Stolen Valor

Read this case summary and answer the following questions. Consider these cases as you formulate your answer.
With whom do you agree, the trial court and Justice Alito’s dissent (it was constitutional), or the U.S. Supreme Court plurality decision (it was unconstitutional)? Explain your opinion and support it with at least one authoritative source, which may include a scholarly article, another U.S. Supreme Court case interpreting the First Amendment, or your textbook (cite to the page number if you refer to the textbook). A blog is not an acceptable source.
Read the revised act and compare the changes to the original. Discuss how these changes address the deficiencies in the original law.

CASE: UNITED STATES V. ALVAREZ ((567 US _____ (2012))
The federal Stolen Valor Act makes it a crime to lie about having been awarded military medals or decorations. A violation is a misdemeanor, punishable by up to one year imprisonment, with an enhanced penalty of up to three years imprisonment for claims involving the Congressional Medal of Honor (18 USC § 704(b) and (c)).
Alvarez was charged with violating the law by falsely claiming he had been awarded the Congressional Medal of Honor. He moved to dismiss the charge, claiming that the law was unconstitutional in that it criminalized speech protected by the First Amendment. He was convicted and sentenced to three years probation and 416 hours of community service and required to pay a $5,000 fine and a $100 special assessment. On appeal, a three-judge panel of the Ninth Circuit Court of Appeals, by a two to one vote, reversed Alvarez’s conviction holding the law unconstitutional (617 F. 3d 1198). The Appeals Court rejected the government’s argument that false statements are not constitutionally protected.
Whether the First Amendment protects lies about receiving military awards.
On June 28, 2012, the Supreme Court, in a six to three decision, found the law unconstitutional. Justice Kennedy, joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor, wrote the opinion for a plurality of the Court.. Justices Breyer and Kagan concurred. Justices Alito, Scalia, and Thomas dissented.
Plurality Opinion
The Stolen Valor Act seeks to restrict speech based on its content. Generally, it is unconstitutional to restrict speech based on its message, ideas, subject, or content. Because the law sought to restrict content it had to be analyzed under the “strict scrutiny” standard, which is the most rigorous First Amendment standard. To survive this standard, the government must show that the law is narrowly tailored and is the least restrictive means of meeting a compelling government need.
Historically, content-based restrictions on speech have been permitted only for a few categories of speech, such as incitement, obscenity, defamation, child pornography, fraud, true threats, and speech integral to criminal conduct. There is no “general exception to the First Amendment for false statements.” Many laws punish or criminalize false statements, but they traditionally criminalize false statements that cause some definite and identifiable harm. This was not the case with the Stolen Valor Act. “The statements do not seem to have been made to secure employment or financial benefits or privileges reserved for actual recipients of the medal.” False statements are not, solely because they are false, excluded from First Amendment protection.
The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain. . . . Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper would endorse government authority to compile a list of subjects about which false statements are punishable.
The First Amendment requires a showing of a direct causal link between the restriction imposed and the injury to be prevented, and the government had produced no evidence to show that criminalizing false claims such as those made by Alvarez was necessary to protect the public’s esteem for military honors. When the government seeks to regulate protected speech, it must use the “the least restrictive means among available, effective alternatives.”
Dissenting Opinion
Justice Alito, joined by Justices Scalia and Thomas, dissented, voting to uphold the law. While recognizing that false statements may be protected when laws restricting them might chill otherwise protected speech, “lies about military awards have no value in and of themselves, and proscribing them does not chill valuable speech.” The lies proscribed by the Stolen Valor Act inflict substantial harm. In many instances, the harm is tangible in nature: Individuals often falsely represent themselves as award recipients in order to obtain financial or other material rewards, such as lucrative contracts and government benefits.
According to Justice Alito: “By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law.”