Under the First Amendment, can the federal government criminalize falsely claiming to have received a military award?
Respondent Xavier Alvarez, an elected member of the Three Valleys Water District, lied about receiving a Congressional Medal of Honor during a board meeting. His lie violated the Stolen Valor Act, which Congress enacted to preserve the value of military awards, and he was criminally convicted and sentenced to probation. Alvarez challenged the facial constitutionality of the Act under the First Amendment, and prevailed on appeal. The United States argues that a “breathing space” test should apply because the Act only limits knowingly false factual statements, and that under this test the Act does not violate the First Amendment. Alvarez counters that strict scrutiny should apply because the Act imposes a content-based restriction, and under strict scrutiny, the Act is an unconstitutional restriction of free speech. The ruling in this case may affect the value of military awards, as well as the legal treatment of other false representations.
Questions as Framed for the Court by the Parties
Section 704(b) of Title 18, United States Code, makes it a crime when anyone "falsely represents himself or herself, * * * verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States."
The question presented is whether 18 U.S.C. 704(b) is facially invalid under the Free Speech Clause of the First Amendment.
In 2006, Congress enacted the Stolen Valor Act, 18 U.S.C. § 704(b), to prohibit people from falsely representing that they have been awarded a medal from the United States Armed Services. See U.S. v. Alvarez, 617 F.3d 1198, 1200 (9th Cir. 2010). Congress’ purpose in passing the Act was to uphold the “reputation and meaning” of military awards. See id. Lying about the receipt of a military award constitutes a misdemeanor under the Act, punishable by as much as a year in prison. See id.
In 2007, Respondent Xavier Alvarez was serving as an elected member of the Board of Directors of the Three Valleys Water District in Claremont, California. See id. at 1200. During a board meeting, Alvarez stated to his fellow members: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I'm still around.” See id. This statement was a lie—he never served in the marines or received a Medal of Honor. See id. at 1200–01. In fact, Alvarez had frequently lied about his accomplishments in the past, often fabricating sensationalistic stories about his purported military service. See id. at 1201.
After Alvarez made his untruthful statement in the board meeting, the Federal Bureau of Investigation received a recording of the statement, and initiated a proceeding against Alvarez in the United States District Court for the Central District of California for violating the Stolen Valor Act. See id. at 1201. Specifically, Alvarez was charged with violating provisions 18 U.S.C. §§ 704(b) and (c)(1) of the Act. Alvarez was subsequently convicted of these violations. See id. The charge against Alvarez emphasized the fact that he knew he was lying when he stated that he had received a Medal of Honor. See id.
Alvarez filed a motion to dismiss the indictment, attacking the constitutionality of the Stolen Valor Act; he asserted that the Act was unconstitutional both as written and as applied to him under the First Amendment. See id. at 1201. The district court denied his motion and sentenced him to probation for three years, 416 hours of community service, and a fine of $5000. See id. Alvarez conditionally pled guilty to the first count and appealed the First Amendment issue to the United States Court of Appeals for the Ninth Circuit. See id.
The Ninth Circuit reversed Alvarez’s conviction, holding that the Stolen Valor Act violates the First Amendment. See id. at 1200, 1208. The court determined that the broad prohibition articulated in the Act unconstitutionally limits free speech—it is not narrow enough to meet a “compelling government interest.” See id. at 1200, 1208. The United States appealed this ruling, and the United States Supreme Court granted certiorari on October 17, 2011 to address whether the Stolen Valor Act is, on its face, an unconstitutional violation of the First Amendment.
In this case, the Supreme Court will decide whether the Stolen Valor Act, which criminalizes false claims of receiving military honors, violates the First Amendment of the U.S. Constitution. The United States argues that a compelling state interest in protecting the integrity of the military awards program necessitates a prohibition on knowingly false claims to military awards. See Brief for Petitioner, United States at 36–37. In contrast, Alvarez argues that the United States failed to demonstrate any connection between false claims to receiving military awards and reduced morale in the military, and also that the Stolen Valor Act criminalizes speech protected under the First Amendment. See Brief for Respondent, Xavier Alvarez at 19, 28.
