Stolen Valor ruling a win for free speech, common sense

BY GUEST COLUMN | JULY 02, 2012 6:30 AM

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The Supreme Court decision in United States v. Alvarez is a victory for free speech and common sense.

The Supreme Court in a 6-to-3 vote struck down the Stolen Valor Act, which made it a crime to falsely claim military honors. The court concluded that the act violated the First Amendment by criminalizing lies without a showing of fraud or other criminal conduct.

"Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principal. Our Constitutional tradition stands against the idea that we need Oceania's Ministry of Truth," Justice Anthony Kennedy wrote in the plurality opinion.

That reference to George Orwell's novel 1984 is appropriate. The Stolen Valor Act would have given government the right to weigh the truth or falsity of someone's statement and prosecute the person even if no one had been defrauded and the liar had obtained no material benefits.

Xavier Alvarez, the defendant in the case, has quite a track record of lying. He once claimed to have played hockey for the Detroit Red Wings and to have married a starlet. But those paled in comparison with his biggest lie: claiming to have been awarded the Medal of Honor.

That's when he ran afoul of the Stolen Valor Act, which proponents claimed would uphold the honor of those who legitimately received the medal.

But the law ran afoul of the Constitution by requiring no more than an untruthful statement about military honors, regardless of setting, audience or whether the liar intended to defraud.

The Supreme Court reviewed the rare instances in which mere speech can lead to prosecution in this country. Content-based limits on free expression are tied to criminal fraud, perjury, incitement of violence, or defamation of others. Self-aggrandizement is not on the list.

"A public database of Medal of Honor winners would have much the same deterrent effect as this flawed law," Kennedy noted. People claiming honors they didn't earn could be quickly exposed, and liars would face the appropriate penalty: public humiliation.

If Congress wants to pursue punishment of false military claims, it need only redraft the law so that it includes a requirement of defrauding for personal gain. That allows prosecution of the con artist and not the barroom braggart.

As Kennedy points out, "Were this law to be sustained, there could be an endless list of subjects that national government or the states could single out."

The court refused to embrace the government's theory that lies, without more, could be criminalized. Today's decision keeps 1984 in the past and not the future.

Ken Paulson
First Amendment Center president

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