In 2010, the Ninth Circuit overturned the conviction of Xavier Alvarez under the Stolen Valor Act of 2005, finding that the Act, which made it a Federal crime to lie about having earned any U.S. Armed Forces medal, violated the First Amendment. Alvarez was prosecuted after giving an address before a local government board he had been appointed to, during which he claimed to have won the Congressional Medal of Honor (interestingly, the FBI’s interest in Alvarez began with a woman’s tip that he had lied to her about being a Medal of Honor winner; the decision notes also that Alvarez also claimed, inter alia, to have played for the Detroit Red Wings). The court rejected the government’s arguments that the Act fell within the historical exceptions to protected speech such as fraud, obscenity, and fighting words.
DOJ has now asked the Supreme Court to take up the constitutionality of the Stolen Valor Act. I think I agree with Garrett Epps at the Atlantic that “It’s hard to imagine this Court hesitating to shove this idiotic law out the door.” Or, at least, to strike down so much of the law as goes beyond what already constitutes fraud – it looks like many of those prosecuted under the Act (remember the pathetic Jesse Macbeth?) were stealing more than valor, bilking the VA for example. If false speech doesn’t already fall outside of First Amendment protection, such as lying on your tax return or committing perjury, why should the courts carve out a new exception with no basis in history or in the Constitution? And if some emanating penumbra is to be discerned by perceptive scholars, why should it apply only to lying about military service, and not extend, say, to lying about playing for the Red Wings? Isn’t playing hockey valorous?