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Stolen Valour and Free Speech

Stolen Valour and Free Speech

‘Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, the respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005, was how Justice Kennedy began the plurality’s opinion, and it colourfully informs the backdrop against which the case is set.

Justice Kennedy, describing the Congressional Medal of Honour, said:

It is right and proper that Congress, over a century ago, established an award so the Nation can hold in its highest respect and esteem those who, in the course of carrying out the “supreme and noble duty of contributing to the defense of the rights and honor of the nation.

The Court held that the Act was incompatible with the First Amendment. A majority, comprised of Justices Ginsburg, Kennedy, Roberts and Sotomayor, viewed the Act as infringing free speech. Justices Breyer and Kagan agreed with the result but not the reasoning for why the majority came to their conclusion; they viewed the Act as failing intermediate (or exacting) scrutiny and working disproportionate constitutional harm. Justice Alito authored a dissent which the conservative stalwarts of the court, Justice Scalia and Justice Thomas, supported.

There are two competing concerns: the freedom of speech and the esteem of soldiers who are recognised for bravery having their actions compromised by liars.

It is challenging, though not impossible, to think of a more emotive case in which the right to free speech is at issue; yet it has gone virtually unnoticed in the shadow of the announcement of the constitutionality of Obamacare. There are two competing concerns: the freedom of speech and the esteem of soldiers who are recognised for bravery having their actions compromised by liars.

Certiorari, the application for the Supreme Court of the United States to hear the case, was granted after the Ninth Circuit Court of Appeals held the federal law (the Stolen Valor Act 2005), which criminalised lying about having been awarded a Congressional Medal of Honour, invalid. The Court’s desire to hear the case strengthened when the 10th Circuit Court of Appeals upheld the law in United States v. Strandlof.

If some felt that the case was not of constitutional importance before the Court granted certiorari, it certainly was once there was uncertainty over the validity of the Act. Uncertainty between two, or more, circuits on the Court of Appeal is traditionally an indicator that the Supreme Court will grant certiorari.

In order to be held constitutionally valid, as a content based restriction, the Stolen Valor Act 2005 had to pass three obstacles. First, it had to pass intermediate scrutiny, showing that the law furthers an important government interest in a way that is substantially related to that interest. Second, it had to show that the law was the least restrictive method among available, effective alternatives. Finally, it had to show that there was a principle within the law that prevented the Government from, for example, criminalising all lies. Justice Kennedy refuted the Government’s position that the law was valid, with respect to the second obstacle, by referencing alternative methods to address the Respondent’s speech such as counter-speech and refutation. Justice Kennedy even mentioned that there had been sufficient ridicule of the actions of the Respondent Alvarez on the internet.

Justice Samuel Alito in dissent wrote ‘…the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest.’  Justice Alito alleges that there are at least four ways in which permitting the lie would inflict substantial harm. First, individuals who benefit from representing themselves as recipients of the Congressional Medal of Honor receive financial or other material benefits. This would be a form of fraud, and is not specifically proscribed by the Stolen Valor Act. Second, Justice Alito opines that allowing the lie debases the distinctive honour of military awards. Third, it is suggested that allowing the lie is a slap in the face of honest and true recipients of the Award. Fourth, Justice Alito suggests that allowing individuals to claim falsely that they have are a recipient of the Military Award makes it seem that it is more common than it actually is.

Justice Alito’s view in essence suggests that, by allowing Xavier Alvarez to claim that he is the recipient of the Congressional Medal of Honour, the honour of those who have been validly awarded the medal and the esteem of the medal itself is diminished or tarnished. This in Justice Alito’s view inflicts substantial harm.  Justice Kennedy noted a Government amici brief which addresses Justice Alito’s point on substantial harm, and offered a comment of his own:

‘Nothing that charlatans such as Xavier Alvarez can do to stain [the Medal winners’] honor…’ This general proposition is sound, even if true holders of the Medal might experience anger and frustration.

This appears to address the crux of Justice Alito’s argument regarding substantial harm. Xavier Alvarez’s actions should be criminally prohibited because he shouldn’t be able to lie about receiving a military honour, it offends veterans who have earned it, and because he did not earn it.

Xavier Alvarez’s claim is certainly tasteless, and one would question the motives of a man who chose to make the claim that he did, but did it truly rise to the level of substantial harm? The men and women who serve in the armed services do a truly thankless task, and they deal with issues more challenging than people lying. It would be disingenuous to say that lying about receiving a medal caused substantial harm to a soldier that had been awarded the medal, or to a soldier that had not been awarded the medal. At best it would be highly offensive but that does not meet the substantial harm standard.

Justice Alito’s dissent however raises an important issue. Those who have been awarded the Congressional Medal of Honour have put a higher purpose, the defence of their country,  before their own safety. Why should an individual, who has not acted in the same way, be able to lie and enjoy the social benefits as may be afforded to recipients of the medal? Should this consideration however be capable of restricting what another person may say?  That is a debate perhaps left for another time. It also raises a wider discussion about the value of lying. Is there a point where lying is acceptable? Or is lying always unacceptable? What makes some lies acceptable and others not? Is it a question of intent? Is it based on an internal judgement over the intrinsic value of the lie?

Is there a point where lying is acceptable? Or is lying always unacceptable?

Justice Alito opined:

It is true, as Justice Breyer notes, that many in our society either approve or condone certain discrete categories of false statements, including false statements made to prevent harm to innocent victims and so-called ‘white lies.’ But respondent’s false claim to have received the Medal of Honor did not fall into any of these categories. His lie did not ‘prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence.’ Nor did his lie ‘stop a panic or otherwise preserve calm in the face of danger’ or further philosophical or scientific debate. Respondent’s claim, like all those covered by the Stolen Valor Act, served no valid purpose.

The problem with approving or condoning certain false statements and not others is that, in effect, it comes down to each individual’s judgement over whether a lie serves a valid purpose. Who is to say what is a valid purpose? What about non military awards such as a university degree? Should someone be allowed to lie about receiving a university degree? Or should a false statement have to serve a higher purpose as those described by Justice Alito?

Justice Alito goes on to say:

The plurality apparently fears that we will see laws making it a crime to lie about civilian awards such as college degrees or certificates of achievement in the arts and sports. This concern is likely unfounded. With very good reason, military honors have traditionally been regarded as quite different from civilian awards. Nearly a century ago, Congress made it a crime to wear a military medal without authorization; we have no comparable tradition regarding such things as Super Bowl rings, Oscars, or Phi Beta Kappa keys.

Criminalising lies that do not result in fraud is a bold step. There are those who would consider the Court’s decision as a step towards approving lying, as a step away from punishing liars for disgusting behaviour and as a step to protecting the rights of those who, by their behaviour, should not be allowed to avail themselves of those rights. If freedom of speech is to remain as it is described, the freedom of speech, then it is important that restrictions on it are necessary and do more than prevent people from being offended – regardless of whether that offence is justified or not.

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