Supreme Court to decide free speech challenge to military medals law

Opinion,Ken Klukowski

Does the First Amendment prevent the federal government from throwing you in jail if you falsely claim to have received military honors? The Supreme Court will decide this issue in coming months.

The Stolen Valor Act of 2005 makes it a federal crime to claim falsely to have received a military medal. The false claim must be intentional (and if you honestly believe you were decorated but never served in the military, then you obviously have other problems), but does not need to result in fraud or your clearly benefiting from your lying.

Xavier Alvarez is a California politician who claimed at a public event to have received the Medal of Honor as a U.S. Marine. In fact, he never served in uniform. He was convicted in federal court. The U.S. Court of Appeals for the 9th Circuit reversed, striking down the Stolen Valor Act for violating the First Amendment.

No one denies that Alvarez is being penalized for speech. The question for the justices is whether the Free Speech Clause allows Congress to go after this kind of speech. Specifically, the court is considering whether (1), the speech is protected at all, and (2) if it is, is this law narrowly enough written and serves an important enough public interest that the Constitution allows this burden on speech.

Justice Antonin Scalia insisted, "There is no First Amendment value in falsehood." Justice Anthony Kennedy -- possibly the swing vote here -- indicated he disagrees that no false statements are protected.

But Scalia also asserted, "When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the Armed Forces were receiving was being demeaned and diminished by charlatans."

Kennedy agreed. Then he tipped his hand on how the government could win this case, saying that he could accept that a military medal is similar to a trademark -- a logo or symbol in which the maker has a vested interest that is protected by law against unauthorized use by others.

Alvarez's lawyer was a public defender who made a series of serious tactical errors during argument before the justices.

One of those was conceding that no truthful speech was being chilled by this law. That led Justice Elena Kagan, who is expected to be sympathetic to defendants in such cases, to say, "So, boy, I mean, that's a big concession." In other words, what were you thinking?

When the lawyer tried insisting that his client received no benefit from his public lies, Chief Justice John Roberts pointed out the obvious by asking, "Doesn't it help a politician to have a congressional Medal of Honor?"

There were some lighthearted moments during argument. At one point, Justice Sonia Sotomayor -- who is divorced -- said, "I take offense when someone I'm dating makes a claim that's not true." Solicitor General Donald Verrilli, defending the statute, replied, "As the father of a 20-year-old daughter, so do I."

This argument was also a reminder of the leftward tilt in the national media. Some of the journalists covering the Supreme Court are lawyers, with whom I sometimes talk through the arguments while waiting for the court marshal to gavel the court to order.

Some of my colleagues were surprised that I didn't share their confidence that this case was a slam-dunk that the Court would surely strike down the Stolen Valor Act. The D.C.-elite mentality almost didn't consider it worthy of discussion as to whether Congress could pass this measure to protect the integrity of our system honoring American heroes. By the end of oral argument, they sheepishly admitted the Court might uphold the Act.

Examiner legal contributor Ken Klukowski is on faculty at Liberty University School of Law and a fellow at the Family Research Council and American Civil Rights Union.

Examiner legal contributor Ken Klukowski is on faculty at Liberty University School of Law and a fellow at the Family Research Council and American Civil Rights Union.

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