The Stolen Valor Act and False Speech

Summary

A federal court of appeals in California recently refused to hear an appeal to the case U.S.A. v. Alvarez, which held that the Stolen Valor Act was an unconstitutional violation of the First Amendment. The Act was a piece of legislation, passed in 2006, that made lying about receiving military medals a federal offense. It was ruled unconstitutional by the Ninth Circuit Court of Appeals in 2010 (the appeal court that covers most Western states), and the Ninth Circuit affirmed that decision again in March. Questions about the Act’s constitutionality are being heard in appeals in Virginia and Colorado as well. Does the Stolen Valor Act violate the First Amendment?

Resources

Questions

1. The Stolen Valor Act says:

“Whoever 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, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.”

How would you put this law in your own words?

2. What did Xavier Alvarez do? Why did he go to court?

3. Why did the Ninth Circuit refuse to hear the appeal? What were the First Amendment arguments?

4. In the original ruling, the majority stated:

“The Act, as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact—without anything more.
The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech.”

Why is the Court concerned about criminalization of speech based on its content?

5. The seven dissenting judges argued that because the Stolen Valor Act’s limitation on speech is so narrowly defined, it was a constitutional limitation of speech. The opinion, written by Jay O’Scannlain, quoted Gertz v. Welch (1974), saying, “…there is no constitutional value in false statements of fact.” Laws provide for prosecuting individuals who commit libel, defamation, or fraud, though the standards for proving each of these vary. Should the First Amendment protect claims of false facts? Why or why not?

6. Because the Stolen Valor Act is in question in several courts, some speculate that this case will reach the Supreme Court. If this happens, how should the Supreme Court rule?

Extension

In these excerpts from a quote in the concurring majority opinion by Chief Judge Alex Kozinski, the Court draws our attention to the prevalence of lies in society. Why do you think Judge Kozinski lists these in his opinion? Do you agree with the point he is trying to make?

We lie to protect our privacy (“No, I don’t live around here”);
to avoid hurt feelings (“Friday is my study night”);
to make others feel better (“Gee you’ve gotten skinny”);

to avoid recriminations (“I only lost $10 at poker”);
to prevent grief (“The doc says you’re getting better”);


to communicate displeasure (“There’s nothing wrong”);
to get someone off your back (“I’ll call you about lunch”);
to escape a nudnik (“My mother’s on the other line”);
to namedrop (“We go way back”);
to set up a surprise party (“I need help moving the piano”);
to buy time (“I’m on my way”);

to duck an obligation (“I’ve got a headache”);
to make a point (“Ich bin ein Berliner”);

to humor (“Correct as usual, King Friday”);
to avoid embarrassment (“That wasn’t me”);


or to maintain innocence (“There are eight tiny reindeer on the rooftop”).