Justices may uphold Stolen Valor Act

Thursday, February 23, 2012

WASHINGTON — It’s no lie: the Supreme Court may actually uphold the Stolen Valor Act, the federal law that makes it a crime to lie about having earned a military honor.

That strong possibility emerged from the hourlong oral arguments yesterday in the case of United States v. Alvarez. The 9th U.S. Circuit Court of Appeals had found the law patently unconstitutional under the First Amendment. But the Supreme Court may add Alvarez to the long list of cases in which the justices take a 9th Circuit decision as a cue to run in the opposite direction.

The justices were clearly conflicted about the law, with several justices voicing fears that if the statute is upheld, the government could start criminalizing all kinds of fibs. Much of the argument was focused on the value — or lack thereof — of false speech.

“Where do you stop?” Chief Justice John Roberts Jr. asked at one point, positing a law that would punish lying about a high school diploma. Justice Stephen Breyer dramatically offered up an honorable lie that deserves protection: “Obvious example: Are there Jews hiding in the cellar? No!” Justice Anthony Kennedy disparagingly threw out the term “ministry of truth” to show his concern about disturbing the Court’s tradition of broadly protecting all manner of offensive speech.

But in the same breath, Kennedy also said, “On the other hand, I have to acknowledge that this (lying) does diminish the medal in many respects.”

That comment suggests that Solicitor General Donald Verrilli Jr., in defending the law, had been successful in arguing that the law advances a compelling government interest in protecting the integrity of the military honors program launched in 1782 by George Washington — whose birthday it was yesterday. “Military honors play a vital role in inculcating and sustaining the core values of our nation’s armed forces,” Verrilli said.

Verrilli also seemed to succeed in portraying the law as extremely limited, confined to punishing “a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor, and … only punishes speech about yourself.” Later he said, “This statute is as narrow as you can get.”

Just as important, Verrilli asserted that the law was so narrow that it left ample “breathing space” for parody, satire and even “political theater” in which someone might claim to have earned a medal to make a dramatic political point. Verrilli’s adversary in court, federal public defender Jonathan Libby, helped him considerably when he conceded that the Stolen Valor Act does not “necessarily chill any truthful speech.”

Kevin Ainsworth, author of a brief for the Congressional Medal of Honor Foundation in support of the law, said he came away from the argument optimistic, especially after Libby’s concession. “The justices were surprised,” he said, adding that a majority may now feel, “If there’s no risk of chill, why do we care?” about upholding the law. Ainsworth is a member of the Mintz Levin law firm.

First Amendment advocate and scholar Ronald Collins also attended the argument and said he was disturbed. “Owing to weak counsel on the First Amendment side, too much of the discussion was derailed and dwelled on the ‘value of false speech,’” said Collins, a professor at the University of Washington Law School. “Given that, the result could be a majority opinion with loose language about falsity — language that might be used to undermine the great principle of New York Times v. Sullivan and the existing law of defamation.”

Based on the arguments, the Court could uphold the law in one of two ways. The first would be to avoid the First Amendment altogether and frame the law as protecting the rough equivalent of a government trademark covering military honors.

Kennedy mentioned that approach more than once, telling Verrilli that it could be his “strongest” argument. Kennedy referred to the Court’s 1987 decision in San Francisco Arts & Athletics v. U.S. Olympic Committee, which said the government had the power to protect the Olympic name from infringement by others. A brief offering that alternative was filed in the Alvarez case. The government mentioned the trademark defense only in passing in its brief, but when prompted by Kennedy, Verrilli appeared to embrace it during oral argument. “One of the harms that justifies this statute is the misappropriation of the government-conferred honor and esteem,” he said. Justice Breyer also seemed to like the trademark approach.

The other way the Court could uphold the law would be to apply the Court’s longstanding doctrine of “constitutional avoidance” — in other words, interpreting the law in a way that would rescue it from a finding of unconstitutionality.

In this case, the Stolen Valor Act flatly criminalizes falsely representing having been awarded “any decoration or medal authorized by Congress for the Armed Forces of the United States.” It does not spell out any exceptions for lies uttered for the purpose of satire or parody or anything else, and it does not require that the misrepresentation cause any harm or be made with the aim of monetary gain — traditional elements of other fraud statutes.

But the Court, picking up on Verrilli’s assertions about the law’s limited nature and the harms it was enacted to prevent, could in effect write those limitations into the law in the process of upholding it. Justice Ruth Bader Ginsburg suggested that option during oral argument. When Libby said that the law as written could be used to prosecute satire or parody, Ginsburg interjected, “But the government has said, ‘that’s not how we read the statute,’ and the courts read statutes to avoid constitutional collision.”

The problem with that solution is that it might smack of judicial activism: the Court usurping the legislative role by tinkering with an act of Congress. As Lyle Denniston on SCOTUSblog wrote after yesterday’s argument, “The Court, of course, has a long tradition of avoiding constitutional decisions when it can decide a case otherwise, but there is also a tradition that judges should not actually rewrite a law to make it constitutionally acceptable, and sometimes the line between the two traditions is quite blurred.”

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