The Supreme Court’s ruling upholding President Obama’s Affordable Care Act wasn’t the only split decision it handed down on June 28.
The Court also made a major First Amendment ruling, striking down the “Stolen Valor Act of 2005,” which makes it a crime to lie about having received the Congressional Medal of Honor. Justice Anthony Kennedy’s plurality opinion stated, “Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought….Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment.”
Beyond the law at issue, the Court’s plurality opinion observed, “The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.”
Does the Court’s decision mean that there is now a license to commit fraud and perjury? No. The plurality opinion — written by Justice Kennedy, and joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor — listed fraud as a category of speech which has long been restricted, and took pains to say that perjury statutes are constitutional. “Sworn testimony is quite distinct from lies not spoken under oath and simply intended to puff up oneself,” Justice Kennedy’s opinion declared.
The Stolen Valor case, United States v. Alvarez, produced three separate opinions. Justice Kennedy’s plurality opinion applied strict scrutiny to the law, saying, “When content-based speech is in question…exacting scrutiny is required,” and holding that the law flunked that test because, “The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie.” Justice Kennedy pointed out that Xavier Alvarez, the man who lied about having received a Congressional Medal of Honor, was perceived as a phony even before the FBI began investigating his false statements.
A concurring opinion written by Justice Stephen Breyer and joined by Justice Elena Kagan applied a lesser “intermediate scrutiny” to the law, agreed that it was unconstitutional, but left room for the government to come back with a narrower law. “The Government has provided no convincing explanation as to why a more finely tailored statute would not work,” Justice Breyer’s concurrence stated.
Meanwhile, Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, dissented, disagreeing with the assertion made in the other opinions that the government could protect its interest in honoring medal holders with an accurate, publicly available register of military awards. “Because a sufficiently comprehensive database is not practicable, lies about military awards cannot be remedied by what the plurality calls ‘counterspeech,'” Justice Alito’s dissent argued.
The decisions striking down the law, I think, are consistent with the Court’s First Amendment jurisprudence. They clarify that fraud and perjury are unprotected, but they avoid creating a new type of unprotected speech. In the end, they adhere to what the Court said in its landmark New York Times v. Sullivan decision: some false statements are inevitable if there is to be open and uninhibited debate about issues that matter. That is a principle worth fighting for.