Standard of Review
The United States argues that, because the Court treats false statements differently than true ones, the Court should review the Stolen Valor Act under a lower standard than for other content-based restrictions. See Brief for Petitioner at 20. The United States argues that the validity of the Stolen Valor Act should depend on the strength of the state interest in protecting official military awards, and that the Act should be reviewed from a perspective that focuses on the provision of a “breathing space” for protected speech within legislative restrictions. See id. at 20–21. Remarking that the Court has not recognized constitutional value in false statements, the United States argues that a restriction on a knowingly false statement is valid if the restriction does not inhibit or “chill” legitimate statements that the First Amendment protects. See id. at 18–19, 21. The United States argues that a valid restriction on speech leaves “breathing space” for protected speech. See id. at 20–21. The United States notes that the Court used the “breathing space” analysis in categories such as fraud, intentional infliction of emotional distress through false statements, false promises during political campaigns, and tortious statements depicting a person in a “false light”. See id. at 25–27. The United States contends that, because the Stolen Valor Act restricts the same kind of knowingly false speech as these categories, the Court should review the Stolen Valor Act with the same “breathing space” test. See id. at 28.
Additionally, the United States argues that applying the highest standard of review—strict scrutiny—would depart from the Court’s previous treatment of federal restrictions on false statements. See Brief for Petitioner at 29. The United States offers the example of 18 U.S.C. 1001(a), a valid law, which prohibits fraud against the government through false statements, regardless of intent to deceive. See id. The United States claims that the Court has not required knowledge of falsehood in other laws that restrict false statements because a sufficiently strong state interest supported each law. See id. at 32–33.
In contrast, Alvarez argues that the First Amendment requires the United States to demonstrate that the Stolen Valor Act is the least restrictive way to solve a significant societal problem. See Brief for Respondent at 16–17. Alvarez maintains that, under the First Amendment, any law restricting the content of speech is facially invalid, with only a few exceptions. See id. at 12–13. Alvarez lists the historically unprotected speech categories as: obscenity, defamation, and fraud. See id. at 13. Alvarez argues that this list of exceptions excludes lying about receiving awards for military service. See id. Alvarez argues that, because the Stolen Valor Act restricts the content of speech and does not target a historically unprotected category of speech, the Court should find the Stolen Valor Act invalid under a strict scrutiny test. See id. at 15.
Alvarez also argues that a lower standard of review balancing the value of speech against its costs should not be applied in this instance. See Brief for Respondent at 33. Alvarez claims that the United States’ test would weaken the requirement that a state interest in restricting speech be compelling, and would allow less important state interests to suffice. See id. at 35. Alvarez contends that the United States’ test is fundamentally the same as the test that the Court rejected in United States v. Stevens. See id. at 34–35. According to Alvarez, both the United States’ current test and the rejected test in Stevens disregard historical categories of unprotected speech and grant the government the unjustifiable power to decide which speech to protect and which to prohibit. See id. at 34–35. Further, Alvarez argues that the United States distorts the “breathing space” test for restrictions on historically unprotected categories of speech. See id. at 46–47. Alvarez claims that, for restrictions on historically unprotected categories of speech, explicit elements—e.g., scienter and materiality—permit “breathing space” for protected speech. See id. at 47, 53. The Stolen Valor Act, according to Alvarez, fatally lacks these elements. See id. at 28–29.
