluate speech by type, so that high- and low-value speech are put into different categories, whereby low value speech includes fighting words, obscenity, (perhaps) commercial advertisements and the like. That category approach means that defamation can now be regarded as high-value speech, even when it is false, so long as it deals with matters of public interest and concern.

      One of the serious dangers of New York Times v. Sullivan, is that its actual malice rule creates an unwarranted immunity for false statements under this logic. Yet what that decision, and the actual malice rule that it embodies miss this point. The threat of defamation for which no remedy is available could easily deter able people from entering into public life, which could therefore diminish the quality of public debate. Start with the view that presumptively holds false speech is not entitled to any protection, and the Stolen Valor Act is constitutional, indeed clearly so.

    • – 1 Promoted Comment

      There is a presumption that speech, even false speech, will be protected by the First Amendment. The First Amendment assumes citizens can challenge what they hear and engage in public debate. Categories of speech that fall outside of First Amendment protection must be well-defined and narrowly limited. Even though lying about military decorations may not be a valuable contribution to public discourse, they are inevitable in free debate and should be tolerated to avoid a chilling effect on the exchange of ideas. Gertz v. Robert Welch; New York Times v. Sullivan (“breathing space”).

      There are narrow categories of false speech that the government has carved out from protection, such as defamation and false commercial speech. But unlike defamation and false commercial speech (civil suits), the Stolen Valor Act makes it a criminal offense to lie about military decorations.

      Defamation is regulated because it causes an individualized harm. There is no individualized harm when people lie about receiving military decorations — the harm is to the government. The Stolen Valor Act protects a symbolic government interest: the honor associated with receiving United States military awards. In Texas v. Johnston, the Supreme Court held that symbolic interests (in that case, the government interest in maintaining the American flag as a symbol of national unity) are not sufficient to justify a restriction of First Amendment freedoms.

      False commercial speech is regulated civilly because consumers are not in a position to discriminate between false and true commercial speech. Commercial speech is considered particularly resilient to regulation, and thus there is less of a concern for chilling speech. Neither concern is raised by the Stolen Valor Act. Instead of regulating false claims to military honors, the government should engage in counter speech and make it as easy as possible for people to verify whether or not someone has received a medal.

      The government could simply publish the names of true award recipients. When a defamation plaintiff is a public figure and/or the speaker is discussing a matter of public concern, courts afford more First Amendment protection to the speaker than if the defamation concerned a private matter. This is in large part because public figures are better able to engage in effective counter speech. The government is similarly well-suited to engage in counter speech about who has received military decorations. The United States has already created websites with a public database of Congressional Medal of Honor recipients and could set up similar websites for all of the military decorations covered by the Stolen Valor Act. The public is fit to discriminate between liars and true decorated veterans. Groups have already organized online to track down and publicize people who have stolen valor.

    • Garrett Epps – 2 Promoted Comments

      The notion that the First Amendment protects speech if and only if it passes a test of truth finds no support that I am aware of in the doctrine. Properly viewed, the caselaw suggests that all speech is presumptively protected unless 1) it falls into a well-established “historical exception” to “the freedom of speech” or 2) the government can demonstrate that the restriction passes the applicable test (“strict scrutiny” for most content-based restrictions, with other tests for such things as commercial speech, etc.). I’ve never seen any evidence of a “historical exception” for lies generally. Thus, because the SVA is content-based, it would have to pass strict scrutiny, and I frankly don’t see how it can. As Judge Kozinski notes in his hilarious opinion concurring in the denial of en banc review, lies are inextricably intertwined with daily life, and a principle that invites government to monitor ordinary exchanges for truth has no logical stopping point. The governmental interests asserted in this case are derisory. First, the government argues that it has the power to protect the reputation of these medals. Why would this interest be of a higher order than the invalid interest in protecting the flag asserted in the Flag Burning cases? In United States v. Strandlof, the government argued that if non-heroes can go around claiming to have received medals, troops in the field will become discouraged and refuse to risk their lives in combat. As Judge Blackburn responded in his opinion, “To suggest that the battlefield heroism of our servicemen and women is motivated in any way, let alone in a compelling way, by considerations of whether a medal may be awarded simply defies my comprehension.”

