The Stolen Valor Act Held Unconstitutional, Supreme Court Says Not Valid Under First Amendment

On June 28, 2012, the United States Supreme Court affirmed the Ninth Circuit Court’s decision in United States v. Alvarez and held the Stolen Valor Act (18 U.S.C. § 704) invalid under the First Amendment.  President George W. Bush signed the Stolen Valor Act of 2005 into law on December 20, 2006, which broadens previous provisions addressing the unauthorized wear, manufacture, or sale of any military decorations and medals.  The Act makes it a misdemeanor to falsely represent oneself as having received any U.S. military decoration or medal.  If convicted, defendants may be imprisoned for up to six months, unless the decoration at issue is the Medal of Honor, in which case imprisonment could be up to one year.   The law was passed to prevent imposters from “stealing the valor” of soldiers returning from engagements in Iraq and Afghanistan.  In 2009 alone, the Federal Bureau of Investigation investigated 200 alleged violations of the Act.

In United States v. Alvarez, the Government brought charges against defendant, Xavier Alvarez, when he falsely claimed being awarded the Congressional Medal of Honor after he was elected to public office.  Alvarez not only lied about obtaining the Congressional Medal of Honor but also claimed he was a member of the United States Marines for twenty-five years.  As part of a plea bargain, Alvarez conditionally pled guilty to the charge while reserving the right to challenge the law on Constitutional grounds.  The Ninth Circuit vacated his conviction, finding the statute invalid under the First Amendment.  The Ninth Circuit reasoned that false speech is protected, but “certain subsets of false factual statements” are not and the speech spoken by Alvarez did not fall into any of those categories like defamation.

The Supreme Court heard oral arguments on February 22, 2012.  Donald Verrilli, Jr., Solicitor General of the United States represented the United States.  Jonathan D. Libby, Deputy Federal Public Defender, appeared on behalf of Alvarez.  Verrilli argued that military honors touch the core values of the armed forces.  Verrilli explained to the Court the Act is only chargeable if “reasonably understood by the audience as a statement of fact or as an exercise in political theatre.”  Verrilli also argued that the violation as defined by the Act is similar to defamation.  Libby argued the First Amendment is intended to protect personal autonomy.  Libby played on the Court’s discontent on the lack of harm caused in Alvarez’s lies by stating “so long as it doesn’t cause imminent harm to another person or imminent harm to a government function.”

Six Justices ruled the statute invalid under the First Amendment, at least “as presently drafted.”  Justice Kennedy’s plurality joined by Justices Roberts, Ginsburg and Sotomayor, found that it failed the “strict scrutiny” required for “content-based” restrictions on speech.  Strict scrutiny means that it had to be necessary to serve a compelling governmental interest and narrowly tailored to serve that interest.  According to Justice Kennedy, the statute failed that test because there was no proof that the public thought less of winners of military medals because of existence of people who lied about having received them.  Justice Kennedy, said there are only a “few historic and traditional” exceptions to the normal rule that the First Amendment prohibits content-based restrictions on speech. There is no “categorical rule,” “no general exception … for false statements.”

Justice Breyer’s concurrence joined by Justice Kagan, applied a more forgiving “intermediate scrutiny” but also agreed that the statute was unconstitutionally overbroad for not at least requiring some proof of a “specific harm” and possibly some “less restrictive means” for achieving what the Court unanimously agrees is a strong governmental interest in protecting the intrinsic value of Congressionally authorized military decorations.  Justice Alito, joined by Justice Scalia and Justice Thomas, dissented.  They argued that false statements about military medals merit no First Amendment protections whatsoever, while recognizing that false statements may be protected when laws restricting them might chill otherwise protected speech.  The dissenters explained the Stolen Valor Act did not implicate that concern because lying about alleged receipt of military honors does not relate to any protected expression, and the lies cause harm to those families and individuals who received those medals legitimately. 

While it is very clear that there is a strong governmental interest in protecting the value of congressionally authorized military decorations, it would seem that there should be some type of harm articulated in order to have such a law.  And if we are going to criminalize a person lying about things they have been awarded or accomplished, what then about the people who lie on a daily basis about jobs they have had on their resume, scholarships they were awarded in school, or degrees they have earned in college? 

Despite the Court’s ruling, Alvarez’s false statements caught up to him.  Following the investigation into Alvarez’s background, investigators for the Los Angeles County District Attorney discovered Alvarez had falsely claimed his ex-wife was married to him, and thus fraudulently received health insurance benefits.  Alvarez was convicted of misappropriation of public funds, grand theft, and insurance fraud and sentenced to five years in state prison.  His conviction made him ineligible to hold public office.  There is much to be said about “what comes around goes around.” 

Diana Cobo

Junior Blogger Editor, Criminal Law Brief