Military Medals Lies Spur High Court Debate Over Free Speech

February 23, 2012, 9:57 AM EST

By Laurie Asseo and Greg Stohr

(Updates with lawyers’ arguments starting in eighth paragraph.)

Feb. 22 (Bloomberg) -- U.S. Supreme Court justices grappled with whether Congress can make it a crime to falsely claim having been awarded a military medal, in a case testing the reach of the Constitution’s free-speech protection.

Hearing arguments today on the Stolen Valor Act, the justices discussed wartime bravery, high school diplomas and lies people tell on dates. The law punishes people with as much as a year in prison for lying about receiving a medal. A federal appeals court said the law violated the Constitution’s free- speech protection, and President Barack Obama’s administration is appealing.

A false claim of receiving military honors “does diminish the medal in many respects,” Justice Anthony Kennedy said during the hour-long argument in Washington. Still, he and other justices suggested that upholding the law might broaden the kinds of lies the government could sanction, beyond matters like perjury and false statements to a federal agent.

“Where do you stop?” asked Chief Justice John Roberts. He asked how the stolen-valor law would differ from making it a crime to claim falsely to have earned a high school diploma, a matter that can be verified just as easily.

“What is the First Amendment value in a lie?” Roberts said later in the argument session.

‘Big Deal’

The case involves Xavier Alvarez, one of the first people charged under the 2005 law. That year, he was serving as an elected member of the local water board in Pomona, California, when he said at a board meeting that he served 25 years in the Marines and was awarded the Congressional Medal of Honor. In truth, he had never served in the military.

Prosecutors have filed charges under the Stolen Valor Act in 45 cases since the law was enacted, Alvarez said in court papers.

“The point of these medals is that it’s a big deal,” U.S. Solicitor General Donald Verrilli argued in support of the law. For the government to “stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers.”

Even though people are “entitled to be upset by these false claims,” Alvarez didn’t harm anyone and was quickly exposed as a liar, countered his lawyer, Jonathan Libby, deputy federal public defender in Los Angeles. Alvarez’s statements were not the same as an intentional infliction of emotional distress, which could be sanctioned, his lawyer said.

Legitimate Speech

Justice Sonia Sotomayor questioned Verrilli on what sort of harm the law is trying to stop.

“I too take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true,” Sotomayor said.

Conversely, Justice Elena Kagan asked Libby what kind of legitimate speech would be discouraged by the stolen-valor law.

“It’s not that it may necessarily chill any truthful speech,” Libby said, adding that people know whether they’ve won a military honor.

Since 1923, federal law has prohibited wearing a military medal without authorization. Kennedy and Justice Ruth Bader Ginsburg asked how that differed from the speech prohibited by the Stolen Valor Act, and they expressed skepticism when Libby said the 1923 law involved conduct rather than speech.

False Information

“There is real harm” in falsely claiming military honors “and yet I can think of instances where we do want to protect false information,” said Justice Stephen Breyer.

Justice Antonin Scalia suggested giving a “medal of shame” to people who falsely claim to have been honored for valor. Roberts said that too would be barred under Libby’s argument because it would be a government sanction for speech.

Alvarez was indicted for violating the Stolen Valor Act and pleaded guilty, while reserving his right to appeal on First Amendment grounds. Alvarez was sentenced to three years of probation, a $5,000 fine and 416 hours of community service. A divided federal appeals court in San Francisco threw out the guilty plea.

The case is United States v. Alvarez, 11-210.

--Editors: Justin Blum, Joe Sobczyk

To contact the reporters on this story: Laurie Asseo in Washington at lasseo1@bloomberg.net; Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net

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Military Medals Lies Spur High Court Debate Over Free Speech