Of the cases decided by the U.S. Supreme Court in the 2011-2012 term, National Federation of Independent Business v. Sebelius (the decision upholding the Patient Protection and Affordable Care Act) has clearly received the most attention. However, another case, U.S. v. Alvarez, striking down the Stolen Valor Act of 2005 (SVA) on First Amendment grounds, may well be as important – if not as famous. Alvarez extends and expands the Roberts Court’s First Amendment jurisprudence beyond the extensive and expansive analysis in Citizens United v. Federal Election Commission. Most notably, U.S. v Alvarez provides, unequivocally, that even intentional lies are not necessarily excluded from First Amendment protection.
The Stolen Valor Act of 2005. The Stolen Valor Act of 2005 represents the congressional response to the growing number of military imposters, spawned in part by the explosion of social media and two wars in Iraq and Afghanistan. Broadening a previous law prohibiting the unauthorized wear, manufacture, and sale of military medals, Section B of the act provided:
Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.
The prison term was enhanced under the SVA to one year if the decoration involved was the Congressional Medal of Honor – the nation’s highest military award.
Alvarez’s Charged Violation of the SVA and Procedural History. Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated Director Alvarez introduced himself, stating “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” With the exception of “I’m still around,” Alvarez’s statement was a series of bizarre lies.
Following his indictment for violating the SVA, the U.S. District Court for the Central District of California rejected Alvarez’s claim that the statute violated the First Amendment and should therefore be invalidated. Alvarez pleaded guilty and brought his First Amendment claim to the Ninth Circuit. That Court invalidated the SVA under the First Amendment and reversed Alvarez’s conviction. After the U.S. Supreme Court granted certiorari, the United States Court of Appeals for the Tenth Circuit, found the SVA constitutional in United States v. Strandlof.
By a 6-3 plurality, the Supreme Court affirmed the ruling of the Ninth Circuit, invalidating the SVA. Justice Kennedy wrote the Court’s plurality opinion in which he was joined by Chief Justice Roberts and Justices Sotomayor and Ginsburg. Justice Breyer wrote a concurring opinion in which Justice Kagan joined. A dissenting opinion by Justice Alito was joined by Justices Scalia and Thomas.
FALSE SPEECH IS NOT SUBJECT TO A BLANKET EXEMPTION FROM CONSTITUTIONAL PROTECTION. Content-based restrictions on speech – which even the dissent in Alvarez acknowledged is the case with the SVA - have been permitted only for a few historic categories of speech, including incitement, obscenity, defamation, speech integral to criminal conduct, so-called “fighting words,” child pornography, fraud, true threats, and speech presenting some grave and imminent threat that the Government has the power to prevent.
The government’s position in defending the constitutionality of the SVA in Alvarez centers on the issue of how much, if any, First Amendment protection deliberately false statements are entitled. The initial question Alvarez dealt with is whether the false statements sought to be restricted by the SVA fell into one of the exempt categories above. The answer provided by both the plurality and concurring opinions is “no.” Much of the reasoning for this conclusion draws on two seminal defamation cases: New York Times v. Sullivan and Gertz v. Robert Welch, Inc.
Sullivan held that libel laws are unconstitutional unless they include an element of intent. In other words, if false and defamatory speech is to evade the protections of the First Amendment, the speaker must have a level of knowledge regarding the falsity of the challenged statement. In reaching this conclusion, the Sullivan Court answered the question of whether speech loses First Amendment protection by the falsity of some of its factual statements and by its alleged defamation in the negative. The Sullivan Court reasoned:
“Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth. . . . The constitutional protection does not turn upon the truth, popularity, or social utility of the ideas and beliefs which are offered. As Madison said, “Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press.” (Citations Omitted). . . “[t]hat erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.” 
The Sullivan Court added:
“[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’ ”
In Gertz, a common ‘bookend’ case to Sullivan, the Court stated that an “erroneous statement of fact is not worthy of constitutional protection.”  The Gertz Court classified false statements of fact as “belong[ing] to that category of utterances” that “ ‘are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” 
Both Justice Kennedy’s plurality opinion and Justice Breyer’s concurring opinion in Alvarez both reject the implication that Gertz stands for the proposition that false speech is per se, or even presumptively, unprotected by the First Amendment. Justice Kennedy writes:
“Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.”
Similarly, Justice Breyer opined in the concurrence:
“[T]his Court has frequently said or implied that false factual statements enjoy little First Amendment protection. But these judicial statements cannot be read to mean “no protection at all.” False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.”
