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