The Act the Supreme Court did strike down

June 29, 2012

In a decision handed down on June 28, the United States Supreme Court roused the passions of thousands of Americans, leading some to express outrage at the Court’s decision.  No, it’s not that decision.  It’s the Court’s ruling in U.S. v. Alvarez, 2012 WL 2427808.

That decision, much to the dismay of unif0rmed service members, veterans groups, and many others, struck down a statute known as the Stolen Valor Act (18 USCA 704), which made it a crime to falsely claim that one had earned a prestigious military honor.

In the case, Alvarez was convicted under the Stolen Valor Act of having lied about being a recipient of the Medal of Honor.  In fact, the court provides a none too flattering assessment of Alvarez:

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, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U.S.C. § 704.

2012 WL 2427808 at *4

Alvarez’s propensity for fibbing aside, the Court ultimately struck down the Act, as a violation of the First Amendment.  The court reasoned that it put an impermissible content-based restriction on speech.  Id. at *9-10.

While perhaps infuriating, it strikes me that this decision is consistent with previous Supreme Court precedent.  The case that immediately popped to my mind is the case of R.A.V. v. City of St. Paul, 505 U.S. 377, where the court struck down an ordinance in the City of St. Paul prohibiting bias-motivated disorderly conduct including, among other things, cross burning.  Striking down the ordinance as unconstitutional because it discriminated against speech on the basis of not only content, but also viewpoint, the Court reinforced the long-standing principle that even offensive speech cannot be discriminated against.  This principle extends into the Alvarez ruling.

The following search shows that, even when looking just at the Supreme Court, there is a long history of cases striking down restrictions on speech because the subject matter is derogatory or offensive:

Search: restrict! impair! infring! constrain! prohibit! limit! /s offensive derogatory /s speech (19 Docs)
Content:  Supreme Court Cases (SCT on Westlaw.com)

Veterans’ groups are understandably upset.  A quick search through the news sources on Westlaw or WestlawNext using the following query yields a number of results detailing the reactions among veterans to the ruling.

Search: veteran /p supreme court & “stolen valor” & da(aft 06/27/2012)

Even with this Act being struck down, it seems likely that veterans will continue to be vocal in defending the honor they earned in their service, and in calling out those who seek to coattail on that honor.  And rightly so.