The Supremes Say It's Okay to Steal Your Valor

By Associate Clinical Professor Jessica Levinson

[This op-ed originally appeared on The Huffington Post.]

Hello, my name is Jessica. I will be stealing your valor. Well, I may not actually pilfer your valor, but thanks to the Supreme Court, I can if I so chose.

Much, if not all of the recent news coverage of the Supreme Court has understandably focused on the court's decision to uphold President Obama's landmark healthcare law. Reporters and commentators have largely failed to cover another decision that came out on the last day of the 2011-12 term.

In a 6-3 decision, the court told us to say goodbye to the 2005 Stolen Valor Act. That Act made it a crime to falsely claim military awards or decorations. The court ruled that the Act is unconstitutional because it contravenes the First Amendment. Thanks to the Supreme Court disreputable men everywhere will have to search for a new pickup line when barhopping by military bases.

This case began when a true lowlife, Xavier Alvarez, told people at a meeting of the Three Valleys Municipal Water District governing board in Los Angeles County that he was a Marine who received the Medal of Honor. Seemingly the only honor Alvarez received was being a member of the water district governing board.

Alvarez was prosecuted under the Stolen Valor Act and eventually pleaded guilty to violating it.

How does one defend this law? The federal government was in the unenviable position of arguing to uphold the Act before the court. The government essentially argued that statements barred by the Act (lies about receiving military medals and decorations) are false statements that have no value and do not deserve First Amendment protection.

The court did not buy that argument. Justice Kennedy, writing for the majority, got it exactly right when he said the First Amendment "protects the speech we detest as well as the speech we embrace." Echoing George Orwell's fears in the revolutionary and terrifying novel about totalitarianism, 1984, Kennedy mused that the allowing the government to prohibit speech because it is false would create a Ministry of Truth.

Kennedy's fears are well founded. The First Amendment protects not just what we want to say and hear, but also disgusting, despicable statements that we would rather people not say or hear. I am not terribly worried that the government will prohibit popular speech embraced by the majority of Americans. I am, however, concerned that the government will see fit to bar speech with which it disagrees, or which it simply finds to be vile and contemptible.

Members of the Supreme Court share that fear, and that is why they are suspicious of laws that infringe on speech rights. This distrust of government motives means that the court applies a high level of scrutiny to most restrictions on speech. Restrictions made on the basis of the content of speech, like the Stolen Valor Act, are presumed invalid.

That is as it should be. Living in a country that prizes the protection of speech, often regardless of how abhorrent that speech is, is not for the faint of heart. Our legal tradition all but ensures that people can say, and may have to listen to, speech which offends us to our core. Difficult as this may be, it is no doubt preferable to living in a country that tells us what can and cannot be said and heard.

The purpose of the Stolen Valor Act is to guard against the devaluation of military honors. While that purpose is undoubtedly a noble one, the solution is not to bar false speech about military medals and decorations. Rather the solution is to foster a free marketplace of ideas, which allows all of us to call people like Alvarez liars and to have an open and robust exchange about military honors. Laws against libel and fraud do tell us that not all lies are created equal, and some may actually harm our ability to have an open and robust debate.

But Alvarez's lie was quickly and easily verifiable and has led to widespread condemnation. It is far better for private citizens to use their own speech rights to hold individuals accountable than it is for the government to prevent people, even those like Alvarez, from speaking.

Luckily the court agreed. The four members of the so-called liberal wing of the court, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, joined Kennedy's opinion. Kennedy also persuaded Chief Justice John Roberts who, despite his decision in the health care case, is nobody's liberal. Three members of the court's conservative faction, Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, dissented.

But despite the fact that the court gathered more than a bare majority to invalidate the law, advocates of the now-overturned law need not despair. Breyer, joined by Kagan, concurred with the result, but wrote a separate opinion signaling that Congress could write a more narrow law that focuses on specific harms that result from lies about military medals and honors.

Congressman Joe Heck (R-Nev.) put forward a bill, before the Supreme Court's decision, which would bar the less-than-honest among us from financially benefitting or otherwise materially gaining from lying about military medals and honors. The court found that Alvarez's lies, while "pathetic" were not made to gain benefits or privileges given to those who had actually earned the Medal of Honor.

In the meantime, I will rejoice in our ability to collectively point and laugh at people like Alvarez.