Members of the US Supreme Court grappled on Wednesday with the difficult task of deciding whether the First Amendment protects a free speech right to claim to be a decorated war hero – even if you aren’t one.
The high court is being asked to determine the constitutionality of the Stolen Valor Act of 2005, which makes it a federal crime to falsely claim to have received a military medal.
During an hour-long argument, the justices weighed competing claims upholding the necessity of the statute against the dangers to free speech of a government willing to punish its citizens for something that is merely said.
Several justices seemed troubled by the prospect of opening a door to future laws that might ban false speech concerning one’s receipt of a high school diploma or off-the-cuff comments made by a candidate in an election campaign.
Others appeared ready to uphold the statute as a reasonable regulation of a particularly egregious kind of lie undeserving of constitutional protection.
“I believe there is no First Amendment value in falsehood,” Justice Antonin Scalia declared, flatly.
When Jonathan Libby, a deputy public defender from Los Angeles, struggled to answer repeated questions about the constitutional value of a lie, Justice Stephen Breyer broke into the discussion with an example of a situation justifying a deliberate falsehood that would be both honorable and constitutionally-protected: “Are you hiding Jews in the cellar?”
Chief Justice Roberts brushed the comment aside. The statute regulates a “purely false statement about one’s self.” he said. “What is the first Amendment value in [allowing such lies]?”
“Our Founders believed that Congress as a general principle doesn’t get to tell us what we as individuals can and cannot say,” Mr. Libby replied. In other areas where the high court has long allowed regulation of speech, it involved speech that caused specific harm to others such as libel, obscenity, or incitement, Libby said.
The case, US v. Alvarez (11-210), stems from comments made by Xavier Alvarez, the elected member of a local water district board in southern California. In July 2007, Mr. Alvarez introduced himself during a meeting as a retired US Marine who had served for 25 years and won the Medal of Honor in 1987.
None of it was true.
Alvarez was charged with violating the Stolen Valor Act. He faced up to six months in prison.
After an FBI investigation, Alvarez entered a conditional guilty plea. His lawyer, Mr. Libby, continued to fight the charge, arguing that the underlying statute, the Stolen Valor Act, violated Alvarez’s free speech rights.
Prosecutors defended the law as a narrowly focused regulation of a discrete category of speech that served the important government interest of preventing the dilution of the value of military medals.
A federal judge upheld the conviction, but a panel of the Ninth US Circuit Court of Appeals reversed. The appeals court said the Stolen Valor Act could not withstand the scrutiny required of a federal law that sought to censor speech based upon its content.
US Solicitor General Donald Verrilli urged the justices to overturn the Ninth Circuit. “This statute is as narrow as you can get it,” he said.
Justice Sonia Sotomayor questioned whether it was, in fact, as narrowly focused as possible. “I thought the core of the First Amendment was to protect even against offensive speech,” she told the solicitor general.
She said the statute appeared to be aimed at addressing the offense felt when someone falsely claims to be a medal recipient. But Sotomayor said more than just an emotional reaction – more than mere offense – was necessary to justify a restriction on free speech.
“So outside the emotional reaction, where’s the harm,” Sotomayor asked.
It is about honor, Verrilli answered. It is about “the essence of what we want in our service men and women – courage, sacrifice, love of country, willingness to put your life on the line for your comrades,” he said.
“What the medals do is say to our military, this is what we care about,” Verrilli said.
“For the government to say this is a really big deal and then to stand idly by when one charlatan after another makes a false claim to have won a medal does debase the value of the medal in the eyes of the soldiers,” the solicitor general said. “We think the government has the authority and the constitutional space to try to deter this kind of speech.”
Justice Elena Kagan asked how the Stolen Valor Act differed from many state statutes that outlaw demonstrably false statements by a political candidate during an election campaign.
Verrilli said such attempts to regulate speech during a political campaign carry a more significant risk of deterring or chilling other speech.
“Suppose it says demonstrable falsehoods about yourself,” she asked.
“Those statutes are going to pose a particular risk of chill, that this statute does not pose,” Verrilli said.
Kagan was not convinced. “They are the same kind of statement,” she said. “One knows the same sorts of things about oneself.”
The solicitor general said the Valor Act did not present a similarly broad risk of a chilling effect on other speech. “What we’re talking about is a very specific pinpoint thing: Have you been awarded a military honor or not?”
He said the court could apply a special level of “breathing space” in its First Amendment analysis to avoid any spill over chilling effect.
Justice Anthony Kennedy, one of the high court’s strongest free speech defenders, seemed perplexed by the case.
“The whole breathing space thing almost has it backwards,” he told Verrilli. “It presumes that the government is going to have a ministry of truth and then allow breathing space around it, and I just don’t think that’s our tradition.”
He added: “On the other hand, I have to acknowledge that this does diminish the medal in many respects.”
A decision is expected by late June.