(CN) – A man who lied about receiving the Medal of Honor should not face criminal liability, the Supreme Court ruled Thursday.
“Lying was his habit,” the court’s lead opinion opens. “Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005.”
Alvarez had told colleagues on a water district board in Los Angeles that he had been awarded the Medal of Honor in 1987 after 25 years of service with the Marines.
He also claimed to have rescued the American ambassador during the Iranian hostage crisis, and said he had been shot in the back as he returned to the Embassy to save the American flag.
After pleaded guilty to violating the Stolen Valor Act, a federal judge ordered him to pay $5,000, serve three years of probation and do community service.
But a split panel of the 9th Circuit concluded in August 2010 that the Stolen Valor Act could not criminalize speech. The full court denied an en banc hearing of that case in March 2011, with Chief Judge Alex Kozinski writing, “Saints may always tell the truth, but for mortals living means lying.”
After the Supreme Court agreed to take over, a divided panel in the 10th Circuit upheld the law against a man who misrepresented himself as an Iraqi War veteran with a Purple Heart and a Silver Star.
The justices compared the case at hand to one they decided last year involving the controversial Westboro Baptist Church. In that decision, the court held that the First Amendment protects hateful picketing at military funerals led by the church’s founder, Fred Phelps Sr.
Applying the same scrutiny for Alvarez, the court noted that “statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment.”
“By this measure, the statutory provisions under which respondent was convicted must be held invalid, and his conviction must be set aside,” Justice Anthony Kennedy wrote, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Holding otherwise could lead to Orwellian results, the decision states.
“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,” Kennedy wrote. “That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. Were this law to be sustained, there could be an endless list of subjects the national government or the states could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the government may restrict speech without affronting the First Amendment. But the Stolen Valor Act is not so limited in its reach. Were the court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”
Justices Stephen Breyer and Elena Kagan tipped the verdict for the plurarlity with a concurring opinion. They said there are less restrictive measures for the government to achieve its aim.
“An accurate, publicly available register of military awards, easily obtainable by political opponents, may well adequately protect the integrity of an award against those who would falsely claim to have earned it,” Breyer wrote. “And so it is likely that a more narrowly tailored statute combined with such information-disseminating devices will effectively serve Congress’ end.
“The government has provided no convincing explanation as to why a more finely tailored statute would not work. In my own view, such a statute could significantly reduce the threat of First Amendment harm while permitting the statute to achieve its important protective objective.”
The justices behind a 17-page dissent said such measures would not work.
“Because a sufficiently comprehensive database is not practicable, lies about military awards cannot be remedied by what the plurality calls ‘counterspeech,” Justice Samuel Alito wrote, joined by Justices Antonin Scalia and Clarence Thomas.
Increasing skepticism about the entire awards system would furthermore “exacerbate the harm that the Stolen Valor Act is meant to prevent,” Alito added.
“Only the bravest of the brave are awarded the Congressional Medal of Honor, but the court today holds that every American has a constitutional right to claim to have received this singular award,” the dissent states.
“By holding that the First Amendment … 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,” Alito wrote. “I would adhere to that principle and would thus uphold the constitutionality of this valuable law.”
Alito also took aim at the colorful hypothetical lies that opponents of the law have floated.
“If there is a problem with, let us say, a law making it a criminal offense to falsely claim to have been a high school valedictorian, the problem is not the suppression of speech but the misuse of the criminal law, which should be reserved for conduct that inflicts or threatens truly serious societal harm,” Alito wrote. “The objection to this hypothetical law would be the same as the objection to a law making it a crime to eat potato chips during the graduation ceremony at which the high school valedictorian is recognized. The safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional.”
The court did not touch upon a different 9th Circuit decision that uphelda provision of the Stolen Valor Act against dishonest actions. That case concerned the conviction of a man who wore a fraudulently obtained Purple Heart and received $180,000 in disability benefits.