Last year NSLB posted an article addressing the Constitutional issues surrounding the impending Supreme Court case regarding fraudulent use of the Medal of Honor. The Supreme Court this summer held 6-3 in U.S. v. Alvarez that the Stolen Valor Act, 18 U.S.C. §§ 704(b), violates the First Amendment right to free speech.
At his first meeting as a member of the California Three Valley District Water Board, Xavier Alvarez introduced himself as, “a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” The Court describes this as a “pathetic attempt to gain respect that eluded him.” Mr. Alvarez was subsequently convicted of violating the highest level of the Stolen Valor Act. The Ninth Circuit held that the Act was unconstitutional and reversed Mr. Alvarez’s conviction. After the Court granted certiorari, the Tenth Circuit heard a similar case and found the Act to be constitutional.
Justice Kennedy wrote for the Plurality that included The Chief Justice, Justice Ginsburg, and Justice Sotomayor. The Plurality applied strict scrutiny to the content-based restriction and found the Act unconstitutional, citing New York Times Co. v. Sullivan: “this comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.” The Court distinguished the other exceptions for limiting
false speech as having some “legally cognizable harm,” adding that the Stolen Valor Act prohibits “falsity and nothing more.” The Court later expressed its concern that the Act would pave the way for further limitations on “personal, whispered conversations within a home.” The Court concluded with the suggestion that the government create an Internet database to combat false claims of merit using counter-speech.
Justice Breyer wrote a concurrence, joined by Justice Kagan, where he explained his disagreement with the strict scrutiny analysis. He would have applied intermediate scrutiny, or “’proportionality’ review.” The concurrence stated that this type of false statement is unlikely to contribute to the marketplace of ideas and that the government often has good reasons to prohibit such false speech. It went on to analogize the present statute with trademark infringement statutes in diluting the value of the mark to its owner. The concurrence used language that suggests that the statute might be appropriate if it were require a showing that the harm would, in fact, take place (2555-56): “And a more finely tailored statute might, as other kinds of statutes prohibiting false factual statements have done, insist upon a showing that the false statement caused specific harm or at least was material, or focus its coverage on lies most likely to be harmful or on contexts where such lies are most likely to cause harm.”
Finally the Dissent, written by Justice Alito and joined by Justice Scalia and Justice Thomas, used an analysis similar to the Concurrence, but in favor of the government. Justice Alito began with stating that the statute is limited, noting five specific ways. He pointed out that there is a real problem in the United States regarding individuals claiming false military honors:
“in a single year, more than 600 Virginia residents falsely claimed to have won the Medal of Honor.An investigation of the 333 people listed in the online edition of Who’s Who as having received a top military award revealed that fully a third of the claims could not be substantiated.When the Library of Congress compiled oral histories for its Veterans History Project, 24 of the 49 individuals who identified themselves as Medal of Honor recipients had not actually received that award. The same was true of 32 individuals who claimed to have been awarded the Distinguished Service Cross and 14 who claimed to have won the Navy Cross. Notorious cases brought to Congress’ attention included the case of a judge who falsely claimed to have been awarded two Medals of Honor and displayed counterfeit medals in his courtroom;a television network’s military consultant who falsely claimed that he had received the Silver Star; and a former judge advocate in the Marine Corps who lied about receiving the Bronze Star and a Purple Heart.”
He then noted that the lies here do, in fact, have a cognizable harm, citing cases where individuals have received benefits and monetary gains for their false claims. He went further to note that where the harm is less tangible, it is no less significant. Most poignantly, Justice Alito drew similarities to the trademark infringement statutes that Justice Breyer mentioned in his concurrence. Justice Alito rhetorically noted, “surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country’s top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags.” He went on to point out that the ‘database’ solution the Plurality suggested will simply not work, as the government is unable to compile accurate lists of all citation winners before 2001. (Office of Undersecretary of Defense, Report to the Senate and House Armed Services Committees on a Searchable Military Valor Decorations Database 4–5 (2009)). Moreover, since the database would not be able to disclose personal information about the recipients, it would be of only limited use.
I do not mean to opine on the Court’s determination in any respect, but simply to communicate the basics of what was handed down for those of us involved in national security and military justice. With the present conflicts winding down, courts should be prepared for a rise of military-civilian litigation like this.