That the majority spends so much time clarifying that false statements are not categorically exempted from First Amendment protection reveals more about the slippery slope such an overbroad pronouncement portends, rather than illuminating the facts in Alvarez’s verbal flight into self-aggrandizing heroic fantasy. Nonetheless, in this important respect, Alvarez clarifies much of the dicta concerning First Amendment protection for false statements contained in Gertz and other cases. If nothing else, Alvarez stands for the proposition that, more than just providing “breathing room” for false statements, the First Amendment’s protections are not necessarily excepted merely because a statement is false.
The SVA Did Not Survive Either a Strict or Intermediate Level of Scrutiny. Justice Kennedy’s plurality opinion and Justice Breyer’s concurring opinion do not disagree that the speech restriction in the SVA is content-based rather than content-neutral; however there was some disagreement on the appropriate level of scrutiny to be applied to the speech restriction contained in the SVA.
Typically, statutory restrictions on speech are treated differently depending on whether the restriction is “content-based” or “content-neutral.” A restriction is content-neutral when the government does not take into account the substance of what the speaker is expressing. A content-based restriction is where the government seeks to prevent speech based on what the speaker is actually saying. As discussed above, there was no disagreement among the members of the Court in the Alvarez case that the SVA was clearly a content-based restriction. Content-based restrictions on speech typically trigger “strict scrutiny.”
Justice Kennedy wrote that:
“When content-based speech regulation is in question . . . exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment.” 
Because few statutes seeking to abridge pure speech can withstand strict or “exacting” scrutiny, it is not surprising Justice Kennedy reached the same conclusion regarding the SVA. And so it is Justice Breyer’s concurring opinion that provides the biggest surprise in the Alvarez case. In his concurring opinion, Justice Breyer suggests that rather than strict scrutiny, the SVA called for an application of “intermediate scrutiny.” This concurring opinion also provides Congress with a blueprint for how to amend the SVA in a manner that could be upheld as constitutional.
In United States v. O'Brien, the Supreme Court formulated an “intermediate scrutiny” test for upholding a criminal statute impinging on the First Amendment. In that case, the government prosecuted O’Brien for burning his draft card in front of a courthouse. The defendant's purpose in burning his draft card was to spread his ideologies about pacifism. In finding the criminal statute to be constitutional, the Supreme Court formulated a test for upholding such a statute:
“[I]f it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”
Justice Breyer concluded that, rather than requiring strict or “exacting” scrutiny as Justice Kennedy did, a fair reading of the SVA put it into the “intermediate scrutiny” category:
“Regardless of the label, some such approach is necessary if the First Amendment is to offer proper protection in the many instances in which a statute adversely affects constitutionally protected interests but warrants neither near-automatic condemnation (as “strict scrutiny” implies) nor near-automatic approval (as is implicit in “rational basis” review). See, e.g., Turner Broadcasting System, Inc., supra, at 641–652 (“must-carry” cable regulations); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 566 (1980) (non-misleading commercial speech); Burdick v. Takushi, 504 U. S. 428, 433– 434 (1992) (election regulation); Pickering, supra, at 568 (government employee speech); United States v. O’Brien, 391 U. S. 367, 377 (1968) (application of generally applicable laws to expressive conduct). . . in this case, the Court’s term “intermediate scrutiny” describes what I think we should do.”
Regrettably for the proponents of the Stolen Valor Act of 2005, Justice Breyer then went on at some length in detailing why – even under “intermediate scrutiny” - the act could not stand.
“[f]ew statutes, if any, simply prohibit without limitation the telling of a lie, even a lie about one particular matter. Instead, in virtually all these instances limitations of context, requirements of proof of injury, and the like, narrow the statute to a subset of lies where specific harm is more likely to occur. The limitations help to make certain that the statute does not allow its threat of liability or criminal punishment to roam at large, discouraging or forbidding the telling of the lie in contexts where harm is unlikely or the need for the prohibition is small. The statute before us lacks any such limiting features. It may be construed to prohibit only knowing and intentional acts of deception about readily verifiable facts within the personal knowledge of the speaker, thus reducing the risk that valuable speech is chilled. Supra, at 3–4. But it still ranges very broadly. And that breadth means that it creates a significant risk of First Amendment harm.”
The Dissent. The importance of the reasoning (arguing for intermediate scrutiny) contained in the concurring opinion is seemingly bolstered by Justice Alito’s dissent. Indeed much of the dissent goes through the intermediate test elements as defined in O’Brien and then refutes the conclusions Justice Breyer reached when he applied those same elements to the facts in Alvarez. In this regard, the dissent relied heavily on the facts considered by Congress in assessing the harm that necessitated the passage of the SVA in the first place.
