Supreme Court sets date for Stolen Valor arguments

January 19th, 2012 by MOTHAX

This came out about a week ago, and I realized last night I never actually covered it, but the date will be February 22. Already made my travel arrangements and got my media credentials from the Supreme Court, although I think I may get there early and sit in the public seating, which isn’t hidden behind a curtain that blocks your view of the Justices. If anyone is in the DC area and wants to come with, you can meet me at like 4 am on the Supreme Court steps. I’ll even bring the coffee.

Nonetheless, United States v. Alvarez will finally decide whether lying about receipt of military medals you haven’t actually earned is a Constitutional right. ScotusBlog laid out the case in plain English:

In [Alvarez], the Court will consider the constitutionality of the statute that wins the award for best name of the month: the Stolen Valor Act, which makes it a crime to lie about having received military honors. The respondent in this case, Xavier Alvarez, was elected to the board of his local water district in southern California. He was charged with violating the Act after he falsely told the audience at a meeting that he had been awarded the Congressional Medal of Honor. To defend himself, Alvarez sought to have the charges dismissed on the ground that the Act was unconstitutional because it violated his right to free speech. When the district court rejected that argument, Alvarez pleaded guilty but reserved the right to challenge the constitutionality of the Act on appeal. Alvarez found a friendlier audience in the Ninth Circuit, which reversed his conviction. After the full court of appeals declined to re-hear the case, the United States sought Supreme Court review.
In its petition for certiorari, the government began by emphasizing that the Act plays an important role in protecting the integrity of the military honors system: if people can lie about receiving awards without any penalty, it will cheapen the value of the awards for the soldiers who actually did earn them. Moreover, the government argued, the Act is constitutional: it is exactly the kind of false factual statement that, under the Supreme Court’s precedents, should receive only limited First Amendment protection.

You can read all the filings in this case at ScotusBlog, but I wanted to point out various points from Friend of the Court briefs submitted by The American Legion and others who support the law.

Professor Eugene Volokh of UCLA (who writes the Volokh Conspiracy blog dealing with legal issues) submitted a brief that provides the quick answer to how the court could uphold the act:

Consistent with this Court’s repeated observation that “there is no constitutional value in false statements of fact,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), various state and federal laws restrict a wide range of knowingly false statements, and not just the familiar categories of defamation, fraudulent solicitation of money, and perjury. Most of these laws are broadly accepted as constitutional, and we expect that this Court will believe that the laws should indeed be upheld.
The best way to do so would be for this Court to (1) treat knowing falsehoods as a categorical exception to First Amendment protection, while (2) recognizing some limitations to this rule (for instance, with regard to statements about the government, science, and history) in order to avoid an undue chilling effect on true factual statements, statements of opinion, or other constitutionally valuable expression. Recognizing such a general First Amendment exception for knowing falsehoods will avoid a prolife-ration of First Amendment exceptions, and of cases upholding content-based speech restrictions under strict scrutiny—developments that would threaten the coherence of free speech doctrine and dangerously dilute the protection currently provided to valuable speech by the strict scrutiny test.

The American Legion’s amicus looked more at the historical context of laws like the Stolen Valor Act that sought to protect the integrity of the medals:

None other than George Washington warned: “Should any who are not entitled to the honors, have the insolence to assume the badges of them, they shall be severely punished.” General Orders of George Washington Issued at Newburgh on the Hudson 1782-1783.

Washington’s injunction has been enshrined in law and custom for centuries. Beginning in the nineteenth century, Congress enacted a series of statutes setting forth detailed criteria for military decorations, prohibiting the fraudulent wearing of decorations, and limiting their sale. The Stolen Valor Act is only the most recent congressional effort to preserve the integrity of military decorations by combating fraudulent claims to them. This deep and rich history counsels against clothing false claims of military honors with constitutional protection.

