Free Speech or Criminal Act?

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Does the First Amendment protect those who lie about having received a military award or honor?  Or does such a lie fall outside of First Amendment protection along with the likes of obscenity, fraud, defamation, incitement and speech integral to criminal conduct?

The United States Supreme Court heard oral argument on the Stolen Valor Act on Wednesday, February 22, 2012 to resolve a circuit split between the 9th and 10th Circuits.  A divided panel of the 9th Circuit ruled that the Stolen Valor Act is unconstitutional, reversing the court below.  A divided panel of the 10th Circuit ruled that the Act is constitutional, reversing the court below.  The Court granted cert to the 9th Circuit case involving defendant Xavier Alvarez, a politician who lied about receiving the Medal of Honor.

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The Act makes it a crime to falsely claim to have been awarded military honors or decorations and provides enhanced penalties for lying about the highest awards including the Medal of Honor.  Authored by a House Democrat, John Salazar, and co-sponsored by numerous Republicans and Democrats, the Act was passed in 2006 by unanimous consent in the Senate and a voice vote in the House after forty minutes of debate.  The “debate” consisted of consecutive speeches in support of the Act with more than one speaker referencing George Washington himself:  “Should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished.”  (See Volume 152 of the Congressional record Pages 22574-22577 available at THOMAS.)

Many amicus briefs were filed for both sides of the case.  The arguments for finding the Act unconstitutional rely on First Amendment free speech protection and warn against the dangers of criminalizing speech and the slippery slope of doing so.  Opponents of the Act include many news organizations who argue that such lies are better handled by exposing them to the public and allowing shame and humiliation to be the punishment instead of fines and jail time.  They warn of the chilling effect on truthful speech.

Supporters of the Act argue that it serves a compelling government interest in “preserving the integrity of its military honors system and conveying to the public the government’s gratitude towards those who have sacrificed for the country and fostering morale and valorous conduct within the military.”  Amicus briefs detail an extensive list of pretenders including executives, politicians, police administrators and authors.

The Justices peppered both sides during oral arguments but it appeared to many commentators that defense counsel, Jonathan Libby, a federal public defender from California, fared the worst during arguments as he conceded more than one key issues.  Justice Kagan asked what truthful speech would be chilled by the Act and Libby replied, “Your Honor, it’s not that it may necessarily chill any truthful speech.”  After acknowledging that the government may criminalize lies that are intended to obtain something of value, Libby was asked by Chief Justice Roberts if Mr. Alvarez, a politician, benefitted from his lie.  He answered, “Perhaps, you Honor.”  Chief Justice Roberts replied that that was “an awfully big concession.”

Is Mr. Alvarez a criminal or is he just a liar?  Is the interest of the government compelling enough to outweigh the protections of the First Amendment?  Congress shall make no law abridging the freedom of speech?  Or shall it?  A ruling is expected by summer.

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~Mary Susan Lucas~

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