What is perhaps most compelling about the dissent, however, is the manner in which Justice Alito deals with the issue of the “instrumental” First Amendment protection that even false statements are entitled to. In prior First Amendment cases such as Gertz, where the Court skirted the issue of intrinsic protection of false statements, it was cautious to “exten[d] a measure of strategic protection” to [false] statements in order to ensure sufficient ‘breathing space’ for protected speech.
In his dissent in Alvarez Justice Alito argued:
“[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth. In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumental purpose that the First Amendment might protect. Tellingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none.” 
It is clear from Justice Alito’s opinion that the three dissenting Justices were not inclined to accept the parade of hypotheticals the plurality and concurring opinions found so beguiling. Contrasted with the Citizens United decision from 2010, Alvarez provides an important clue as to how the Court, under its present make up, will continue its free speech jurisprudence.
New and Improved: The Stolen Valor Act of 2011. As discussed above, Justice Breyer’s concurring opinion seemed to encourage Congress to amend the SVA based on its laudable objectives. Toward this end, Justice Breyer’s concurrence contained a road map by which Congress could amend the SVA to pass constitutional muster.
To this end, on September 12, 2012 the Stolen Valor Act of 2011 passed the House of Representatives by a bi-partisan vote of 410-3. The amended SVA addresses concerns of over-breadth by introducing elements much more akin to fraud, requiring proof of an intent to profit from lying about unearned military honors.
Also, in an effort to address the harms sought to be avoided by the SVA, the Defense Department took up the suggestion made in Justice Kennedy’s plurality opinion and undertook to address the governmental interest in preserving the integrity of military honors. On July 25, 2012, the Defense Department launched a website – www.valor.defense.gov – that provides a searchable database of medal recipients.
Conclusion. By adding a ‘scienter’ requirement and actual fraud elements, the congressional re-write of the stolen valor act may now preserve the constitutionality of the statute, at least nominally. Unfortunately, the new version guts the original intent of the statute in that it fails to recognize the actual victims of “stolen valor.”
The true victims of Stolen Valor offenses are the legitimate recipients of military awards. Unlike uniforms, which are given to all members upon entry into the armed services, the awards protected by the Stolen Valor Act are only conferred upon members of a much smaller and elite “club.” It can well be argued that military decorations for distinctive valor and sacrifice are “club-owned goods.” Without the excludability of actual merit – where they might be claimed by any ordinary soldier, sailor, airman, or marine (not to mention an individual like Alvarez who never even wore the uniform) – they become mere public goods, and accordingly lose most of their value. Heroic deeds are such because they are distinguishable from the ordinary. Valorous action is necessarily above and beyond any action that could be expected or required.
The fundamental purpose of the Stolen Valor Act was not to protect victims of fraud. Rather its aim was to protect the reputation and personal honor of actual recipients of military medals and citations. By attempting to recognize these as protectable legal interests, the original Stolen Valor Act was both laudable and unique. As made clear, however, by the plurality decision in U.S. v. Alvarez, the laudable and unique objective of the SVA was, perhaps, “a bridge too far” for the majority of the Court.
 617 F.3d 1159, 1200 (9th Cir., 2011)
 667 F. 3d 1146 (10th Cir., 2012)
 Id. At 271-72 (internal quotation marks omitted).
 Id. at 279 n.19 (quoting J.S. Mill, On Liberty 15 (Oxford: Blackwell, 1947)).
 418 U.S. at 340.
 Id. (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
 U.S. v. Alvarez, Justice Kennedy, for the Court, Slip Opinion pp. 5-6
 U.S. v. Alvarez, Justice Breyer, concurring, Slip Opinion at p. 4
 U.S. v. Alvarez, Justice Kennedy, for the Court, Slip Opinion at 14
 U.S. v.Alvarez, Justice Breyer, Slip Opinion at 2
 Gertz, 418 U. S., at 342 (quoting NAACP v. Button, 371 U. S. 415, 433 (1963) ).
 U.S. v. Alvarez, Justice Alito dissenting, Slip Opinion at 14
 HR 666 (2011)
Brent Christensen was recently appointed to the DCBA Editorial Board. He is a 1993 graduate of The John Marshall Law School and veteran of the U.S. Navy Seabees. He is a solo practitioner focused on DUI Defense.