United Liberty

Somewhat lost in the fray over the disappointing ObamaCare decision was the Supreme Court’s ruling on the Stolen Valor Act, a law passed in 2006 that made it a crime for anyone to lie about receiving a medal or decoration.

But in a 6 to 3 decision on released on Thursday, the Supreme Court struck down the law on First Amendment grounds:

In United States v. Alvarez, No. 11-210, a highly anticipated First Amendment case, the Court held six to three that the Stolen Valor Act is unconstitutional. The Stolen Valor Act, 18 U.S.C. § 704, makes it a federal crime to lie about having received a military decoration or medal, punishable by up to a year in prison if the offense involved the military’s highest honors. The key issue in this case is whether knowingly false statements of fact – made without any apparent intent to defraud – are a protected form of speech, and if so, what level of protection they deserve.

Justice Kennedy announced a plurality opinion – joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor – and concluding that the Stolen Valor Act infringes on protected speech. The plurality reasoned that, with only narrow exceptions, content-based restrictions on speech face strict scrutiny, and are therefore almost always unconstitutional. False statements of fact do not fall within one of these exceptions, and so the Stolen Valor Act can survive strict scrutiny only if it is narrowly tailored to a compelling government interest. The Court concluded that the Stolen Valor Act is unconstitutional because the Government had not shown that the statute is necessary to protect the integrity of the system of military honors – the interest the Government had identified in support of the Act.

Justice Breyer, joined by Justice Kagan, concurred separately, concluding that the Stolen Valor Act, as drafted, violates intermediate scrutiny. These Justices argued that intermediate scrutiny is the appropriate standard because the Government should have some ability to regulate false statements of fact. However, because the statute, as drafted, applies even in family, social, or other private contexts where lies will often cause little harm; it includes few other limits on its scope, and it creates too significant a burden on protected speech. The concurring Justices believe that the Government could achieve its goals in a less burdensome way, and so they too held the Stolen Valor Act unconstitutional.  This opinion leaves open the possibility that Congress will re-write the law more narrowly. Three Justices, led by Justice Alito, dissented.

What Congress could do is re-write the law to penalize acts of actual fraud. For example, if someone lied about receiving some decoration or medal with the intent to personally gain, that would be an area where Congress could act. With that said, there are already laws against fraud on the books, so this would be over-criminalization more than anything else.

These sorts of laws really don’t really serve a purpose other than playing to public sentiment about the military. And while our men and women in uniform deserve thanks for the job they do, it seems pointless to pursue laws that are rather pointless.

If Congress really wanted to thank them, why not just bring them home instead?