      In truth, the Act does not require that a liar’s lies do any harm. For that reason, it’s clear to me that the only doctrinal basis to consider this act constitutional is the belief that somehow the First Amendment can be rationed out to the rest of us by governmental Pecksniffs who can put our words to the test of truth. The result would seem to me at least to be a libertarian’s idea of dystopia, I think, in which the Truth Police patrol daily discourse ad libitum. Falsity was an element of the Sedition Act of 1798. Mercifully, it drops away from general First Amendment doctrine after that, except in isolated dicta like that in Gertz v. Robert Welch.

      One reason this case may never reach the Court is that Congress has the opportunity to get this statute right. Rep. Joseph Heck (R-NV) has introduced H.R. 1775, which amends the current Act to add a requirement that, to violate the Act, military misrepresentations must be made “with intent to obtain anything of value.” This brings us neatly into the area of fraud—which, contrary to an earlier statement in this thread, is not just a lawyer’s term for “lies” but means, to quote Black’s “knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” The House has been relatively torpid this year; the revision is languishing in the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. This change would seem to be an easy one to pass.

      • – 1 Promoted Comment

        HR 1775 attempts to fix the Stolen Valor Act by articulating an economic injury. However, in doing so, HR1775 attempts to fix what is perfectly fine about the Stolen Valor Act, while not addressing its infirmities.

        Let’s start with what a fraud action should include. Illinois ex rel. Madigan v. Telemarketing Associates, Inc. stated a ‘properly tailored’ anti-fraud measure should require an intentional and material false statement, designed to mislead the listener, which succeeds in doing so.

        Neither HR1775 nor the Stolen Valor Act require any reliance on the part of the listener. Both the Alvarez and Strandlof courts found this omission fatal

        However, Madigan does not require any for of economic or pecuniary injury, either. It only requires the listener be misled. This is especially true in the area of false personation – like when somebody pretends to be a law enforcement officer or a decorated military veteran. In the context of false personation, the Supreme Court noted that “a person may be defrauded although he parts with something of no measurable value at all.” United States v. Lepowitch, 318 U.S. 702, 704 (1943).

        HR 1775 fixed what wasn’t broken – requirement of a pecuniary injury – while ignoring what was – reliance upon the false statement.

        I make the case for a narrow amendment to the Stolen Valor Act in my forthcoming Comment, which may be accessed here:

  • Alan Chen – 1 Promoted Comment

    If the Court grants the cert. petition in United States v. Alvarez, it will once again address an emotionally-charged issue that pits free speech against the government interest in protecting the sensibilities of military veterans. In one sense, the issue here is more complicated than the one presented in last term’s funeral protest case, Snyder v. Phelps (2011), because in Snyder the expression, however reprehensible to some, was clearly political and ideological. Here, the individuals who typically have been charged with violating the Stolen Valor Act have falsely represented that they were awarded military honors and do not claim to have been expressing an opinion or idea.

    Nonetheless, there are important speech values at stake in this case. In an argument reminiscent of early twentieth-century legal formalism, the government argues in that false speech is categorically unprotected by the First Amendment and may therefore be banned or regulated without regard to the context or the relevant government interest. The premise of this claim is that false speech can never have value. But the Stolen Valor Act is drafted so broadly that it requires the government to prove only that the defendant made a false representation that he or she was the recipient of military honors. One can imagine the prosecution of a protestor falsely “representing” military decorations in the context of street theater or some other form of pure political expression. Moreover, the statute does not recognize exceptions for false representations taking place as part of an artistic or satirical performance, which would unquestionably have First Amendment value. Indeed, the law is so sweeping that it might also be invalidated on overbreadth grounds.

    Even if there are doubts about the value of the speech in this case, there must be equally serious doubts about the government’s interests, which are intangible and hardly compelling. Insofar as I can tell, the Court has never examined a criminal regulation that punishes pure speech activity that causes no direct harm to a third party. Unlike legitimate false speech regulation, such as defamation or perjury law, the Stolen Valor Act does not require that the speech cause injury to a third party. Unlike fraud statutes, it does not require that the speaker have obtained some material gain from the falsehood. Rather, the United States has defended the law on the ground that the value of the awards granted to all decorated military veterans is somehow diluted or diminished by others’ false speech. But that speech doesn’t actually take away the real awards that have been bestowed on those honorable veterans. The government’s interest is therefore a purely symbolic one. As recognized by Federal District Judge Robert Blackburn in United States v. Standlof, a federal case from Colorado declaring the Stolen Valor Act facially unconstitutional, the interests presented by the United States are strongly reminiscent of the type of protection of patriotic symbols rejected as insufficient in the Court’s flag burning case, Texas v. Johnson (1989).

