Supreme Court Strikes Down The Stolen Valor Act

In an important win for free speech, the Supreme Court affirmed the Ninth Circuit in striking down the Stolen Valor Act — legislation that I have previously criticized (here and here) as a threat to the first amendment. The nice thing is that it was not particularly close and Chief Justice Roberts again broke with his more conservative colleagues. In United States v. Alvarez, No. 11-210, the Court held 6-3 that it is unconstitutional to criminalize lies — in that case lying about receiving military decorations or medals. Ironically, Alvarez now has something to brag about but no one will believe him.

Justice Kennedy was joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor in holding that the Act violated protected speech. They were joined by by Justice Breyer and Justice Kagan concurring but arguing for an intermediate scrutiny standard. There are parts of their concurrences that are a bit unnerving in leaving open the door for less burdensome means to achieve these ends.

That aside, this has been a long debate for some of us with reasoned arguments on both sides as with my debate with Eugene Volokh. In my view, free speech just dodged a lethal bullet.


Here is the opinion: 11-210d4e9

41 thoughts on “Supreme Court Strikes Down The Stolen Valor Act

  1. The right decision although I do feel that the people who pretend that they are heroes need to be ostracized and criticized. The “real” heroes don’t go around announcing their exploits. They are the ones who have our back at all times.

  2. I think “bar talk” is a bit different from lying in official campaign literature. Surely, you can see this…

  3. I hope there will still be the ability to prosecute for fraudulent claims of MOH award if a lie was used to obtain a benefit that is only aforded to those recipients. A small example would be some states award MOH recipients with free cosumized vehicle licenses and there are some military benefits granted to awardees.

  4. rafflaw 1, June 28, 2012 at 11:33 am

    The right decision although I do feel that the people who pretend that they are heroes need to be ostracized and criticized. The “real” heroes don’t go around announcing their exploits. They are the ones who have our back at all times.
    The court opinion did just that:

    Lying was his habit. Xavier Alvarez, the respondent here, 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.

    Alvarez will never live down the negative publicity, but all the medal recipients will continue in their integrity, and so will the 1st Amendment.

    It is better this way, as you said.

  5. It’s “unconstitutional to criminalize lies”?? So what’s a lie anymore? AG Holder can claim that “oh I retract all those statements from months ago” under oath. Or the Dems and Obama who asserted that the Affordable Care Act was not a tax, changed their minds in arguments to SCOTUS and said “oh sure the indiv mandate IS a tax” and SCOTUS says “yeah, sure go ahead and tax the sob’s”. What did that Congressman say during a joint session of Congress? “YOU LIE”.

  6. I am unfamiliar with the facts of this case, but I assume there are many times that lying is criminal. And as I type this, I recall that lying to the police is sometimes criminal. (Martha Stewart rings a bell.)

  7. mahtso,
    Lying to police authorities and perjury are lies, but are not in the same ball park as BSing about your military record or any other imaginary exploit. Geeba, if it was illegal to lie, George W. Bush could be held liable for lies about WMD’s in Iraq.

  8. raff
    Perjury I understand (at least I think I do under the theory that one has taken an oath or affirmation as a prerequisite to perjury); lying to police I don’t (especially considering that the police are free to lie to us).

  9. The real principal here is that people who yammer on about their “war experiences” are probably the folks who spent their time as “rear echelon motherfunckers”. people who’ve seen real combat rarely talk about it.

  10. The problem this law was designed to solve is that many of the liars use their claimed heroism as the foundation for a con. If I write a book & claim MoH the book will sell better. I do not think you could bring charges of fraud as it would be impossible to prove how much the lie sold the book.

    But what really needs to happen is for these people to be publicly, loudly, exposed and ridiculed.

    One of the worst beatings I ever saw a guy get was one night drinking with a couple of Marine buddies just back from Viet Nam. The guy at the next table was going on about killing. It got to my one friend so the two of them went over & talked to him for about 2 minutes – long enough to see he was a liar. Those guys had a lot of pent up hostility left over & they let some of it out, it was not pretty.

  11. @Rich: people who’ve seen real combat rarely talk about it.

    That just isn’t true; especially among politicians. Kerry, McCain, Kennedy, and many other politicians all saw real combat and have been happy to trade on their war experiences for political advantage. In fact, the reason people lie about it is because it WORKS, it gains respect, deference and good will. The way they know it works is because they have seen it work when the stories are true.

    Politicians that have seen real combat always find a way to make sure people know about it. Even when John McCain says, “I think I know a thing or two about torture” is being explicit in calling attention to his war experience.

