With the public eye focused on the Healthcare decision and the Arizona immigration law decision, yesterday’s U.S. v. Alvarez decision (http://www NULL.supremecourt NULL.gov/opinions/11pdf/11-210d4e9 NULL.pdf) slipped under the radar with little attention. But this decision is just as wrong and just as tragic as the others, and it is a slap in the face to those who have served with distinction in the military service of our nation.
The Stolen Valor Act makes it a crime to falsely claim receipt of military decoration or medals. Alvarez, a board member of the Three Valley Water District in California, falsely claimed to be a retired U.S. Marine and a recipient of the Congressional Medal of Honor. When he was prosecuted, the U.S. District Court rejected his claim that the Act violated First Amendment free speech guarantees, but the Ninth Circuit reversed. Yesterday the Supreme Court agreed with the Ninth Circuit. Justice Kennedy wrote the plurality opinion joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor. Justice Breyer and Justice Kagan concurred in a separate opinion, while Justice Alito, Justice Scalia, and Justice Thomas dissented. I agree with the dissent.
The plurality notes that certain forms of expression are outside the protection of the First Amendment, among them speech advocating a crime, speech advocating the violent overthrow of the government, obscenity, fraud, and defamation. But even though Congress had found that the Stolen Valor Act is needed to preserve the value of military medals against those who would dilute that value by false claims, the Court disagreed, noting that the U.S. Government had failed to present hard evidence that such false claims in any way dilute the value of military medals.
Again, I respectfully disagree. Hard evidence isn’t necessary to prove what is patently obvious. If people like Alvarez falsely claim to have received such medals, it is only natural that people will doubt those who really have received them. In his dissenting opinion, Justice Alito noted that Congress passed the Stolen Valor Act in response to a proliferation of false claims. “In a single year,” he says, 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.” Justice Alito also convincingly demonstrates that Justice Kennedy’s suggestion of a military database as a less restrictive means of correcting false claims is not practicable.
I do agree that the Stolen Valor Act might be overbroad. However, Justice Scalia notes that the Act, properly construed, applies only when it can be proven beyond a reasonable doubt that the speaker knew his claim was false.
Language in the plurality opinion suggests that a similar act might pass constitutional muster if it is limited to cases in which a person falsely claimed military medals in order to secure employment or otherwise for personal gain. I hope Congress will immediately act to pass a Stolen Valor Act that contains those limitations, although I regret that the Court has made those limitations necessary.
One final observation: On the three key decisions this week — Healthcare, Immigration, and Stolen Valor — Chief Justice Roberts has been on the wrong side of all three. Even so, we have to balance this against the many fine rulings he has made in the past, and, hopefully, will make in the future.