State Interest in Protecting the Military Awards Program by Restricting False Claims
The United States argues that the state interest in military service is so strong and compelling that the narrowly tailored Stolen Valor Act survives even the highest level of scrutiny. See Brief for Petitioner at 54. Military awards, according to the United States, not only encourage valor and service, but also educate the public about honorable actions. See id. at 37–38. Additionally, the United States contends that the program of military awards motivates service members to be brave and act honorably. See id. at 38. The United States contends that the criteria for conferring an award are stringent; only the most deserving candidates receive honors. See id. at 39–40. The United States argues that, because the exclusion of undeserving candidates makes the award valuable to the exceptional few who receive it, false claims to military awards dilute and depreciate the value of true awards. See id. at 41–42. Further, according to the United States, the Stolen Valor Act, while prohibiting knowingly false claims to military awards, does not deter legitimate, hyperbolic assertions of valor or other false, self-aggrandizing claims. See id. at 52. The United States argues that the implied scienter or knowledge requirement of the Stolen Valor Act avoids deterrence of truthful or mistakenly false speech. See id. at 16, 47. Noting that the Stolen Valor Act permits criticism of the military awards program and false descriptions of valor, the United States argues that the Stolen Valor Act is narrowly tailored to the state interest in preserving the integrity of the military awards program by targeting only knowingly false claims to military awards. See id. at 45.
Alvarez questions the extent to which medals and ribbons actually cause praiseworthy behavior, and argues that the United States fails to offer a sufficiently strong or important interest to justify the broad restriction on speech, even under the “breathing space” test. See Brief for Respondent at 57. Rejecting the United States’ categorization of false speech as valueless, Alvarez contends that the United States mischaracterizes the harm of the Stolen Valor Act on society by drastically undervaluing false speech. See id. at 37. Alvarez invokes the “marketplace of ideas” theory, in which the competition of statements sharpens distinctions between facts and falsehoods and enhances participants’ analytical abilities. See id. at 38–39. Alvarez asserts that, under this theory, the mere capacity to enter the marketplace has great societal value, and the capacity to lie facilitates individual autonomy. See id. Contending that the Stolen Valor Act criminalizes more than the United States alleges, Alvarez argues that the Act would prohibit irony, hyperbole, and parody. See id. at 30–32. In response to the United States’ claim that the Act is narrowly tailored, Alvarez suggests that other governmental measures could address the problem of devaluing the military award program without threatening First Amendment protections. See id. at 19–20, 22. As examples, Alvarez cites a public database of award recipients, educational programming about service and honor, and prosecuting false recipients of official benefits for fraud. See id. at 22–23. Further, Alvarez argues that the United States undervalued the role of the public in attacking false claims to military awards, and overstated the difficulties involved in a private citizen's attempt to access public records in a database of award recipients. See id. at 23–25.
In this case, the Supreme Court will determine whether the First Amendment’s protection of free speech extends to lying about receiving military awards. Petitioner, the United States, argues that, because the Stolen Valor Act only prohibits knowingly false factual statements, it is subject to a relatively deferential “breathing space” inquiry, and that, under this test, there is a compelling government interest enabling the Act to survive. See Brief for Petitioner, United States at 18, 36–37. Respondent, Xavier Alvarez, counters that the Act should be subject to strict scrutiny because it imposes a content-based restriction, and that, since it is not narrowly tailored to achieve a compelling government interest, the Act cannot survive this test. See Brief for Respondent, Xavier Alvarez at 11.
Preserving the Value of Military Awards
The American Legion argues that the Stolen Valor Act’s criminalization of lies is crucial to preserving the integrity of military awards. See Brief of Amicus Curiae The American Legion in Support of Petitioner at 14–15. The American Legion argues that many benefits are available to recipients of military awards, and that, without some kind of prohibition, imposters could wrongfully access government disability payments, tax breaks, and other social benefits. See id. at 21–22. Military awards like the Medal of Honor also have inherent value, conferring respect and status on the recipients, the Congressional Medal of Honor Foundation (“CMOHF”) contends. See Brief of Amicus Curiae The Congressional Medal of Honor Foundation (“CMOHF”) in Support of Petitioner at 17. The Legion of Valor and the Criminal Justice Legal Foundation argue that individuals who lie about receiving these awards reduce the value of military awards by causing other people in society to doubt the real recipients. See Brief of Amici Curiae The Legion of Valor, et al., in Support of Petitioner at 11.