  12. Rich, Paul Fussell (who just died this month & is a must read for people who want to hear a combat officers thoughts on actually being in combat) stated that there were approximately 2 million US soldiers in Europe for WWII – and around 300,000 of those actually served in combat. Thats not that unusual, in fact the numbers today are probably even farther apart.

    Thats not necessarily a knock of guys lucky enough to not have to have that experience as long as they don’t pretend they did. But it should caution us all for when we heard people bragging on their experiences.

  13. Frankly-

    Also, some veterans are a little careless about the use of “Vietnam Veteran” and “Vietnam Era Veteran”.

    The term “Vietnam Era Veteran” was created as part of a Federal law outlawing hiring discrimination against military veterans by employers in the late 60’s and early 70’s. The unemployment rate of Vietnam and non-Vietnam veterans was very high at that time. A large part of the problem, I’m sorry to say, was a result of anti-war liberal screenwriters and tv writers portraying American Soldiers and Marines as drugged-up psychopathic baby-killers who created havoc when they returned to the U.S. The “job creators”, who are as timid today as they were then, chose to hire “safer” job applicants. The law also gave bonus points to veterans applying for Civil Service jobs. I believe it’s still in effect today and enforced by the EEOC.

    Legally, I could say that I’m a Vietnam Era Veteran, but I never do because I never served in Vietnam and because it can be misleading. Only those who did serve in Vietnam deserve the honor of calling themselves “Vietnam Veteran”.

  14. @TonyC, @Frankly: The numbers Frankly quotes from Fussell are not at all surprising. Esp. before major outsourcing, there were many back-office type functions done by uniformed military. Sometimes they were marginally exposed to fire (e.g., suicide bombers in Saigon, people stationed in London during the blitz) but they really didn’t experience combat.

    Of course, pols have traded on their war records, even when their service was flimsy (LBJ went up in a plane once near a combat zone, Nixon played a lot of poker) but many war heroes underplayed very meritorious service like McGovern. OTOH, pols are not typical people in uniform. having grown up around WWII and Korea vets, as well as Vietnam vets and also having worked with the Army, my experience has been the more real the combat exposure, the less barroom bullshitting there is about.

  15. According to the 9th Circuit panel that held the statute unconstitutional (two judges held the law unconstitutional, Judge Jay Bybee, torture magician, dissented), lying is a thing everyone in the is prone to do.

    I got no kick against modern jazz, but this is symptomatic of a larger reality:

    Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).

    And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics — an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?

    (Dredd Philosophy Is Dread Truth, quoting 9th Circuit). The problem we face is a century of hard core lying called spin by the duped, propaganda by the informed.

  16. @Rich: You seem to miss the point. In the case in question, the lies were told for political advantage. What “typical people in uniform” do is immaterial, this was not a typical person, it was a person (Xavier Alvarez) trying to start a career in politics and lying in order to get elected.

    So we are talking about politicians, and your observation about the reticence of soldiers that have seen battle does not apply. Also, in this case Alvarez did not CLAIM to have seen battle, he only claimed to have been a Marine for 25 years. (He wasn’t). (He also wasn’t a high school hockey star, as he claimed).

    So my point is that politicians are not reticent about either their service or their battle experience. Both John Kerry and John McCain have real, live-fire battle experience, and they don’t mind bringing up that fact.

    As for others “not wanting to talk about it,” maybe so, but in MY experience, even if the details are not forthcoming, the FACT that somebody has been in battle is often revealed by them within a few meetings, albeit in passing. I spent a few years in the military myself, and that happened so frequently I considered it a rule. Around the time somebody realizes they are going to be seeing you or working with you repeatedly, and can speak with you informally, the important life details start leaking out.

  17. “I hope there will still be the ability to prosecute for fraudulent claims of MOH award if a lie was used to obtain a benefit that is only aforded to those recipients”


    Couldn’t that be prosecuted under Fraud statutes? It would seem to me that lying about anything to gain material benefits from someone would be seen as fraud. Now one could say that claiming heroism in order to get free drinks at a bar was fraudulent, but I don’t think that would be substantial enough.


  18. rafflaw 1, June 28, 2012 at 11:33 am

    The right decision although I do feel that the people who pretend that they are heroes need to be ostracized and criticized.
    This will happen if the DoD makes available a list of all recipients of medals.

  19. Oro Lee, thanks. it looks like they have the moh winners listed. I didn’t see a list of the other medal winners. If they are not there, I suspect the DoD will put them there.

