Does The New Stolen Valor Act Pass Constitutional Muster?
I wholeheartedly agree with James Joyner’s arguments against The Stolen Valor Act of 2012. After reading his post, though, decided to click over and check out exactly what the new proposed law said to see if it adequately addressed the Supreme Court’s concerns, expressed in June’s decision in United States v. Alvarez, that the law as originally written was unconstitutionally overly broad in that it purported to criminalize speech that is protected by the First Amendment.
As you may recall, that case involved a man named Xavier Alvarez who, shortly after winning election to a Water District Board of Directors position claimed at a public meeting of the board to have been a 25 year veteran of the Marine Corps who won the Congressional Medal Of Honor back in 1987. None of these facts were true, and Alvarez was prosecuted under the Stolen Valor Act, a law passed in 2005 and signed into law by President Bush. Under the law, Alvarez faced as much as a year in prison. Rather than go to trial, Alvarez pleaded guilty to the charge while reserving the right to challenge the laws Constitutionality on appeal. In August 2010, a panel of the 9th Circuit Court of Appeals found the law to be unconstitutional, and that decision was affirmed by the entire 9th Circuit in March 2011. Last June, of course, the Supreme Court agreed with the 9th Circuit and found the law unconstitutional.
The probable, and adverse, effect of the Act on freedom of expression illustrates, in a fundamental way, the reasons for the Law’s distrust of content-based speech prohibitions. The Act by its plain terms applies to a false statement made at any time, in any place, to any person. It can be assumed that it would not apply to, say, a theatrical performance. See Milkovich v. Lorain Journal Co., 497 U. S. 1, 20 (1990) (recognizing that some statements nominally purporting to contain false facts in reality “cannot reasonably be interpreted as stating actual facts about an individual” (internal quotation marks and brackets omitted)). Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home. The statute seeks 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. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 539-540 (1987) (prohibiting a nonprofit corporation from exploiting the “commercial magnetism” of the word “Olympic” when organizing an athletic competition (internal quotation marks omitted)).
Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment,it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.
In his concurring opinion, Justice Breyer suggested that a more narrowly tailored law may indeed have passed Constitutional scrutiny:
[A] more finely tailored statute might, as other kinds of statutes prohibiting false factual statements have done, insist upon a showing that the false statement caused specific harm or at least was material, or focus its coverage on lies most likely to beharmful or on contexts where such lies are most likely tocause harm.
The Government has provided no convincing explanation as to why a more finely tailored statute would notwork. In my own view, such a statute could significantly reduce the threat of First Amendment harm while permitting the statute to achieve its important protective objective. That being so, I find the statute as presently drafted works disproportionate constitutional harm. It consequently fails intermediate scrutiny, and so violates the First Amendment.
Whoever, with the intent of securing a tangible benefit or personal gain, knowingly, falsely, and materially represents himself or herself through any written or oral communication (including a resume) to have served in the Armed Forces of the United States or to have been awarded any decoration, medal, ribbon, or other device authorized by Congress or pursuant to Federal law for the Armed Forces of the United States, shall be fined under this title, imprisoned for not more than 6 months, or
”(2) TANGIBLE BENEFIT OR PERSONAL GAIN.— For purposes of this subsection, the term ‘tangible benefit or personal gain’ includes—
”(A) a benefit relating to military service provided by the Federal Government or a State or local government;
”(B) public or private employment;
”(C) financial remuneration;
”(D) an effect on the outcome of a criminal or civil court proceeding;
”(E) election of the speaker to paying office; and
”(F) appointment to a board or leadership position of a non-profit organization.
In essence the law limits punishment to those cases where a misrepresentation is made for the purpose of obtaining some type of personal gain. In other words, fraud. As I’ve noted before, fraud has never never been entitled to First Amendment protection, and that seems to be what the new law is aimed at. Specifically, the law seeks to punish people who misrepresent the receipt of military honors for the purpose of receiving some kind of gain, whether from the state or from private entities. While we will have to wait until the law is actually enforced, assuming it is passed which seems likely, to see exactly how it will be applied, it seems clear that most of this new law would likely survive the Constitutional challenge that doomed its predecessor.
One possible problem I see with the the law is Subsection (E) which makes it a crime to make such a representation during the course of a political campaign. This potentially crosses a line that, should the issue ever get before it, the Supreme Court likely won’t be willing to cross. If there’s one area of speech where the “marketplace of ideas” argument applies, it’s politics. The idea that politicians and their opponents should be free to say nearly anything and that the public can base its decision based on what they hear is pretty much what politics is about. Furthermore, if we’re going to start punishing candidates for misrepresentations during the course of our campaign, we are going to be spending a lot of time policing speech that ought to be allowed to flourish as much as possible.
FinallyI have to wonder what the purpose of this law actually is. To the extent that a person who is making a misrepresentation about a military honor is defrauding someone, there are already laws at the Federal and State level that would punish them, as long as there was a monetary loss. In addition, someone defrauded by such a person would have a right to sue them in civil court and obtain a judgment that, depending on the facts of the case, would not even be dischargeble in Bankruptcy. Do we really need to add a new Federal criminal statute to the books and devote FBI resources to something like this? I just don’t see the justification.