Supreme Court takes on Stolen Valor Act - Army News | News from Afghanistan & Iraq - Army Times

Supreme Court takes on Stolen Valor Act

The intrinsic value of military medals was pitted against the right to free speech Wednesday as the nation’s highest court debated whether the 2006 law known as the Stolen Valor Act violates the constitution.

The law allows the government to criminally prosecute fakers who claim to have received the Medal of Honor or other military valor medals they did not earn.

Critics of the law say the government should not criminalize speech just because it might be offensive to some people. But supporters say the law correctly punishes a form of fraud or theft that diminishes the legitimate honors bestowed on the most exceptional troops.

“To stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers,” Donald Verrilli Jr., the U.S. Solicitor General, told the court.

“The honor system is about identifying the attributes, the essence, of what we want in our servicemen and women — courage, sacrifice, love of country, willingness to put your life on the line for your comrades,” Verrilli said. “And what the medals do is say to our military: ‘This is what we care about.’”

The justices pressed Verrilli repeatedly about how and where to limit government control of speech.

“Where do you stop?” asked Chief Justice John Roberts. “Is it a crime to state that you have a high school diploma if you know that you don’t? … Congress can say: We want people to finish high school. It’s a big thing to have a high school diploma. So we want to make sure nobody goes around saying they do [have a diploma] when they don’t.”

“How about extramarital affairs?” asked Justice Elena Kagan. “The government has a strong interest in the sanctity of the family, the stability of the family, so we’re going to prevent everybody from telling lies about their extramarital affairs?”

Verrilli acknowledged the justices’ concerns.

“We have a lot of slippery slope-type questions here today,” Verrilli said. Nevertheless, he added, this law is acceptable because it is narrowly worded and protects an important military honor.

“The harm that justifies [the Stolen Valor Act] is the misappropriation of the government-conferred honor and esteem, and that is a real harm,” he said.

The admitted liar at the center of the case is Xavier Alvarez, a 53-year-old man with no military experience. In 2007, when he was running for a seat on a local district water board in California, he claimed he was a retired Marine and Medal of Honor recipient.

Alvarez was convicted in federal court of violating the Stolen Valor Act and sentenced to three years’ probation. The FBI has investigated hundreds of reports of military fakers, and dozens have been convicted of the misdemeanor, which carries a sentence of up to six months in jail.

There is little dispute that Alvarez was a serial liar; his claims also included playing professional hockey and being wounded while helping to rescue the U.S. ambassador during the 1979 Iranian hostage crisis, investigators said. His own lawyers have not denied that his claims to military service are false. But, they argue, those false claims to not constitute a crime.

The Supreme Court’s ruling, expected in March, is likely to have a sweeping impact far beyond its potential to nullify the Stolen Valor Act. It could influence trademark laws, the prosecution of fraud rings, and the way law enforcement agents interrogate suspects.

Many legal experts say the Supreme Court will strike down the law as violating the First Amendment right to free speech, which this court has often defended aggressively. “I don’t think this court is going to want to create new categories of unprotected speech,” Aaron Caplan, an associate professor at Loyola Law School in Los Angeles, said in an interview Wednesday.

Last year the court ruled 8-1 in support of the Westboro Baptist Church, which held protests outside military funerals and claimed U.S. troops’ deaths were God’s punishment for America’s tolerance of gay rights. The court also struck down a California law that limited the sale of violent video games to minors.

And, more controversially, the court extended the philosophy of free speech to include corporations, ruling that any law limiting corporations’ ability to give unlimited money for political purposes violates the constitution.

Nevertheless, the justices at times seemed skeptical of claims that military fakers should be protected, none more so than Justice Antonin Scalia.

“I believe that there is no First Amendment value in falsehood,” Scalia flatly declared.

He also noted that lies are criminalized in many other circumstances — for example, the prohibition on making false statements to law enforcement officials.

“How do you justify that? Because the making of the false statement impairs a governmental investigation. And what is being urged here is that the making of this type of a false statement impairs the government’s ability to honor valorous members of the armed forces,” Scalia said.

Scalia also pointed to laws prohibiting the “intentional infliction of emotional harm,” such as telling someone — falsely — that their child has been struck by a bus and killed.

But Justice Sonia Sotomayor said that while the issue provokes an understandable emotional reaction, that’s not enough to justify criminalizing it.

“So outside of the emotional reaction, where’s the harm? And I’m not minimizing it. I, too, take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true,” Sotomayor said.

Jonathan Libby, the attorney representing Alvarez in challenging the law, said the government could find many ways to protect the prestige of military medals short of criminal prosecutions. For example, it could publish a list of medal winners to help expose fakers to public ridicule.

Libby also said the military could “redouble its efforts at honoring those who are in fact entitled to the awards.” He pointed to recent congressional hearings about the number of Medal of Honor recipients falling to historic lows during the wars in Iraq and Afghanistan.

“How about giving a Medal of Shame to those who have falsely claimed to have earned the Medal of Valor?” Scalia said, provoking laughter in the typically hushed courtroom. “I think that would be good.”