    There is not currently a circuit split on the constitutionality of the Stolen Valor Act. Nonetheless, the Court might grant certiorari to continue a theme that seems to have animated the past couple of terms. On no fewer than three occasions during that period, the Court has agreed to decide a case in which the government claimed a new exception to the general rule that content-based restrictions on speech are subject to strict scrutiny. On all three occasions, the Court has emphatically rejected such claims. Brown v. Entertainment Merchants Association (2011) (regulation of violent video games); Snyder v. Phelps (2011) (bans on funeral protests); United States v. Stevens (2010) (prohibitions against the sale of depictions of animal cruelty). These cases suggest that the Court remains skeptical about government claims that new exceptions to the content discrimination rule are warranted.

    (In the interests of candor, I disclose that I was a consultant to Assistant Federal Public Defender John Carlson regarding his oral argument in the Stolen Valor Act case currently pending in the Tenth Circuit).

  • Timothy Zick – 1 Promoted Comment

    If the Court, as seems likely, decides to grant cert in Alvarez, it will find itself at the intersection of contemporary culture’s penchant for “truthiness” and its patriotic fervor (which has been fed by more than a decade of war). Alvarez, a candidate for public office, told some real whoppers about his military service — as well as his exploits in the areas of sport and romance. Congress criminalized false statements about military honors in order, it said, to protect the “reputation and meaning of” military medals, decorations, and awards. Alvarez was prosecuted and pled guilty to lying about his military honors.

    Doctrinally, the case turns on the proper First Amendment default rule to apply to knowing false statments of fact: Are these statements protected, except when they are not; or are such statements unprotected speech, except when protecting them facilitates robust public debate? That’s a close question, made all the closer by the Court’s cryptic and inconsistent statements regarding the value, if any, of false statements of fact. As well, the Court has not been clear as to whether its precedents treat as unprotected a general category of “false statements” or a narrower category of defamation. Recent precedents, including Stevens and EMA, suggest that the Court may be inclined toward the former interpretation.

    Although much of the debate centers on the scope of the Court’s defamation precedents, when I think about this and similar cases Cohen v. California and Texas v. Johnson are the precedents that come directly to mind. Like profanity, lying debases culture. But how are we to distinguish one lie from another? Moreover, as the Court observed in Cohen, the government is not empowered to punish statements in order to maintain some suitable level of discourse. In order to crimialize lying, the government must establish that some significant harm flows from the expression at issue. According to Congress, that harm is the reputational injury to symbols of military service and valor. But the Court has held that government cannot preserve national symbols (including the flag and military uniforms) by criminalizing speech that dishonors or disrespect them. As with the flag and the uniform, the inspirational message and significance of the Medal of Honor are not imperiled by Alvarez’s disrespectful expression.

    The Stolen Valor Act may survive constitutional review. But it is obviously not possible to scrub lies and knowing puffery bordering on false statements from public discourse — inlcuding political campaigns. It is neither wise nor necessary to try to do so. People in Alvarez’s community were onto him before the FBI intervened, and the local press ridiculed him. In communities large and small across the country, bloggers and tweeters are empowered to scrutinize and expose public figures and false statements. We ought to place our faith in counter-speech and the press (including the “citizen press”) to police and expose lies about educational backgrounds, physical exploits and characteristics, and valor — whether on the field of battle or sport.

  • Christina Wells – 1 Promoted Comment

    If the Supreme Court grants certiorari in Alvarez, the case is likely to center on whether the Stolen Valor Act is sufficiently analogous to “low value” speech – i.e., expression that receives less protection than speech contributing to public debate. The arguments in favor of the Stolen Valor Act tend to analogize to the Court’s treatment of libel. This makes sense on one level since libel is one of the Court’s existing categories of low value speech. Just two terms ago in United States v. Stevens (2010), the Court made clear it was reluctant to expand its existing categories of low value speech. Smart lawyers will analogize to a category the Court already recognizes. Furthermore, a libel claim revolves around a false statement of fact, which the Court acknowledges has no constitutional value. Gertz v. Robert Welch, Inc. (1974). The Stolen Valor Act punishes a false statement of fact as well – specifically, falsely claiming to have received military honors. If any speech has little or no value, it is false statements about one’s own credentials, especially given that they are rarely accidental. In fact, such statements are practically akin to fraud, another of the Court’s categories of low value speech. False statements of fact about one’s military honors, then, appear to have two strikes against them under the Court’s jurisprudence

