WASHINGTON – The U.S. Supreme Court yesterday overturned a federal law that makes it a crime to falsely claim a military honor.
United States v. Alvarez, 11–210, raised questions about the extent to which the First Amendment right to free speech protects false statements. The high court affirmed the conclusion the U.S. Court of Appeals for the Ninth Circuit reached in 2010—that the law, the Stolen Valor Act of 2005, is unconstitutional.
Justice Anthony Kennedy wrote the high court’s decision, which was joined by Chief Justice John Roberts Jr. and Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Stephen Breyer wrote a concurring opinion joined by Justice Elena Kagan, while Justices Samuel Alito, Antonin Scalia and Clarence Thomas voted in support of the law.
Xavier Alvarez was prosecuted after claiming in a public speech that he had won the Congressional Medal of Honor. In fact, he never served in the military.
“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,” Kennedy wrote. “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.”
Civil liberties champions and press advocates heralded the decision, but representatives of service members denounced it as an erosion of the effort to preserve the integrity of the military’s system of medals.
Aaron Streett, a Baker Botts partner in Houston who represented the American Legion in a friend-of-the-court brief, said the decision “struck the constitutional balance in favor of liars” against millions of military service members and veterans.
“Lies about having won military medals do not deserve any constitutional protection,” said Streett, who practices in appellate and Supreme Court litigation. “Congress acted reasonably to punish those who traffic in such falsehoods, in order to protect the integrity of the military-honors system that has existed for centuries.”
The man at the center of the dispute, Xavier Alvarez, lied about many things, including his boast that he played hockey for the Detroit Red Wings.
“Lying was his habit,” Kennedy wrote in the opening line of the decision.
Alvarez’s big lie: claiming he’d received the Congressional Medal of Honor. At a public meeting as a board member of the Three Valley Water District Board in California in 2007, Alvarez said he won the award in 1987 for bravery during the Iran hostage crisis. “I got wounded many times by the same guy,” he said.
Kennedy noted that none of this was true. Alvarez was convicted of a misdemeanor offense, but a federal appeals court overturned the conviction.
The government did not show—nor could it—why “counterspeech” would not be sufficient to overcome Alvarez’s lies, Kennedy said. Alvarez, for instance, was ridiculed online after the lie became public.
“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,” Kennedy wrote. “That governmental power has no clear limiting principle.”
Breyer, in his concurrence, said the Stolen Valor Act lacks any limiting features. The breadth of the law, Breyer said, “creates a significant risk of First Amendment harm.” The law as written, the justice said, “applies in family, social, or other private contexts, where lies will often cause little harm.”
A “more finely tailored statute,” Breyer said, could reduce the potential First Amendment harm while allowing the law to achieve its objective.
Writing in dissent, Alito called the Stolen Valor Act a “valuable law” and criticized Kennedy’s opinion for going against a line of cases that hold that the right to free speech does not protect false factual statements that “inflict real harm” and serve no genuine interest.
“The lies covered by the Stolen Valor Act have no intrinsic value and thus merit no First Amendment protection unless their prohibition would chill other expression that falls within the Amendment’s scope,” Alito said.
Alvarez’s lawyer in the Supreme Court, Jonathan Libby, a deputy federal public defender in Los Angeles, said the high court “strongly reaffirmed an individual’s right to free speech. Six justices made very clear that Congress doesn’t get to decide as a general principle what we get to say.”
Solicitor General Donald Verrilli of the U.S. Department of Justice argued for the government in February at the high court. The DOJ did not immediately comment on the ruling.
“Military honors play a vital role in inculcating and sustaining the core values of our nation’s armed forces,” Verrilli told the justices. “The military applies exacting criteria in awarding honors, and Congress has a long tradition of legislating to protect the integrity of the honors system.”
Lisa Monet Wayne, president of the National Association of Criminal Defense Lawyers, which filed an amicus curiae brief in support of Alvarez, suggested the court’s ruling should give pause to any rush to use criminal laws to counter “every perceived transgression” in society.
“Today’s decision in Alvarez rejecting this law is not only a victory for the First Amendment, but it is an important step in the efforts of many across the political spectrum to roll back what has become a crisis of over-criminalization in our nation,” Wayne said.
@|Mike Scarcella, a reporter at The National Law Journal, an affiliate, can be contacted at email@example.com.