In 2005 Democratic Congressman John Salazar pushed the Stolen Valor Act easily through a bipartisan Congress. Clay Calvert and Rebekah Rich, Low-Value Expression, Offensive Speech, and the Qualified First Amendment Right to Lie: From Crush Videos to Fabrications about Military Medals, 42 U. Tol. L. Rev. 1, 15 (2010-2011). The Act authorizes the federal government to fine or imprisonment, up to six months, individuals who make false representations that they have won military decorations and medals; the statute doubles the fine and potential incarceration for claims about the Congressional Medal of Honor. 18 U.S.C. § 704 (2006). Legislators obviously did not intend to violate anyone’s rights; rather they aimed at protecting the sacredness of military honor and respecting those men and women who have earned personal decorations through military service. The Ninth Circuit nonetheless decided that this portion of the Act was unconstitutional on Free Speech grounds holding that if the district court decision was upheld and the Act was valid, “there would be no constitutional bar to lying . . . to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway.” United States v. Alvarez, 617 F.3d 1198, 1200 (9th Cir 2010).
A. CONSTITUTIONAL ISSUES
The issue is a serious problem as “false claims of military valor have been increasing: ‘The FBI investigated 200 stolen valor cases last year and . . . triple the number [of tips] that came in before the September 2001 terrorist attacks.’” Id. at 1239, (Judge Bybee dissenting). The FBI record in subsequent months showed how many individuals were actually violating the statute that holds that individuals can be fined or imprisoned for wearing medals or uniforms that were not earned or making false statements to that effect. Cases challenging the Constitutionality of the statute arose in the Fourth, Eighth, and Ninth Circuits and on October 17th, 2011, the Supreme Court granted certiorari to hear Alvarez v. United States presumably to decide whether the statute violates the First Amendment.
Those that challenge the statute argue first, that while the First Amendment does not generally protect false statements, permitting Congress to allow prosecution of the mere “utterance” would allow for significant interference with our personal and public conversations. Alvarez, 617 F.3d at 1200, 1204. The implication is that the statute is overbroad and the government would be constitutionally permitted to prosecute lying for the sake of lying. Id. at 1203. Challengers argue secondly that the statute itself is unnecessary as there are other remedies for claiming false honors to other individuals’ detriment. Moreover, the societal humiliation placed on that individual should be enough to deter anyone of a sane disposition to claim unbestowed honors. Id. at 1211.
Those that support the legislation maintain that there is no constitutionally protected right to lie, especially with regard to the sacredness of military honors, and Congress has limited false speech in certain circumstances without issue. They also argue that the statute is not overbroad and the possibility of government interference like the “lies to one’s mother” situation the Alvarez majority claims is de minimis. Id. at 1213. The government interest is that allowing people to wear insignia and awards that are not earned is not only disrespectful but detracts from the sacredness of those honors.
B. THE SUPREME COURT TAKES THE CASE
On October 17, 2011, after the Ninth Circuit refused to hear the case en banc, the Supreme Court decided to hear United States v. Alvarez to presumably finalize the constitutional issue. Brief for Petitioner at 2, United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010) (No.11-210), 2011 WL 3645396 (2011). One cannot predict with great certainty the outcome of the case, however, the Roberts Court has been significantly and consistently pro-free speech. Ronald Kenneth Anguas, et al. 124 Harv. L. Rev. 179, 242 (2010-2011). Symbolic desecration could be an analogous situation as in Texas v. Johnson where the Court decided that flag desecration was constitutionally protected. Current Associate Justices Scalia and Kennedy voted with the majority. Justice Stevens dissented. Similarly in United States v. Stevens the Court voted eight to one that 18 U.S.C. § 48 forbidding the publication of videos of animal cruelty was overbroad and unconstitutional, falling under the protection of the First Amendment right to free speech. United States v. Stevens, 130 S.Ct. 1577, 1580 (2010). The Supreme Court has limited speech in historically protected areas such as fraud, defamation, obscenity, and incitement; however, these situations typically fall outside the First Amendment protection because of their intimate connection with criminal activity or the harm that they produce. Calvert at 11.
Judge Bybee, the lone Ninth Circuit Alvarez dissenter, suggests the overbroad problem could be easily eliminated through legislative construction, thus making the statute facially constitutional. Calvert at 33. Judge O’Scannlain explained in his dissent from the Ninth Circuit’s refusal to hear the case en banc that the list of protected speech described by the Alvarez majority is not exhaustive and false statements of fact have not been traditionally protected by the First Amendment. United States v. Alvarez 617 F.3d 1198 (9th Cir. 2010), reh’g denied (No. 08-50345), 3774 (Judge O’Scannlain dissenting) (filed March 21, 2011) (http://www.ca9.uscourts.gov/datastore/opinions/2011/03/21/08-50345.pdf) (last accessed November 21, 2011). He further describes that the harm requirement is satisfied in the language of the statute because all false statements of military valor contribute to the “damage . . . the reputation and meaning of such decorations and medals.” Id. at 3777. The Court could distinguish Alvarez from these two cases and agree with Judge Bybee and Judge O’Scannlain of the Ninth Circuit, thereby slowing its free-speech-friendly momentum. Conversely, the Court could follow the current trend and hold that the false representation of military valor, without something more, is protected as free speech.
C. MILITARY IMPLICATION
Civilians must understand that within the military, wearing honors without authorization is taken with the utmost seriousness and enforced by a powerful and effective system. When I became a Second Lieutenant, I had to receive special permission from my command to wear a medal that I had earned but that had yet to become official on the Marine Online database. Outside active duty, there is no real enforcement system for false representations of valor. The idea that someone can claim honors that are not earned is, of course, appalling, but is there enough government interest to limit freedom of speech? Some describe the statute as prosecuting a victimless crime. Farid Sharaby, 41 McGeorge L. Rev. 619, 623 (2009-2010). The United States’ Reply Brief in Alvarez asserts that “the provision serves a compelling interest in protecting the integrity of the military honors program, thereby preserving the medals’ ability to foster morale and esprit de corps in the military.” Reply Brief for the United States at 8, United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010) (No. 11-210), 2011 WL 4518472 (2011). General George Washington, in establishing the then highest military honor in 1782 wrote, “Should any who are not entitled to these honors have the insolence to assume the badges of them they shall be severely punished.” The Writings of George Washington from the Original Manuscript Sources, 1745-1799, (John C. Fitzpatrick ed.) (General Orders) http://memory.loc.gov/cgi-bin/query/r?ammem/mgw:@field(DOCID+@lit(gw240544)) (last accessed November 21, 2011). The Supreme Court will decide next year whether the Stolen Valor Act of 2005 exceeds the scope of General Washington’s concern and violates this nation’s commitment to free speech.