Hey! That's My Valor: The Stolen Valor Act and Government Regulation of False Speech under the First Amendment

IntroductionOn July 23, 2007, at a meeting of the Three Valley Water District Board of Directors in suburban Los Angeles, newly elected director Xavier Alvarez introduced himself: "I'm a retired Marine of twenty-five 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."1 Apart from the last sentence, Alvarez's introduction was a series of lies.2 .Alvarez never served a day in any branch of the U.S. armed forces and certainly was never awarded the Congressional Medal of Honor.3Even prior to Alvarez's lies at the water district meeting, he was known for his tall tales.4 In addition to lying about military service and decorations, Alvarez had claimed to be a professional hockey player, a former police officer, and the former husband of a Mexican starlet.5 The district court observed that Alvarez seemed to live in a makebelieve world.6Alvarez was prosecuted under § 704(b) of the Stolen Valor Act in the District Court for the Central District of California for his false claim that he was awarded the Congressional Medal of Honor.7 The Stolen Valor Act makes it a crime to lie about receiving military decorations and carries an enhanced penalty for lying about receipt of the Congressional Medal of Honor.8 The Congressional Medal of Honor is the nation's highest military honor, awarded to members of the U.S. armed forces for exceptional heroism and bravery in combat.9 Alvarez entered a conditional guilty plea and reserved his right to challenge the Act's constitutionality.10 Alvarez was sentenced to three years probation, a $5000 fine, and 416 hours of community service.11The Stolen Valor Act is controversial because it imposes a fine and a criminal penalty of up to a year in prison simply for making a false statement about receiving a military decoration, either verbally or by wearing a medal.12 The First Amendment protects a speaker's right to express ideas, even false ideas or lies, without government interference.13 Except in limited categories defined by the U.S. Supreme Court as obscenity, defamation, fraud, incitement, or speech integral to criminal conduct, speech is presumptively protected by the First Amendment.14 The government must meet strict scrutiny in order to regulate speech protected under the First Amendment.15 The government has historically regulated false speech that causes harm, such as defamation, by allowing lawsuits with potential civil damages, but not criminal penalties.16 The Stolen Valor Act, which carries potential criminal sanctions, has been challenged by several defendants with varying success as an unconstitutional speech restriction.17The Stolen Valor Act seeks to address the perceived harm to veterans' honor and to the government caused by a person lying about receiving a military decoration.18 Through the Stolen Valor Act, the government attempts to preserve the honor of military decorations, in part to motivate military personnel to high levels of achievement.19 According to the government, the Stolen Valor Act is necessary to prevent the proliferation of false medals and false claims concerning military service.20In the 2010 case United States v. Alvarez, the U.S. Court of Appeals for the Ninth Circuit reversed Alvarez's disuict court conviction and held that the Stolen Valor Act is facially invalid under the First Amendment.21 The Ninth Circuit in Alvarez held that § 704(b) of the Stolen Valor Act regulates protected speech, does not meet strict scrutiny, is not narrowly drawn to achieve a compelling government interest, and is therefore unconstitutional.22 The Ninth Circuit worried about the Act's potential to set a precedent whereby the government may proscribe speech simply because it is false.23 On October 17, 2011, the Supreme Court granted certiorari to review the Ninth Circuit's decision in Alvarez 24In contrast to its decision in Alvarez that § 704(b) of the Stolen Valor Act warrants strict scrutiny, in the 2011 case United States v. …