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Court rejects Stolen Valor, suggests rewrite

Jun. 28, 2012 - 08:05PM   |   Last Updated: Jun. 28, 2012 - 08:05PM  |  
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Supreme Court strikes down Stolen Valor (June 28)

Military fakers scored a major victory at the U.S. Supreme Court when the justices struck down the Stolen Valor Act, the 2006 law that made it a federal crime to lie about receiving military medals.

The court's 6-3 majority ruled June 28 that the broadly written law making false claims of military honors illegal under any circumstances violated the First Amendment right to free speech.

Nevertheless, all of the justices acknowledged the legitimate intent of the law to protect the integrity of honors bestowed on war heroes. Two justices suggested Congress could rewrite the law in a more narrow form, prompting lawmakers on Capitol Hill to immediately call for replacing the now-defunct law.

"I see the Supreme Court saying, ‘We see your point. Give us a law we can uphold, and we will uphold it'," said Doug Sterner, the curator of the Military Times Hall of Valor, the largest public database of military honors.

The liar at the center of the case is Xavier Alvarez, 53, who has no military experience. In 2007, Alvarez was running for a seat on a district water board in California when he claimed he'd served in the Marines and been awarded the Medal of Honor. Alvarez was convicted in federal court and sentenced to three years' probation.

Everyone agrees that Alvarez was a serial liar; his claims also included playing pro hockey and assisting in the rescue of the U.S. ambassador during the 1979 Iran hostage crisis. But his lawyers say those lies are not a crime, and the court's majority agreed.

Justice Anthony Kennedy wrote that Alvarez's lies "were but a pathetic attempt to gain respect that eluded him." However, "permitting the Government to decree this speech to be a criminal offense would endorse government authority to compile a list of subjects about which false statements are punishable," Kennedy wrote.

The law's intent to discourage military fakers and protect the integrity of military honors is important, wrote Kennedy, who was appointed by President Ronald Reagan and served in the California Army National Guard.

But "laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought," including "the sometimes inconvenient principles of the First Amendment," Kennedy said in his opinion, which was signed by three other justices.

The dissenters

The decision to strike down the law was opposed by several of the court's most conservative justices: Antonin Scalia, Clarence Thomas and Samuel Alito. Alito compared the Stolen Valor Act to trademark laws that prohibit counterfeit goods.

"Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country's top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags," wrote Alito, a former Army Reserve captain appointed by President George W. Bush, in the dissenting opinion signed by the three justices.

Two of the nine justices argued for a sort of middle ground in a concurring opinion, saying the 2006 law as written is unconstitutional, but the First Amendment might allow for punishing lies about military medals in some circumstances.

"We must therefore ask whether it is possible substantially to achieve the Government's objective in less burdensome ways. In my view, the answer to this question is yes," wrote Justice Stephen Breyer, who was appointed by President Bill Clinton and left the Army as a corporal.

One way to help preserve the integrity of military honors would be to create an easily accessible public database of honor recipients, which would allow people to verify suspicious claims.

"More accurate information will normally counteract the lie." Breyer wrote. "And 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."

A new version of the law might help, too. The 2006 law was written too broadly and could apply to contexts such as "bar stool braggadocio … where lies will often cause little harm," Breyer wrote.

Congress could go back and write a "similar but more finely tailored statute" that could criminalize false statements in cases where they cause specific harm or amount to some form of fraud, Breyer wrote.

Stolen Valor 2.0

On Capitol Hill, that process is already underway. Rep. Joe Heck, R-Nev., has been pushing a revised version of the law for months, and he said the recent decision adds new urgency to the effort.

"Now that the Supreme Court has laid down this marker, I will be pushing for a vote on a version of the Stolen Valor Act that will pass constitutional scrutiny," Heck said in a statement issued hours after the court's decision.

That would likely face little resistance from the court, said Tejinder Singh, a Supreme Court attorney with the Goldstein and Russell law firm in Washington, D.C.

"It is a slam dunk, almost," Singh said. "The court was aware of the effort to rewrite the statute, and I think they were encouraging Congress to do that."

Aaron Caplan, a law professor at Loyola Law School in Los Angeles, said, "Congress could pass a law that said false claims about military honors as part of a scheme to defraud are a crime. Congress could go ahead and pass that, and I think everyone would agree that it constitutional."

That might make sentences more severe for people convicted of fraud. But it would not criminalize plain lies like the ones Alvarez told, he said.

"That is just somebody being a blowhard," Caplan said. "It's not a crime."

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