Supreme Court refuses to create new First Amendment exception for lying

The U.S. Supreme Court on Thursday ruled 6-3 that the Stolen Valor Act, which makes it a crime to falsely claim receipt of military accolades, violates the First Amendment.

The decision was a plurality, with a majority of the justices ruling the law unconstitutional, but two groups approaching the decision with different reasoning. The Court agreed that while there are “some categories of speech that have been historically unprotected… the Government has not demonstrated that false statements should constitute a new category.”

Justice Anthony Kennedy, joined by Chief Justice John Roberts, Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor, said the Court applies the “most exacting scrutiny,” also known as “strict scrutiny,” in assessing content-based restrictions on free speech. The Stolen Valor Act does not satisfy that scrutiny, they ruled.

“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. “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 respondent.”

Kennedy suggested the government could protect the integrity of military decorations by establishing an accessible and searchable database of award recipients on the Internet.

Justices Stephen Breyer and Elena Kagan said in a separate, concurring opinion that the Court should apply a less-rigorous standard known as “intermediate scrutiny.” Nonetheless, they found that the Act restricts speech disproportionately to the harm the law seeks to prevent, and therefore it violates the First Amendment. The duo, however, suggested Congress could rewrite the law to achieve the government’s objective in “less burdensome ways.”

“The First Amendment risks flowing from the Act’s breadth of coverage could be diminished or eliminated by a more finely tailored statute, for example, a stature that requires a showing that the false statement caused specific harm or is focused on lies more likely to be harmful or on contexts where such lies are likely to cause harm,” they said.

Justices Samuel Alito, Antonin Scalia and Clarence Thomas filed a dissenting opinion.

The decision announced Thursday comes in the case of United States v. Alvarez.

Alvarez was indicted in 2007 after he falsely told his fellow members of the Three Valley Water District Board in California that he was a retired U.S. Marine and had been awarded a Congressional Medal of Honor. The statements, according to the Kennedy opinion, do not seem to have been made to secure employment or financial benefits, but rather were a “pathetic attempt to gain respect that eluded him.”

The Reporters Committee for Freedom of the Press, along with 23 other media organizations, submitted a friend-of-the-court brief  in the case, explaining that a ruling allowing the government to criminalize false statements would strike at the heart of press freedom.

“This nation owes an extraordinary debt of gratitude to its military heroes – especially our fallen heroes – whose valor is symbolized by military decorations. Because of this, it may be tempting to weaken constitutional principles to permit prosecution of a scoundrel like Alvarez, who dishonors their service by falsely claiming to be one of them,” the brief states. “But it would devalue military sacrifices even more to limit freedom for this reason, because failure to understand and apply core constitutional precepts in cases involving the least worthy among us inherently undermines principles needed to safeguard the most worthy.”

If the ruling of the 9th U.S. Circuit Court of Appeals was not upheld, the brief states it would “turn the clock back” to a time when false reports were considered outside the range of the First Amendment. One example listed was a 1920 court decision to uphold the conviction of a newspaper for violating an Espionage Act provision prohibiting the making of false reports intended to interfere with military operations.

“Little would be left of press freedom if the government could again prosecute criticism of official policies to the extent news reports contain what the government alleges to be deliberate false statements of fact,” the brief states. “The government’s jaundiced conception of ‘breathing space’ paradoxically would suck all the oxygen from the marketplace of ideas.”