  20. bettykath 1, June 28, 2012 at 7:32 pm

    rafflaw 1, June 28, 2012 at 11:33 am

    The right decision although I do feel that the people who pretend that they are heroes need to be ostracized and criticized.
    That would apply to a lot of soldiers.

    Better to find them before they become one of the 18 a day, 6,570 a year, who kill themselves and/or their fellow “heroes.”

    The enemy struggles for a decade to kill that many “heroes,” but “the enemy is weaker“, and can not kill as many as the “heroes” kill, even over a ten year period.

    Perception. Propaganda. Party.

  21. Human society is founded on mutual deceit; few friendships would endure if each knew what his friend said of him in his absence.

    Blaise Pascal

    If you want people to talk about you, leave the party early.

    Paraphrasing Machiavelli, I think; maybe Mae West

  22. The only thing disappointing about this decision is that it should have been 9-0. But had it been upheld, we would have witnessed a tsunami of similar bills sacramentalizing virtually every patriotic symbol as part of the ongoing effort to merge national loyalty with Christianity.

  23. Oro Lee,

    Mae West … now you must know how badly I want to go there and ask the infamous question but I will refrain … I will refrain

    (yep, I said it twice to give Gene a chuckle on word usage)

  24. Mike S.:

    At first glance Mike I would agree that in general it would be considered to be a fraudulent act, but I suspect with the prosecution of such it might require some extra measures be put into place due to the precident here.

    To me if an organization / service /business that supplies a benefit to the person proffering to be a MOH recipient can no longer just ask and that would be enough. I imagine to make it more clear there would have to be language that states “Have you been awarded a Medal of Honor by a uniformed service of the United States? Yes [ ] No [ ] Is the copy of your military form DD-214 you provided to our organiztion a true and accurate copy of the form on file with the US Government? Yes [ ] No [ ] I Swear under penalty of perjury under the laws of the state of *** and the United States the Information contained on this form is true and accurate.” -s-.

    In doing this the person can either be charged with Perjury or False Swearing if they lied about the MOH award status by virtue of the false statement on the copy of the DD 214 and the false statement as to the accuracy of the application. I think this might suffice wihtout running into issues with the free speech issue with the lie.

    *** On another note. Falsely claiming to be a MOH recipient is craven and to me is just above the child molester level in the strata of American Society. Admittedly when I read the SCOTUS ruling on this issue I understood and agreed to the legal interpretation of the issue but it made me very angry none the less. I suppose we have to live with it though.

    I guess it is due to having a great many members of my family who are veterans and I have been socialized into having a kindred liking for military personnel. My grandfather told me of having a distant relative on my mother’s side who is a MOH recipient from the Philippine Insurrection. (Otto Boehler). I guess when you hear these things as a child, you grow up to have some pretty intrenched values that are hard to change. When you hear all your life stories about the heroism and honor displayed by these men and a woman, I can’t but help but be angered by not being able to prosecute people who dishonor those who served by claiming to be one of them. I’m glad in a way I wasn’t involved in this case. I don’t think I could be objective.

  25. It is a disservice to the notion of heroism to water it down.

    Assuming that it is good to give medals for valor, which involve rare events, it cheapens that sentiment if everyone is considered a hero.

    The propaganda bounced around is tending toward the notion that every soldier is a hero.

    Valor is becoming the act of signing on the dotted line to complete the process of joining up.

    Who does that benefit?

    Not the heroes who receive the medals.

    It benefits the recruiters at the expense of the medal recipients.

  26. It will never be unconstitutional to lie about veteran status and war medals, but it will always be repulsive, even in “bar talk.” I expect to hear b.s. from men in bars, and I can drink and b.s. with the best of them, but the most disgusting lie a guy has ever used to try to impress me was that he served in Afghanistan. He could not name one town in Afghanistan, and he knew absolutely nothing about the war. I don’t care if the motive is to gain office, impress friends, or get a woman into bed – it’s disgusting behavior.

  27. Problem solved: liars can be exposed.

    The Pentagon plans to establish a searchable database of military valor awards and medals, hoping for a technological fix to the problem of people getting away with lying about earning military honors.

    Pentagon press secretary George Little said details have yet to be worked out, but the intention is to have a digital repository of records on a range of valor awards and medals going back as far in history as possible.

    The move is in response to a June 28 Supreme Court ruling that invalidated a law making it a crime to lie about receiving the Medal of Honor and other military decorations. An authoritative database would make it easier to check on award claims, and perhaps would deter some who would make false public claims.

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