Hello, my name is Jessica. I will be stealing your valor. Well, I may not actually pilfer your valor, but thanks to the Supreme Court, I can if I so chose.
Much, if not all of the recent news coverage of the Supreme Court has
understandably focused on the Court's decision to uphold President
Obama's landmark healthcare law. Reporters and commentators have largely
failed to cover another decision that came out on the last day of the
In a 6-3 decision, the Court told us to say goodbye to the 2005
Stolen Valor Act. That Act made it a crime to falsely claim military
awards or decorations. The Court ruled that the Act is unconstitutional
because it contravenes the First Amendment. Thanks to the Supreme Court
disreputable men everywhere will have to search for a new pickup line
when barhopping by military bases.
This case began when a true lowlife, Xavier Alvarez, told people at a
meeting of the Three Valleys Municipal Water District governing board
in Los Angeles County that he was a Marine who received the Medal of
Honor. Seemingly the only honor Alvarez received was being a member of
the water district governing board.
Alvarez was prosecuted under the Stolen Valor Act and eventually pleaded guilty to violating it.
How does one defend this law? The federal government was in the
unenviable position of arguing to uphold the Act before the Court. The
government essentially argued that statements barred by the Act (lies
about receiving military medals and decorations) are false statements
that have no value and do not deserve First Amendment protection.
The Court did not buy that argument. Justice Kennedy, writing for the
majority, got it exactly right when he said the First Amendment
"protects the speech we detest as well as the speech we embrace."
Echoing George Orwell's fears in the revolutionary and terrifying novel
about totalitarianism, 1984, Kennedy mused that the allowing the government to prohibit speech because it is false would create a Ministry of Truth.
Kennedy's fears are well founded. The First Amendment protects not
just what we want to say and hear, but also disgusting, despicable
statements that we would rather people not say or hear. I am not
terribly worried that the government will prohibit popular speech
embraced by the majority of Americans. I am, however, concerned that the
government will see fit to bar speech with which it disagrees, or which
it simply finds to be vile and contemptible.
Members of the Supreme Court share that fear, and that is why they
are suspicious of laws that infringe on speech rights. This distrust of
government motives means that the Court applies a high level of scrutiny
to most restrictions on speech. Restrictions made on the basis of the
content of speech, like the Stolen Valor Act, are presumed invalid.
That is as it should be. Living in a country that prizes the protection
of speech, often regardless of how abhorrent that speech is, is not for
the faint of heart. Our legal tradition all but ensures that people can
say, and may have to listen to, speech which offends us to our core.
Difficult as this may be, it is no doubt preferable to living in a
country that tells us what can and cannot be said and heard.
The purpose of the Stolen Valor Act is to guard against the devaluation
of military honors. While that purpose is undoubtedly a noble one, the
solution is not to bar false speech about military medals and
decorations. Rather the solution is to foster a free marketplace of
ideas, which allows all of us to call people like Alvarez liars and to
have an open and robust exchange about military honors. Laws against
libel and fraud do tell us that not all lies are created equal, and some
may actually harm our ability to have an open and robust debate.
But Alvarez's lie was quickly and easily verifiable and has led to
widespread condemnation. It is far better for private citizens to use
their own speech rights to hold individuals accountable than it is for
the government to prevent people, even those like Alvarez, from
Luckily the Court agreed. The four members of the so-called liberal wing
of the Court, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia
Sotomayor and Elena Kagan, joined Kennedy's opinion. Kennedy also
persuaded Chief Justice John Roberts who, despite his decision in the
health care case, is nobody's liberal. Three members of the Court's
conservative faction, Justices Antonin Scalia, Clarence Thomas, and
Samuel Alito, dissented.
But despite the fact that the Court gathered more than a bare majority
to invalidate the law, advocates of the now-overturned law need not
despair. Breyer, joined by Kagan, concurred with the result, but wrote a
separate opinion signaling that Congress could write a more narrow law
that focuses on specific harms that result from lies about military
medals and honors.
Finish reading this post on the Huffington Post here.