Wednesday’s oral argument on the constitutionality of the Stolen Valor Act generated a flurry of anticipatory and postmortem coverage, as well as divided commentary. The brief of the United States is here, the respondent’s brief is here, a transcript of the oral argument is here, and audio is here.
While United States v. Alvarez is related only tangentially to national security law, it may nonetheless be of interest to Lawfare readers. The case tests the constitutionality of the 2006 law making it a crime to claim falsely to have earned military awards and permitting enhanced penalties for false claims about certain high honors. Xavier Alvarez, a self-described “psycho from the mental ward with Rambo stories” and few friends even among supporters of his legal claim, lied about earning the Medal of Honor during a meeting of a California public water district board in July 2007. Alvarez was among the first to be charged under the Act, though other prosecutions soon followed.
Alvarez comes to the Court on appeal from the Ninth Circuit, which reversed the district court, struck down the Act, and denied en banc rehearing in a fractured panel. The false claims criminalized by the Act, Judge Milan Smith wrote in the court’s opinion, were “not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First Amendment’s protective sweep.” “[H]istorical and traditional categories of unprotected false factual speech,” he stated, “have thus far included only certain subsets of false factual statements,” including defamation and fraud. The speech prohibited by the Act fit neither category, the decision concluded, for the Act did not require the proof of materiality, intent to mislead, or detrimental reliance necessary for fraud, nor the “actual malice” needed for a statement to qualify as defamation. Although “[p]reserving the value of military decorations is unquestionably an appropriate and worthy governmental objective,” Judge Smith noted, the First Amendment bars use of “a pure speech regulation like the one contained in the Act” to pursue this goal.
The opinion invalidating the Act drew a vigorous dissent from Judge Jay Bybee, who characterized the majority’s opinion as “provocative, to say the least.” “[T]he general rule,” Judge Bybee wrote, “is that false statements of fact are unprotected, and [the Court] has carved out certain limited exceptions to this principle in certain contexts.” “The majority flips this framework around,” said Judge Bybee, misreading the Court’s precedents. The Act, he concluded, was constitutional both facially and as applied to Alvarez.
At Wednesday’s oral argument, the Justices pressed both advocates to identify the limits of the government’s ability to criminalize lies. SCOTUSblog’s argument recap described the hour as “an almost uninterrupted flow of hypotheticals” covering topics that included,
trying to impress a dating partner, trying to win cheers from a crowd or being treated to a parade on Main Street, trying to persuade voters at a political event, trying to sell a product with puffery, trying to deflect a spouse’s suspicion about an extramarital affair, and, more seriously, trying to deter Nazi stormtroopers from finding out that Jews were being hidden in the basement.
Observers note at least two possible ways to uphold the Stolen Valor Act. Justice Anthony Kennedy and Justice Stephen Breyer appeared to support arguments which avoid the First Amendment and frame the Act as means of safeguarding the military’s ability to show appreciation for service, thus “protecting the rough equivalent of a government trademark covering military honors.” The United States mentions this argument in its brief, and the theory is also explored in an amicus brief filed in support of the government by the Veterans of Foreign Wars of the United States and other service associations. “At its core,” the amici argue,
this case is about theft, not lying in general. It is undisputed that the First Amendment does not protect people who falsely claim to have received military awards in order to fraudulently receive tangible or pecuniary benefits . . . . This Court likewise should conclude that the First Amendment does not protect those who wrongly appropriate for themselves the intangible, nonpecuniary advantages and acclaim that flow from the goodwill associated with military awards they have not earned.
The Court’s alternative, grounded in the doctrine of constitutional avoidance, seems to be essentially to rewrite the Stolen Valor Act. Although a competing tradition stresses that “judges should not actually rewrite a law to make it constitutionally acceptable . . . sometimes the line between the two traditions is quite blurred.” Judge Smith’s opinion for the Ninth Circuit suggested a great deal would have to be read into the Act to save it, while Solicitor General Donald Verrilli emphasized during oral argument that the Act covers only “a carefully limited and narrowly drawn category of calculated factual falsehoods.” The extent to which the sharply divided Court agreed with either view is not clear.
If the Court does strike down the Act, Congress may respond. Last May, Congressman Joe Heck (R-NV) introduced the Stolen Valor Act of 2011. The amended Act would expand the statements subject to penalty by making it a crime knowingly to misrepresent past service in a combat zone or special operations force, as well as to claim falsely to have received military honors. An offense under the new Act would also require, however, that the misrepresentation was made “with intent to obtain anything of value.”
While Xavier Alvarez naturally could not be prosecuted under the amended Act, the result in his case may well have been different had the earlier version read similarly. As the Ninth Circuit mentioned in a footnote in its opinion,
we know very little about what other evidence the government might have been able to introduce in order to prove Alvarez’s particular statements were unprotected . . . . [but] some evidence in the record suggests he might have made the false claim at issue, or similar misrepresentations, in order to fraudulently obtain certain benefits.
The Court is expected to decide Alvarez by the end of June.