By Erica Trachtman, J.D. Candidate

This is my second post on United States v. Alvarez, the case involving one man’s phony claims of military heroism recently granted certiorari by the Supreme Court. Specifically at issue in the case is the constitutionality of the Stolen Valor Act, a federal law that criminalizes lying about the receipt of military awards, and it raises serious concerns about the ability of lawmakers to curtail First Amendment rights. In this post, I analyze the probable fate of the Stolen Valor Act in light of two recent Supreme Court decisions interpreting traditional First Amendment jurisprudence. Emphasized in both opinions, and what I expect will be prevalent in the Alvarezdecision, is the Court’s abhorrence of content-based restrictions on speech. As Justice Marshall once explained, “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[1]  Consequently, unless it is part of a well-defined, long-standing tradition of proscription, the Court is reluctant to recognize a novel restriction on content. In both of the Court’s recent decisions, it deemed allowing new restrictions, like the Stolen Valor Act’s prohibition of military award-related lies, directly at odds with the enduring nature of the First Amendment’s protection. InUnited States v. Stevens, the Court stated:“The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”[2]

Stevensdealt with18 U.S.C. § 48, a federal law that criminalized the commercial creation, sale, or possession of certain depictions of animal cruelty. The defendant, Robert J. Stevens, was convicted for selling videos online that depicted pit bulls engaged in dogfighting, and sentenced to thirty-seven months’ imprisonment.[3] The legislative background of § 48 reveals a particular focus on preventing the creation and distribution of crush videos, which feature the torture and killing of helpless animals, and are said to appeal to a specific sexual fetish.[4]  The legislators behind § 48 were careful enough to include a clause which exempts depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”[5] Nonetheless, in an 8–1 opinion, the Court found the statute substantially overbroad and facially invalid under the First Amendment.

The Court explained that because the statute explicitly regulated expression based on content, it was presumptively invalid. Just like the Ninth Circuit in Alvarez, the Court looked to the few limited areas in which content-based restrictions are permitted: obscenity, defamation, fraud, incitement, speech integral to criminal conduct. The Court rejected the government’s argument that depictions of animal cruelty should be added to the list because they “lack expressive value.”  The government’s proposal that a simple test balancing the value of speech against its societal costs be used to determine whether a category of speech enjoys First Amendment protection was similarly rebuffed.  

Because the law did not fit into an existing categorical exception and created a “criminal prohibition of alarming breadth,” it was ultimately declared invalid. The Court relied on a facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep. The Court specifically mentioned the large national market for hunting-related publications, and found it unacceptable that the statute would prohibit depictions of lawful hunting activities, which typically offer only entertainment value and thus fall outside the statute’s exemption clause. Relying on prosecutorial restraint to limit the statute’s reach to crush videos and depictions of animal fighting was considered an insufficient remedy for the constitutional issues.  

Just last June, the Court struck down yet another content-based restriction on speech in Brown v. Entertainment Merchants Association.[6] The respondents, representatives of the video-game and software industries, brought a pre-enforcement challenge to a California law which prohibited the sale or rental of violent video games to minors and required their packaging to be labeled “18.” This time, in a 7–2 opinion, the Court applied strict scrutiny review and held that the law did not comport with the First Amendment.

The state argued that violent-speech regulation is akin to obscenity regulation, but the Court maintained that the obscenity exception “does not cover whatever a legislature finds shocking, but only depictions of sexual conduct.”[7] The Court then took issue with California’s attempt to create a wholly new category of content-based regulation that is permissible only for speech directed at children, finding such efforts “unprecedented and mistaken,”[8] as there is no longstanding tradition in this country of restricting children’s access to depictions of violence.  

The Court subjected the statute to strict scrutiny, requiring the state to show that the law was both necessary to achieve a compelling state interest, and narrowly tailored to achieve the intended result. In applying this test, the Court admitted that strict scrutiny is a demanding standard that content-based regulations rarely survive. The Court ultimately held that the law was not justified by a high degree of necessity, as California failed to show a direct causal link between violent video games and harm to minors. While acknowledging that the legislation had legitimate ends, the Court found the law both under-inclusive, in that it excludes all other portrayals of violence other than video games, and over-inclusive because it “abridges the rights of young people whose parents think such video games are a harmless pastime.”[9]

In his concurrence, Justice Alito expressed apprehension over the constitutionally protected content of certain video games. He detailed how in some games, victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. Others have a racial or ethnic motive for their violence, including ethnic cleansing of African Americans, Latinos, or Jews. There are even games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech.[10] Despite the dark, antisocial, and presumably valueless nature of these games, the majority stressed that a legislature cannot create new categories of unprotected speech simply because it concludes that that speech is too harmful to be tolerated;[11] in short, disgust is not a valid basis for restricting expression.  

So where does this leave the Stolen Valor Act? As a starting point, I find it interesting that the statute in Stevenswas written with some degree of caution, or at the very least with an eye towards subsequent First Amendment challenges, and was nonetheless rejected by the Court. In addition to the broad exemption clause, prosecutions under the law were limited to depictions of animal cruelty created for commercial gain in interstate or foreign commerce. Thus, the first fatal flaw of the Stolen Valor Act is that its drafters made no effort to limit or narrow the scope of who can be prosecuted under the law. Even if Congress were to alter the statute’s language, prohibiting only false claims about military honors made to achieve some status, benefit, or monetary gain, this would probably be insufficient to redeem the Act.

False claims regarding military honors seem somewhat innocuous in comparison to the graphic depictions of violence and cruelty to animals that were at issue in Stevens and Brown. But, as noted by the Court in both decisions, just because something is disgusting or lacking in expressive value does not mean that it is beyond the First Amendment’s reach. If there was a longstanding American tradition of prohibiting false claims about military awards that would certainly lend support to the Act’s validity. The dissent in the Ninth Circuit Alvarezdecision did cite cases spanning six decades in which the Court labeled false factual speech unworthy of constitutional protection. But this too may not be enough. The key question will be whether false claims about military honors fall into one of the few existing categorical exceptions where content-based restrictions are permitted. In Stevens, the Court acknowledged the historical prohibition against cruelty to animals, but deemed it an insufficient basis for adding depictions of such cruelty to the list of permissible content-based restrictions. The Court similarly rejected California’s efforts to add violent speech directed at children to the list.

Ultimately, I am doubtful that the integrity of the government’s military honors system is compelling enough to withstand strict scrutiny review or a facial challenge. Though a plainly legitimate goal, like protecting helpless animals or limiting the nation’s youth from exposure to violence, it cannot salvage the statute’s obvious overbreadth. Although the Alvarez dissent mocked this very idea, conceivably under the Act, Tom Hank’s reply to Lieutenant Dan in the movie Forrest Gump (that he had received the Congressional Medal of Honor) could become the target of a criminal prosecution. The best remedy for the issue of stolen valor is simply the power of others to call the liar’s bluff. Knowing that there are less than one hundred living recipients of the Medal of Honor, anyone doubting a “recipient’s” veracity, can use a readily accessible database[12] to search for the person and discover the truth.