High Court: Free Speech Trumps Insulted War Heroes

In 6-3 decision, Supreme Court rules Stolen Valor Act had unlimited--and unconstitutional--reach.

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The U.S. Supreme Court building in Washington, D.C.
A general view of the U.S. Supreme Court in Washington, D.C.

The Constitution's guarantee of free speech for all Americans outweighs a law created to punish liars who insult the nation's most-decorated war veterans, the Supreme Court ruled Thursday.

In striking down the Stolen Valor Act of 2005, the high court determined the law was too strict and lacked a legal cut-off valve. Justices warned that had the Valor Act been upheld, the government legally could have brought charges against individuals who merely told white lies over beers with a buddy about getting a military award.

"Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought," Justice Anthony Kennedy wrote in the majority opinion.

"The government's argument simply lacked a limiting principle. Perfectly respectable people sometimes lie to protect their privacy, avoid hurt feelings, make others feel better, duck minor obligations, or protect themselves and others from prejudice," says Jameel Jaffer, deputy legal director at the ACLU. "If the court had endorsed the government's sweeping argument, the government could regulate all of these false statements--and even criminalize them."

[Photos: At the Supreme Court.]

Xavier Alvarez in July 2007 told those assembled for a local California water district meeting that he was a "retired Marine of 25 years" who in 1987 "was awarded the Congressional Medal of honor" after he "got wounded many times."

It soon surfaced that none of that is true. Federal investigators soon came looking for Alvarez, and charged him with violating the Stolen Valor Act, created by Congress to penalize individuals who falsely claim to have earned a military citation.

The six Supreme Court justices who ruled to overturn the law made clear in written opinions released Thursday their collective feelings about Alvarez. (Three justices voted to uphold the 2005 law.)

"Lying was his habit. Xavier Alvarez...lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico," Kennedy wrote. "But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground."

But the six deciding justices disliked something else more than Alvarez: what they described as the flawed, over-reaching and unconstitutional Stolen Valor Act.

While "the government's interest in protecting the integrity of the Medal of Honor is beyond question, the First Amendment requires that there be a direct causal link between the restriction imposed and the injury to be prevented," Kennedy wrote. "Here, that link has not been shown."

Lucy Dalglish of the Reporters Committee for Freedom of the Press applauded the ruling.

"It's always perilous when the court goes out and identifies a totally new category of speech that they're going to be allowed to be regulated," Dalglish says. "They resisted the impulse to do that."

The high court also opted against "elevating some people to a status above all the rest of us," she says. "Do we then go down the road of criminalizing other types of lies? This borders on the silly. ... The justices treat all of us equally and realize the marketplace is the proper place to deal with these issues."

In this case, the marketplace is the public scorn Alvarez endured.

"Veterans groups almost immediately outed this guy and made substantial progress in ruining his life," Dalglish says.

Joel Lynch, general counsel for the Military Officers Association of America, says his organization is "very disappointed with the ruling" and believes "there were ample grounds on which to sustain the law."

"What you've got here is Congress has established a pool of honor and recognition for veterans that do extraordinary things and are recognized through medals and awards," Lynch says. "For someone to reach in and claim that is a theft. This wasn't about a free speech right, but that he was stealing something."

Kennedy was joined in opposing the act by Chief Justice John Roberts, as well as Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. Justices Clarence Thomas, Antonin Scalia, and Samuel Alito voted to keep it on the books.

Kennedy and the dissenters also were unmoved by much of the government's argument defending the law.

"The government points to no evidence supporting its claim that the public's general perception of military awards is diluted by false claims such as those made by [Alvarez]," wrote Kennedy. "And it has not shown, and cannot show, why counter speech, such as the ridicule respondent received online and in the press, would not suffice to achieve its interest."

Breyer, in an accompanying opinion, stated the Valor Act would punish Alvarez and other fibbers for lies that fail to bring about "tangible harm" to insulted parties.

Breyer issued a scathing rebuke of the law's seemingly infinite reach, warning the government could use it to prosecute false statements made "in family, social or other private contexts, where lies will often cause little harm."

As it was constructed, Breyer worried it could be applied "to barstool braggadocio or, in the political arena, subtly but selectively to speakers the government does not like."

John T. Bennett covers national security and foreign policy for U.S. News & World Report. You can contact him at jbennett@usnews.com or follow him on Twitter.

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