WASHINGTON — The Supreme Court on Thursday tossed out a 2006 law making it a federal misdemeanor to lie about receiving a military service medal, but left the door open for Congress to try again with a more finely tuned law.
In a 6-3 ruling, the court said the Stolen Valor Act violated First Amendment free-speech protections, ruling in favor of Xavier Alvarez, a California man prosecuted for false claims in 2007 that he had received the Medal of Honor.
Alvarez, a former member of the Three Valleys Municipal Water District Board, speaking at his first meeting as a board member, said: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”
His conviction was later thrown out by the federal Ninth Circuit Court, a decision the Supreme Court upheld Thursday. Under the invalidated law, the lie could have earned him a year in jail, while maximum sentences for lies about lesser medals were shorter.
Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan favored striking down the law. Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.
The law was too broad a limitation on speech and sought “to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain,” Kennedy wrote in the ruling.
Kennedy added that “enacting a similar but more finely tailored statute” could result in a law that both protects the dignity of true military medal recipients and passes the test of constitutionality.
A current bill in the House of Representatives aims to do just that. The Stolen Valor Act of 2011, introduced by Nevada Republican Joe Heck, makes it a crime to benefit from a lie about military service, rather than illegalizing certain kinds of lies.
An American Legion representative who investigates Stolen Valor cases said the replacement law should be able to move easily through Congress and give prosecutors the ability to target the worst offenders — “dirtbags,” he said, who brazenly seek to use lies about medals for nefarious gain.
“The Heck bill adds the fraud elements, saying essentially if a person benefitted materially from these lies, that would be punishable,” said Mark Seavey, an attorney and new media director for the American Legion.
Even under the invalidated law, he said, “the garden variety guys who just embellished a story were not the people who U.S. attorneys went after.”
Kennedy also suggested another route Congress could take to stamp out lies about service medals.
“There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system,” he wrote. “A Government-created database could list Congressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims.”
But the opinion noted that the Department of Defense has called such a step impractical, drawing the ire of another veteran’s group representative.
“Those who give the medal ought to keep track of who they give them to,” said Joe Davis, director of public affairs for the VFW Washington office. “But DOD has basically ceded the responsibility of tracking who has earned these medals to civilian entities.”
Davis said that while VFW supports free speech, “there has to be a line somewhere. Not too long ago, they also ruled that protesting at dead soldiers’ funerals is free speech.”
In a dissenting opinion, Alito wrote that harmful lies have never had full First Amendment protection, and that lies about military service shouldn’t either.
“By holding that the First Amendment ... shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest,” Alito wrote.
Though for now there’s no legal risk in telling lies about military service medals, dedicated people will continue to track down and expose offenders, Seavey said.
“It doesn’t change our day-to-day reality that were going to hunt these guys down and we’re going to out them,” he said. “The only difference is we don’t have the legal mechanism to punish these guys now.”