This case involves the constitutionality of the “Stolen Valor Act,” 18 U.S.C. 704(b), the federal law that makes it a crime to falsely claim that one has been awarded military honors.
As a newly-elected member to the local Water District Board, Xavier Alvarez, introduced himself to the Board as a former Marine who had won the Congressional Medal of Honor. Alvarez never served in the armed forces, never was a Marine, and did not receive the Congressional Medal of Honor.
The federal Stolen Valor Act provides:
Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.
The defendant concededly violated the law. The only issue is whether the law violates the First Amendment. In the case of United States v. Alvarez, 617 F.3d 1198 (2010), the Ninth Circuit Court of Appeals ruled that the law is unconstitutional. Using standard First Amendment analysis, the Court found that the law is content-based; that the speech being regulated does not fall within any historically recognized category of unprotected speech like defamation or fraud; and that, applying strict scrutiny, the law is not the least restrictive means of protecting a compelling governmental interest.
The principal case relied upon by the Circuit Court was United States v. Stevens, 130 S.Ct. 1577 (2010), in which the Court struck down a federal law prohibiting the sale of depictions of cruelty to animals as applied to an individual who sold dogfighting videos. The Court ruled that only categories of speech that have been “historically unprotected” should be treated as being outside the protection of the First Amendment. Since depictions of cruelty to animals were not “historically unprotected,” the law was subject to strict scrutiny, and was struck down. The Court of Appeals followed the same reasoning in this case.
The Court of Appeals held:
In sum, honoring and motivating our troops are doubtless important governmental interests, but we fail to see how the Act is necessary to achieving either aim. Accordingly, we hold that the Act is not narrowly tailored to achieve a compelling governmental interest. As presently drafted, the Act is facially invalid under the First Amendment, and was unconstitutionally applied to make a criminal out of a man who was proven to be nothing more than a liar, without more.
In tomorrow's post I will describe what happened during oral argument in the Supreme Court.