The National Association of Criminal Defense Lawyers (“NACDL”) counters that individuals, like Alvarez, who lie about receiving military awards do not dilute the meaning and prestige of these awards. See Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Respondent at 36. Indeed, NACDL argues, the very fact that people like Alvarez falsely claim to have received awards indicates that they still have great value. See id. Alvarez himself asserts that the military knows who the true recipients are and can confer benefits on these people without being hampered by false claims. See Brief for Respondent at 19–20. Additionally, the American Civil Liberties Union and the ACLU of Southern California (collectively “ACLU”) argue that there are better ways to preserve the status of awards than restricting speech, such as maintaining a searchable database of award recipients or initiating a public campaign to promote respect for military honors. See Brief of Amici Curiae the American Civil Liberties Union and the ACLU of Southern California (“ACLU”) in Support of Respondent at 25.
Accepting False Representations in Society
CMOHF contends that limiting false representations about military awards is beneficial to society. See Brief of CMOHF in Support of Petitioner at 9–10. CMOHF argues that ensuring the meaningfulness of awards inspires troops and encourages citizens to join the armed forces. See id. The Legion of Valor and the Criminal Justice Legal Foundation explain that the value of awards is mostly psychological, and that, in order for medals to foster morale in this way, recognition must be based on real merit. See Brief of Amici Curiae The Legion of Valor, et al. at 13. Furthermore, twenty states contend that, since a military award is a verifiable fact, there is no risk that the speaker will be punished for expressing an opinion or making an honest mistake. See Brief of Amici Curiae Texas, Alabama, Alaska, et al. in Support of Petitioner at 5. Additionally, the states argue, it is acceptable for society to limit a lie about a verifiable fact because the lie cannot contribute to the public’s search for truth. See id. at 5–6.
The American Booksellers Foundation for Free Expression and eight other media groups (“Media Coalition”) counter that judging the acceptability of speech by the social harm it might cause is not desirable for society. See Brief of the American Booksellers Foundation for Free Expression, et al. in Support of Respondent at 18–19. The Media Coalition argues that lying is valuable in order to expose truth. See id. at 16–18. There is also value, the First Amendment Lawyers Association contends, in having people figure out for themselves why a statement is wrong. See Brief of Amicus Curiae the First Amendment Lawyers Association in Support of Respondent at 16–17. The ACLU adds that our society values the freedom to lie in asserting individual autonomy and achieving self-fulfillment. See Brief of Amicus Curiae ACLU at 19. Allowing the Stolen Valor Act to limit lies, the ACLU contends, could set a precedent for Congress to enact laws criminalizing dishonest acts like the posting of "puffed-up" profile information on dating sites and false qualifications on resumes. See id. at 18.
This case will determine whether the Stolen Valor Act's prohibition of falsely claiming to have received a military award is valid under the First Amendment. In addition to deciding whether to apply the strict scrutiny or the “breathing space” test, the Court will decide whether the Stolen Valor Act targets a historically unprotected category of speech. Further, the Court will decide whether the United States has demonstrated a sufficiently strong governmental interest to justify the restriction of false claims to receiving military awards. The Court’s ruling may affect the value of military awards, and may also signal the level of protection that the First Amendment offers to other false representations.
Wex: First Amendment
New York Times, Adam Liptak: Justices Take Case on Lying About Honors from Military (Oct. 17, 2011)
Thomson Reuters News & Insight: U.S. Supreme Court to Hear Military Medal Lying Case (Oct. 17, 2011)
ABA Journal, David L. Hudson, Jr.: Rumors of War Medals: The First Amendment May Protect Lying About Military Awards(July 1, 2011)