Stolen Valor Case in High Court|Tests Limits of First Amendment

"The honor system is about identifying the attributes, the essence, of what we want in our service men and women - courage, sacrifice, love of country, willingness to put your life on the line for your comrades," he said. "And what the medals do is say to, to our military, 'this is what we care about.' It's what George Washington said in 1782 when he set up the honor system. It's designed to cherish - it's designed to cherish a valorous ambition in soldiers and to encourage every species of military merit. And what I think with respect to the government's interest here, and why there is a harm to that interest, is that the point of these medals is that it's a big deal. You get one for doing something very important after a lot of scrutiny. And for the government to say this is a really big deal, and then to stand idly by when one charlatan after another makes a false claim to have won the medal, does debase the value of the medal in the eyes of the soldiers. It does do that. That is the government's interest. We think that is a real and substantial interest, and it's threatened here."

Chief Justice John Roberts pointed out, however, there are all manner of lies and falsehoods in which the government may have an interest but does not regulate.

"Well, where do you stop," Roberts asked. "I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have a high school diploma if you know that you don't. That's something you can check pretty easily. And Congress can say: We want people to finish high school. It's a big thing to have a high school diploma. So we want to make sure nobody goes around saying they do when they don't."

Alvarez's attorney, Deputy Federal Public Defender Jonathan Libby, said that the Stolen Valor Act simply makes a certain kind of speech illegal.

"The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie," he said. "It doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member. And the law punishes false claims to a military award regardless of whether harm results or even is likely to result in an individual case."

Justice Samuel Alito questioned whether there is First Amendment value "in a bald-faced lie about a purely factual statement that a person makes about himself."

"Gee, I won the Medal of Honor," Alito said. "I was a Rhodes scholar, I won the Nobel Prize. There's a personal - the First Amendment protects that?"

"Yes, your Honor, so long as it doesn't cause imminent harm to another person or imminent harm to a government function," Libby said.

"All speech is presumptively protected unless we go back and it fits into one of the historical categories of speech that this court has found historically is unprotected," Libby added. "And there falsity certainly has never previously been recognized by this court as being an unprotected category of speech."

One of those "historical categories" is speech that causes intentional infliction of emotional distress.

Justice Sotomayor asked why the Stolen Valor Act did not fit there.

"So why isn't the outrage that medal winners - legitimately entitled medal winners - experience in seeing fake people, hearing fake people claim a medal, why isn't that comparable," she asked.

Libby said there is a difference between being upset and being harmed. "The fact that there is a certain level of upset doesn't mean that you're harmed in the sense of, of the intentional infliction of emotional stress tort," Libby said. "And so what we're dealing with here is simply a noninstantaneous harm."

The justices also contemplated the "slippery slope problem."

"The trouble is you can think of 10,000 instances that meet your criteria that one candidate or another could bring up in a political campaign," Justice Stephen Breyer said.

"And then if this is lawful and constitutional, then you have people in political campaigns suddenly worrying that the U.S. attorney is going to come in and start indicting him," he added. "That's part of the chilling effect."

Sotomayor picked up the dating analogy again. "You're asking us to say, you know, the guy who says he's a college graduate in a political campaign, that could chill political speech," Sotomayor said. "So in that lie, in that context, you can't sanction. But you can sanction that lie in a different context - on a date. I don't know, because on a date, it doesn't chill political speech, and it will induce a young woman to date someone who she thinks is more of a professional, because that harms the parents, it harms the family."

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