Regulating these lies poses no threat to constitutional values—such as freedom of the press, political speech, religious speech, or the advocacy of ideas. Rather, the Stolen Valor Act targets a specific untruth that is easy to identify and that disserves the interests of all Americans. False claims to valor have warped historical accounts of America’s military endeavors, diluted the honor due to true military heroes, and caused untold pain to service members, veterans, and their families. The Stolen Valor Act is a necessary tool to preserve vital military honors and ensure that America’s true heroes receive the quiet recognition to which they are entitled.

Now, I have literally read everything on Stolen Valor. Every case that is active, every legal brief, every moron on the net claiming he is special forces while showing pictures of him with a paintgun etc…. The one thing I hadn’t seen until recently was a case that the VFW used in their brief, which I thought was excellent, and am grateful they brought it up:

At its core, this case is about theft, not lying in general. It is undisputed that the First Amendment does not protect people who falsely claim to have received military awards in order to fraudulently receive tangible or pecuniary benefits such as tax breaks, increased government benefits, or veterans’ preferences or set-asides.

This Court likewise should conclude that the First Amendment does not protect those who wrongly appropriate for themselves the intangible, nonpecuniary advantages and “acclaim,” Pet App. 23a, that flow from the goodwill associated with military awards they have not earned...

[T]he First Amendment unambiguously permits the Government to prevent third parties from wrongfully attempting to claim for themselves, or potentially benefit in any way from, the goodwill associated with military awards, because the Government created them, endowed them with meaning, and has issued them selectively over the course of centuries in accordance with exacting requirements, and the members of the Armed Forces have consecrated such awards through their courage, dedication, and sacrifice. San Francisco Arts & Athletics, Inc. v. U.S.Olympic Comm., 483 U.S. 522, 533 (1987). Section B demonstrates that the Government’s interest in preventing third parties from wrongfully appropriating the goodwill associated with military awards is distinct from its asserted interest in preserving their value or meaning, which this Court has questioned in other contexts.

I like this argument mostly because it is the same one I have been making, although I was unaware of the Olympic Comm. case. (I don’t actually have legal research tools like Westlaw since I graduated.) I’ve argued repeatedly, including in emails with Professor Volokh that there is an actual concrete harm that comes to those of us who did earn these medals. Although not the most prestigious award out there, my Combat Infantryman’s Badge is very important to me, in fact, when I got married last year the groom’s cake was a CIB. And it’s also one that apparently every phony hero has earned. Even the lower level guys that are smart enough to not claim an award you can find online (like the MOH or Silver Star) they always go with my blue badge of manliness. None of the guys I come across with phony heroics ever claims to have been a dentist suddenly caught in a firefight. They’re all SEALS, Rangers, SF or Infantry. And every time one of these jackwagons puts the CIB on, it devalues mine accordingly.

So what is the likely result? Most court watchers (myself included) seem to think that this case will go against us, likely 6-3 or 7-2. On the other hand, 100% of ESPN analysts were certain that the Steelers would pulverize Tebow, and he managed to pull off his 3:16 miracle. (Against the Patriots I think it was Lamentations 3:16 – “He has broken my teeth with gravel; He has made me cower in the dust.”) Anyway, that is why they actually play the game, and the reason I won’t give up hope until after the opinion comes out. The court could go a number of ways:

1) They could decide that easily verifiable lies dealing with an interest like military medals are not to be afforded constitutional protection.

2) They could decide that some lies are covered, but in this case the Gov’t has a compelling interest in preserving military medals, under the Constitutional authority to raise armies and to set their rules.

3) They could decide that the law should have an imputed fraud element. (i.e. You can lie about being an MOH recipient in a bar or something, but if you try to acquire something tangible or intangible than that would be violative.)

4) Lastly, they could go the way folks seem to think they will and say that the Stolen Valor Amendment has an overbreadth problem, and suggest that Congress rewrite the statute with the fraud element actually in place. Technically they wouldn’t actually suggest that, but it would be clear. If this last happens, luckily there is already a bill in the works.

Either way, it’s why they go through the efforts, because no one knows for sure. But on February 22^nd we’ll have a better idea of how they might go based on what questions they ask.

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