On June 28—the same day that the blockbuster Affordable Care Act (ACA) opinion was handed down—the Court also handed down another opinion, involving the Stolen Valor Act (SVA). Predictably, the SVA opinion, United States v. Alvarez, attracted little attention in light of all the attention that the ACA opinion garnered. But I will argue in this column that Alvarez was also important in its own way.
The SVA’s Prohibition, and the Majority’s Holding
The SVA makes it a crime to falsely claim that you have received a military decoration or medal. Doing so carries enhanced penalties if you falsely claim to receive the Congressional Medal of Honor. The Court held, 6-3, that the SVA violated the First Amendment. In dissent were Justices Alito, Scalia, and Thomas.
The Justices in the majority noted that content-based restrictions on speech—that is, restrictions based on the meaning of what is said or written—are rarely upheld. The instances where such speech is upheld include, the Court noted, incitement to violence; obscenity; defamation; speech that is integral to the commission of a crime; “fighting words,” which are inclined to trigger violence; child pornography; fraud; true threats; and speech presenting a grave and imminent threat that the government has the power to prevent.
In each type of First-Amendment-permitted, content-based restriction on speech, the majority Justices saw a legally cognizable harm, not simply false speech alone. That, in their eyes, made each of these kinds of speech different from the kind of speech that is penalized under the SVA, which the majority saw as pure false speech.
The majority also noted that “historically and traditionally” the Court is loath to expand on the categories of content-based speech that the government can restrict.
Moreover, the majority Justices, while acknowledging that some of the Court’s precedents deem false speech valueless, limited those precedents to their contexts—each of which, the Justices said, included not just a false statement, but also some legally cognizable harm, such as suffering an invasion of privacy or having to pay court costs.
The majority also noted that even in the defamation context, where speech can trigger monetary penalties, the intent standard can be high—requiring a knowing falsehood or reckless disregard for the truth—reflecting the special importance of protecting First Amendment rights.
The majority honored Medal of Honor recipients and other award-holders in its opinion, and acknowledged that those who falsely claim to be medal holders, with their lies, “may offend the true holders of the Medal.” Yet, the majority also noted that counterspeech—here, speech making clear who does, and does not, have the Medal—can be at least somewhat effective in setting the record straight.
So, the Court suggested, could a comprehensive government-created database of Medal of Honor winners; there are, the majority noted, private databases online that serve exactly this purpose. But it turns out that such a comprehensive database might be impossible to create for other medals.
Justice Breyer’s Concurrence
Justice Breyer, joined by Justice Kagan, voted with the majority to void the conviction at issue, but he did so on somewhat different grounds. (Full disclosure: I was a clerk for then-Chief Judge Breyer when he served on the U.S. Court of Appeals for the First Circuit.)
Justice Breyer rejected the majority’s analysis insofar as it went through the categories of content-based restrictions on speech that are permissible, and found that the SVA’s restriction did not fit into any of the categories.
Instead, Justice Breyer used a different approach—looking to the First-Amendment harm that the SVA could cause, the importance of the SVA’s objectives, and whether there are less restrictive alternatives that could also achieve the same objectives. This approach, seeking out less restrictive alternatives, is a classic one that the Court has used in many other contexts.
Justice Breyer was more frank than the majority Justices had been, when it came to the prior Court precedents clearly suggesting that false speech is close to valueless, acknowledging that there are many such precedents. Interestingly, though, Breyer used the “close to” language in the “close to valueless” formulation, to then point out the possible value of even clearly false speech.
After all, Justice Breyer noted, false speech may—to give a few examples—serve the positive aims of preventing embarrassment, protecting privacy, shielding a person from prejudice, providing comfort to the sick, preserving a child’s innocence, and so on.
Justice Breyer also noted the Court’s prior recognition of the “chilling effect” that laws regarding speech can have, and noted, as well, that many prohibitions on false speech are narrower than the SVA is.
That narrowing occurs via requirements of additional showings—showings, Breyer notes, of specific harm to identifiable victims; of a context where harm is likely to occur; and/or that the lies themselves are especially likely to cause harm. Along these lines, Justice Breyer cited fraud statutes, perjury statutes, and more.
Justice Breyer’s analysis showed how very unusual the SVA is, by highlighting its lack of limits. Moreover, Justice Breyer underlined the point that the consequence here is prosecution—not, say, a civil damages award. Justice Breyer was thus especially concerned—rightly so, I think—about mere “bar stool braggadocio” landing someone in jail. In the end, Justice Breyer did not rule out a “more finely tailored statute” to the same effect, but voted to strike down the SVA itself.
The Dissent’s Argument
In dissent, Justices Alito, Scalia, and Thomas focused mainly on the Court precedents stating that false speech is valueless. In addition, they made the case that prosecution—not just, say, a civil penalty—is necessary to prevent false medal claims, in light of the proliferation of false claims, for which the dissenters cite striking evidence; and in light of the apparent impracticability of creating a comprehensive online medal database. Moreover, the dissenters suggest that medal lies alone, without more, still do sufficient damage that criminal penalties are merited when such lies are told.
Ultimately, I think this that is an ideal case to illustrate the difference between liberals and conservatives—both on the Court and otherwise.
Virtually all liberals, I think—and I count myself among them—will feel enough pity for the guy who exercises “bar room braggadocio” to make a false medal claim to let him off the hook when it comes to criminal penalties, although we might seriously consider harsh civil penalties as an alternative, because we, too, greatly value the medals’ meaning.
In turn, virtually all conservatives, I think, will feel repelled by that very same person’s bar room braggadocio, and will want to see him serve at least some jail time for his lie.
Ultimately, I think that virtually any American will want to see the medal liar punished, in light of what medal winners have risked—their very lives—and endured, in battle. The question here, though—and perhaps also the political litmus test, as well—is whether the penalties ought to be civil or criminal.