By Erica Trachtman, J.D. Candidate
Revered as our nation’s highest military decoration, the Congressional Medal of Honor has been the symbol of American heroism and bravery since the Civil War Era. Its distinguished recipients personify courage and selflessness, having risked (and often lost) life and limb to protect the United States and defend democracy. In return for their exemplary acts of valor, Medal of Honor recipients receive not only the award itself, but also a lifetime of accompanying privileges and accolades. So how then should Medal imposters be treated? Those deceitful individuals who falsely claim to be Medal of Honor recipients and exploit the award for their own personal gain may be morally culpable, but should they be criminally liable?
On October 17, 2011, the Supreme Court granted certiorari in United States v. Alvarez, No. 11-210,to decide the constitutionality of the Stolen Valor Act, 18 U.S.C. § 704(b), a federal law proscribing the telling of untruths about military honors. Under the Act, it is illegal to make false written or verbal claims representing oneself as the receipt of any military decoration or medal. Those found in violation of the Act are subject to a fine, a six month prison term, or both. The penalty is doubled to a possible one year prison term when the claim involves the Medal of Honor, which is a testament to the award’s special significance.
President George W. Bush signed the Stolen Valor Act into law in December 2006, at the height of the War in Iraq. The Act was actually an expansion of existing law that prohibited numerous schemes for desecrating military honors, including the manufacture, purchase, solicitation, or sale of any military decoration or “colorable imitation thereof.” When Senator Kent Conrad (ND) introduced the Act into the Senate, he expressed concern that federal law enforcement officers were limited to prosecuting only those who wear counterfeit medals. The congressional record from the House floor debates echoes this concern and a growing animosity towards military medal imposters. Representative Jim Sensenbrenner (WI) explained, “While we can never fully pay our military heroes our debt of gratitude, America honors their service and sacrifice with military decorations . . . Unfortunately, the significance of these medals is being devalued by phony war heroes who fabricate their honors and military careers. They do so for greed and selfishness, and disrespect the service and sacrifice of our military heroes, as well as the honor they uniquely deserve.” The Act passed unanimously in both houses, and grassroots efforts to ramp up the detection and pursuit of valor thieves quickly followed.
The issue comes to the Supreme Court after the Ninth Circuit declared the Act an unconstitutional, content-based regulation of speech in United States v. Alvarez. The defendant, Xavier Alvarez, conditionally pled guilty to one count of falsely claiming to have received the Medal of Honor, having reserved his right to challenge the Act’s constitutionality. Alvarez’s charge stemmed from statements he made in 2007 after winning a seat on the board of a municipal water district. At his first meeting, Alvarez introduced himself to his fellow board members as a retired marine with a storied military career that had earned him the Medal of Honor. Alvarez has not, in fact, been awarded the Medal, nor has he spent a single day in the military. This was not the first time that Alvarez had fibbed about his exploits in the Armed Forces. In the years prior to the water district board incident he told multiple women that he had rescued the U.S. Ambassador during the Iranian hostage crisis and served in Vietnam as a helicopter pilot. Had Alvarez limited his falsehoods to general claims of gallant military service, he would have been in the clear––a liar, but nothing more. But precisely because he declared himself a Medal of Honor recipient (and because the FBI obtained a recording of this declaration), Alvarez became the subject of a criminal prosecution.
Alvarez’s fabrications were thus an easy target for prosecution. Defending the charge against Alvarez, United States Attorney George Cardona explained, “There are only about 100 men still living who, because of their extraordinary valor and service to this country, have been awarded this highest of honors . . .Alvarez sought to mislead others into believing that he belonged in the company of these men, . . . He does not. This deception and the dishonor it does to the actual recipients of the medal merits prosecution."
Though he too considered them deceptive and dishonest, Ninth Circuit Judge Milan D. Smith used an additional phrase to describe Alvarez’s statements: constitutionally protected. Writing for the court, Judge Smith labeled the Stolen Valor Act a clear, content-based regulation of speech. This type of regulation is ordinarily subjected to strict scrutiny review, unless the prohibited speech “fits among the narrow categories of false speech previously held to be beyond the First Amendment’s protective sweep.” These categories include obscenity, defamation, fraud, incitement, and speech integral to criminal conduct; false factual speech is not one of the traditional First Amendment-exempt categories.
The court went on to reject the government’s argument that because false statements of fact are particularly valueless, it is within Congress’s power to prohibit such statements unless it can be shown, in a particular case, why the speech should be protected from criminal prosecution. Finding this rule unacceptable, Judge Smith noted that it would significantly enlarge the scope of existing categorical exceptions to First Amendment protection and place the burden on the speaker to prove why protection is warranted. This is a major departure from the traditional notion that all speech is presumptively protected against government interference, unless the government can demonstrate the historical basis for or a compelling need to remove some speech from protection. Judge Smith explained, “[T]he right to speak and write whatever one chooses-including, to some degree, worthless, offensive, and demonstrable untruths-without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment.” The court further rejected the government’s contention that the Stolen Valor Act was sufficiently analogous to an antidefamation law to bring it within the scope of the historical exception for laws punishing defamation.
By applying strict scrutiny review, the court held the Act unconstitutional as it is not narrowly tailored to achieving a compelling governmental interest. Judge Smith mocked, “[I]f the Act is constitutional . . . then there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has no exceeded the speed limit while driving on the freeway.” 
In his dissent, Judge Jay S. Bybee scoffed at the majority’s “provocative” opinion, which in his view both confuses and overlooks the well-established notion that false statements of fact “are unprotected by the First Amendment except in a limited set of contexts where such protection is necessary to protect speech that matters.” By citing numerous cases spanning six decades, Judge Bybee underscored the Supreme Court’s long history of labeling false factual speech unworthy of constitutional protection. Judge Bybee ultimately declared that he would uphold the Stolen Valor Act as constitutional, both facially and as applied to Alvarez, a man who knowingly lied by claiming status in one of the nation’s most selective groups.
Now, the question remains whether the Supreme Court will deem Alvarez’s brand of knowingly false speech worthy of constitutional protection. The government’s petition for certiorari emphasizes the vital role that the Stolen Valor Act plays in safeguarding the integrity of the government's military honors system, prohibiting only a narrow category of knowingly false factual representations. The government goes on to accuse the Ninth Circuit of erroneously subjecting the Act to strict scrutiny, despite the Supreme Court's many decisions upholding content-based false-speech restrictions that, like the Stolen Valor Act, are supported by an important government interest.
Arguments before the Court are set to take place early next year. In my next post, I will explore how the Court’s recent rulings in favor of free expression weigh heavily against Alvarez (and subsequent military award imposters) being branded anything more than a liar.