The Stolen Valor Act of 2005, a compound of political pandering and moral exhibitionism, was whooped through the Senate, aka the “world’s greatest deliberative body,” by unanimous consent; the House, joining the stampede, passed it by a voice vote. So Xavier Alvarez now hopes the Supreme Court will save him from punishment for lying. And his is not the only case arising from government supervising speech that is demonstrably, or arguably, inaccurate.
The Stolen Valor Act allows fines and imprisonment for anyone who falsely claims to have been awarded any military decoration or medal authorized by Congress, with the severest sentences for claiming the highest honors. Alvarez, having won a seat on a California water district board of directors, introduced himself to other members by saying: “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.” All this was rubbish.
Leaving aside the question of how exactly Alvarez’s shabby behavior stole any hero’s valor, the constitutional question remains: Is the Stolen Valor Act compatible with the First Amendment, which the Supreme Court has held does not protect only truthful speech? The 9th Circuit Court of Appeals says no. And the Supreme Court has held that “constitutional protection does not turn upon the truth, popularity or social utility of the ideas and beliefs which are offered.”
Given that some false statements are constitutionally protected, which kinds are not? Defamatory statements are not, if they are made with a culpable state of mind and if they injure another person. When Justice Elena Kagan was a law professor, she noted “the near absolute protection given to false but nondefamatory statements of fact outside the commercial realm.” But Alvarez defamed no one, and it is unclear how his fabrications about himself caused America’s armed forces reputational harm. Furthermore, his lies did not fit any of the other four traditional categories of unprotected speech — obscenity, fraud, incitement, and speech integral to criminal conduct.