Congress, Constitutional Law, Free Speech, Lawyering, Media, Military, Politics

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. 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”.

  2. 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.

  3. @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.

  4. 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.

  5. 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.

  6. 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).

  8. 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.

  10. 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.)

  11. 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”.

  12. 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.

  14. 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.

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

  19. 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.

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