    On further reflection, however, the analogy to the Court’s low value speech categories falls apart. Neither libel nor fraud punishes only false statements of fact. Rather both require tangible, external indicia of harm resulting from the lie – either harm to reputation or damages as a result of reliance on the misrepresentation. This requirement of external harm is enormously important. It separates speech that falls into the Court’s carefully crafted low value speech categories from merely offensive speech that government punishes simply because it disapproves of the message. Decades of jurisprudence reflects the Court’s continuing struggle to police this line and ensure that government officials do not punish offensive speech under the guise of regulating low value expression.

    The harm sought to be avoided by the Stolen Valor Act reflects why the analogy to libel and fraud fails. According to the United States, the harm is largely reputational. Lies about receiving military honors “misappropriate the prestige and honor associated with the medal” and “damage the reputation and meaning of such decorations.” Petition for Certiorari in United States v. Alvarez (2011). These false statements of fact, however, don’t damage individual reputations. They damage objects (medals) or the reputation of government itself. This kind of reputational damage is far different from actual reputational harm to a living person. The Court has clearly stated that government attempts to protect sacred items from repugnant use in order to preserve their revered status are unwarranted attempts to establish government orthodoxy. Texas v. Johnson (1989); Bd. Of Educ. v. Barnette (1943). For the same reason, it rejects the notion of libel against the government. New York Times v. Sullivan (1964).

    The United States surely is within its rights to protect against actual fraudulent use of its medals to obtain valuable goods and services. Such actions would, in fact, be punishable fraud. The Stolen Valor Act does not punish those actions. It simply punishes lying. Although there is reason to question the value of such lies, punishment of them raises even greater concerns under the First Amendment.

  • Lyrissa Lidsky – 1 Promoted Comment

    Why NOT criminalize lies? The starting point for analysis is not whether the speech criminalized under the Stolen Valor is valueless, but whether the government has adequate justification for criminalizing speech that causes only emotional harm, especially when less restrictive alternatives are readily available. First Amendment jurisprudence has long held that the government must remain neutral in the marketplace of ideas, allowing citizens to engage in the “free trade in ideas” to discover where the Truth lies. Government regulation of discourse should be a last, rather than first, resort. Although speakers have relatively small autonomy interests in propagating falsehoods, our constitutional faith in democratic self-governance and collective self-determination suggests that citizens, rather than the government, should ordinarily be the arbiters of truth and falsity in public discourse. As the Supreme Court stated in Dennis v. United States, “the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, [and] free debate of ideas will result in the wisest governmental policies.” From this perspective, even a speaker’s false statement about his military honors has value because it gives his fellow citizens the opportunity (which they are likely to seize) for vigorous rebuttal and correction, replacing his “evil counsels” with good ones. This outcome, of course, depends on an engaged citizenry willing to charge into the fray and battle the lies spread by those claiming false military honors, which does not seem so far-fetched in this context, especially if the government is willing to provide an easy system for citizens to verify who receives military honors. Even if our constitutional faith that engaged citizens will combat falsehoods is misplaced, distrust of government may be a strong enough basis to declare unconstitutional any government attempt to punish relatively harmless falsehoods. Past governmental attempts to prescribe orthodoxy in public debate have resulted in enshrinement of error (think Galileo), suppression of political opponents (think the Alien and Sedition Act of 1798) or radical dissidents (think the Espionage Act of 1917); these experiences support the wisdom of maintaining a prophylactic prohibition in First Amendment jurisprudence against government attempts to police relatively harmless lies.

  • Tun-Jen Chiang – 1 Promoted Comment

    One thing that does not seem to have arisen in this discussion is the impact on trademark law. Congress (and many states) has enacted trademark law to prohibit the dilution of famous trademarks: I cannot label my company as “Harvard Pizza” even if I do no other damage to the trademark holder except the dilution itself. It seems to me extremely incongruous to say that the First Amendment protects the right of someone to falsely label themselves as a “Medal of Honor recipient” but would not protect my ability to sell pizza under the name “Harvard Pizza.”

    If the Ninth Circuit is correct, then it seems to me that a great chunk of federal and state trademark law is in trouble — and that makes me think that the Ninth Circuit cannot be correct.

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