Stolen Valor Act: UNCONSTITUTIONAL

By a plurality the court ruled the Stolen UNCONSTITUTIONAL.

I am currently going through the decision and the dissent(s) and will post relevant portions from them as the day progresses.

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The Stolen Valor Act was ruled unconstitutional by a plurality decision of the Supreme Court today.  As I go through the ruling I will have more information that I will post here.

OK, so the way it broke down I felt was somewhat surprising.  Thomas, Scalia and Alito were with us, as expected.  But Roberts shifted over, which I had not expected.  And so, our hope of a 5-4 win turned into a 6-3 loss when Kennedy joined Roberts on the other side as well.  But, all is not lost, there is significant hope to be found even within a ruling that went against us.

Before I leap into parts of it, I wanted to show you what the Scotusblog had to say about the case.  ScotusBlog is written by lawyers and constitutional scholars, and lays it out better than I can:

Justice Kennedy announced a plurality opinion – joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor – and concluding that the Stolen Valor Act infringes on protected speech. The plurality reasoned that, with only narrow exceptions, content-based restrictions on speech face strict scrutiny, and are therefore almost always unconstitutional. False statements of fact do not fall within one of these exceptions, and so the Stolen Valor Act can survive strict scrutiny only if it is narrowly tailored to a compelling government interest. The Court concluded that the Stolen Valor Act is unconstitutional because the Government had not shown that the statute is necessary to protect the integrity of the system of military honors – the interest the Government had identified in support of the Act.

Justice Breyer, joined by Justice Kagan, concurred separately, concluding that the Stolen Valor Act, as drafted, violates intermediate scrutiny. These Justices argued that intermediate scrutiny is the appropriate standard because the Government should have some ability to regulate false statements of fact. However, because the statute, as drafted, applies even in family, social, or other private contexts where lies will often cause little harm; it includes few other limits on its scope, and it creates too significant a burden on protected speech. The concurring Justices believe that the Government could achieve its goals in a less burdensome way, and so they too held the Stolen Valor Act unconstitutional.  This opinion leaves open the possibility that Congress will re-write the law more narrowly. Three Justices, led by Justice Alito, dissented.

The main thing to take away from the Alvarez case is that the Supreme Court felt that the bill wasn’t sufficiently “narrowly tailored.”  When dealing with anything that touches on a Constitutional Right, it has to be written as small in scope as possible, so that it avoids “chilling” speech which is protected.  The Court felt that this statute was too broadly defined.  But, it did hold out that other measures are available.  I hate to start with a dissent, but Justice Alito ties together the opinion itself (Kennedy writing for the Chief Justice, Ginsburg and Sotomayor) with the concurring  opinion of Justice Breyer (and Kagen):

The plurality and the concurrence also suggest that Congress could protect the system of military honors by enacting a narrower statute. The plurality recommends a law that would apply only to lies that are intended to “secure moneys or other valuable considerations.” Ante, at 11. In a similar vein, the concurrence comments that “a more finely tailored statute might . . . insist upon a showing that the false statement caused specific harm.” Ante,at 9 (opinion of BREYER, J.). But much damage is caused, both to real award recipients and to the system of military honors, by false statements that are not linked to any financial or other tangible reward. Unless even a small financial loss—say, a dollar given to a homeless man falsely claiming to be a decorated veteran—is more important in the eyes of the First Amendment than the damage caused to the very integrity of the military awards system, there is no basis for distinguishing between the Stolen Valor Act and the alternative statutes that the plurality and concurrence appear willing to sustain.

So, essentially what they are saying is that the bill needs to be written much like Fraud Statutes.  This is already happening in part, as Congresman Joe Heck of Nevada has already authored one in HR 1775:

Heck offered a tacit endorsement of that ruling a few months later when he offered a new Stolen Valor Act that achieves almost the same ends as the one being challenged at the Supreme Court, while steering fully clear of the matter of speech.

Heck’s law makes it a crime to benefit from falsely claiming to have served in the military or have been decorated for that service.  Individuals who knowingly lie “with intent to obtain anything of value” would be subject to the same prison terms: Up to six months for basic lies about military service, and up to a year for lying about receiving the Medal of Honor, should those lies be told with the intention of gaining a job, a reward, or other thing of value.

The bill doesn’t specify exactly what “anything of value” is, though a de minimis clause in the bill suggests it couldn’t be applied if the thing procured by lying is of minimal value, such as a beer at a bar. The thing in question must also have a value that is quantifiable, so lies about military service told with the intention of getting the attention, a date, or something less gentlemanly with a person at that same bar is also likely not prosecutable.

I will have more on this as I get through the reading, but keep getting interrupted with calls from the media.

 

 

Category: Politics