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.

Lies and Levels of Scrutiny

By Associate Professor Aaron Caplan

The Stolen Valor Act is a federal statute that made it a crime to falsely say that one had received a military medal, even if that false statement was not made as a part of any scheme to counterfeit or defraud and even if no one believed the statement. In United States v. Alvarez, a 6-3 majority of the Supreme Court agreed with the 8-1 majority of my First Amendment students that the Act violates the constitution. The government has power to punish lies that cause concrete harms (such as fraud, defamation, or perjury), but it may not punish lies simply because they are distasteful. The proper response upon hearing distasteful lies is to counter them by speaking the truth.

I believe - like a majority of my students - that the Court decided this case correctly, but the reasoning used by a majority of Justices has the potential to establish constitutional standards that are less speech-protective than meets the eye. To begin with, there was no majority opinion. The four-justice plurality opinion by Justice Kennedy (joined by Roberts, Ginsburg and Sotomayor) was joined by a two-justice concurrence by Justice Breyer (joined by Kagan). Both opinions seemed to readily accept the notion that the government had a valid interest in controlling what people think about military medals as a means to protect the "integrity" or reputation of the government's chosen symbols. As I have written previously, I do not think this kind of mind control is a legitimate government interest at all, let alone a strong one. In this, I seem to be outvoted my all nine members of the Supreme Court (and for what it was worth, all of my students).

What actually separated the plurality and concurring opinions in Alvarez was a crucial question: by what standard should courts assess laws that criminalize speech based on content that does not fall into one of the historically recognized proscribable categories (obscenity, threats, etc.)?