Paul Watler's Perspective

A young man appears at a victory party for the newly elected mayor of Houston in a U.S. Army dress uniform bearing a chest full of military decorations. Two distinguished service crosses, the Army's second-highest commendation for valor, and the Purple Heart, awarded to members of the military wounded in combat in defense of their country, are among the eye-catching commendations on display.

But something doesn't look quite right about the well-decorated serviceman. A suspicious veteran sends several photos to KTRK-TV in Houston which goes on-air with video of the apparent hero who attracted so much attention at the mayor's celebration.

A military history professor tells the station that it would be highly unlikely that such a young soldier would have earned all those awards and that a real veteran would never dishonor the uniform festooned with ribbons and medals by wearing a scruffy goatee.

The KTRK investigation is quickly followed by one by the FBI. In short order, the election-party poseur is arrested on charges of violating the U.S. Stolen Valor Act. The law makes it a crime for a person to falsely represent that he or she has been awarded a decoration authorized by Congress to recognize meritorious service in the U.S. military.

But rather than committing a crime, was the fake military hero merely exercising his First Amendment rights? A case recently accepted by the U.S. Supreme Court, United States v. Alvarez, may decide the issue.

In Alvarez, a local California public official introduced himself at a public meeting as a retired Marine who had been wounded in action and awarded the Congressional Medal of Honor. It was all a big lie by Alvarez. He eventually pleaded guilty to criminally violating the Stolen Valor Act but reserved his right to appeal the issue of whether the statute was facially invalid under the First Amendment. The lies by Alvarez were only verbal and did not involve falsely wearing the uniform or honors or obtaining benefits. His actions were pure speech, made criminal by a 2006 amendment to the Act.

A divided three-judge panel of the U.S. Ninth Circuit Court of Appeals in an opinion by Judge Milan D. Smith found that "the speech proscribed by the Act is not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First Amendment's protective sweep." Finding the law a content-based regulation of speech, the court determined that the communication at issue did not fall within the traditional categories of speech that lacks constitutional protection—obscenity, defamation, fraud, incitement and speech integral to criminal conduct. Applying strict scrutiny analysis, the majority on the Ninth Circuit panel held that the statute was not narrowly tailored to advance the important governmental interest of honoring and motivating members of the Armed Services.

The Ninth Circuit majority opinion was pervaded with concern that the Act's criminalization of pure falsehood—without the additional element of defamation, fraud, obscenity or the like—would open the door to expansive suppression of pure speech unguided by any limiting principal. Citing New York Times v. Sullivan as a leading example, the decision finds a long history of First Amendment protection of speech in the Supreme Court that does not hinge on the truth of the matter asserted. "The 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."

A vigorous dissent by Judge Jay S. Bybee would have held the Act constitutional. Under First Amendment authority following Sullivan, "Alvarez's knowingly false statement is excluded from the limited spheres of protection carved out by the Supreme Court for false statements of fact necessary to protect speech that matters, and it is therefore not entitled to constitutional protection."

Two federal districts differ from the result in Alvarez in cases more akin to the Houston incident of a man falsely posing in a ribbon-bedecked uniform. Those district courts found that the government has the constitutional authority to prohibit the false wearing of military honors as part of the power to raise and support armies unrelated to any goal of suppressing speech.

Now, the Supreme Court will have the final word on the debate involving pure false speech claims to military commendations. Notably, the Court has been active in the First Amendment realm in recent years. And notably, it has been protective of speech rights even—or especially—in cases in which majoritarian sentiment would favor suppression or regulation of offensive communication. In just the past two terms, the Court has extended free speech recognition to corporations, refused to approve the criminalization of graphic depictions of animal cruelty and granted First Amendment protection to virtual hate-speech at the funerals of members of the military killed in action. No doubt this is a Court that could readily strike down a statute like the 2006 amendment to the Stolen Valor Act. Despite the law's broad appeal to Americans desirous that the hard-earned accolades of military veterans not be diminished through self-serving claims by a despicable few, the trend in the Court’s recent First Amendment cases does not favor finding the Act constitutional.

Almost 20 years ago, Justice Anthony Kennedy, now often the swing vote in close decisions by the Court, offered this view of the importance of constitutional protection for offensive public speech. "The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech." That sentiment would have fit perfectly in the Ninth Circuit's majority opinion in Alvarez. It may presage the Court's treatment of the speech provisions of the Stolen Valor Act. In any event, Justice Kennedy's view shows that even though a law may have significant popular appeal, the First Amendment gives broad protection to expressions that many find intolerable.

— Paul Watler is a partner at Jackson Walker. He can be reached at pwatler@jw.com.