567 U.S. 709 (2012), 11-210, United States v. Alvarez

Docket Nº:11-210
Citation:567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574, 80 U.S.L.W. 4634, 23 Fla.L.Weekly Fed. S 468
Opinion Judge:KENNEDY, Justice
Attorney:Donald B. Verrilli Jr. argued the cause for petitioner. Jonathan D. Libby argued the cause for respondent.
Judge Panel:Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C.J., and Ginsburg and Sotomayor, JJ., joined. Breyer, J., filed an opinion concurring in the judgment, in which Kagan, J., joined, post, p. 730. Alito, J., filed a dissenting opinion, in which Scalia and...
Case Date:June 28, 2012
Court:United States Supreme Court

Page 709

567 U.S. 709 (2012)

132 S.Ct. 2537, 183 L.Ed.2d 574, 80 U.S.L.W. 4634, 23 Fla.L.Weekly Fed. S 468




No. 11-210

United States Supreme Court

June 28, 2012

Argued February 22, 2012.


United States v. Alvarez, 617 F.3d 1198 (9th Cir. Cal., 2010)


[183 L.Ed.2d 581] [132 S.Ct. 2539] The Stolen Valor Act makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved. 18 U.S.C. § § 704(b), (c). Respondent pleaded guilty to a charge of falsely claiming that he had received the Medal of Honor, but reserved his right to appeal his claim that the Act is unconstitutional. The Ninth Circuit reversed, finding the Act invalid under the First Amendment.


The judgment is affirmed.

617 F.3d 1198, affirmed.

Justice Kennedy, joined by The Chief Justice, Justice Ginsburg, and Justice Sotomayor, concluded that the Act infringes upon speech protected by the First Amendment. Pp. 715-730, 183 L.Ed.2d, at 585-594.

[183 L.Ed.2d 582] (a) The Constitution " demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality." Ashcroft v.

American Civil Liberties Union, 542 U.S. 656, 660, 124 S.Ct. 2783, 159 L.Ed.2d 690.

Content-based restrictions on speech 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 the Government has the power to prevent.

Absent from these few categories is any general exception for false statements. The Government argues that cases such as Hustler Magazine, Inc. v.

Falwell, 485 U.S. 46, 52, 108 S.Ct. 876, 99 L.Ed.2d 41, support its claim that false statements have no value and hence no First Amendment protection. But all the Government's quotations derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement. In those decisions the falsity of the speech at issue was not irrelevant to the Court's analysis, but neither was it determinative. These prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.

Even when considering some instances of defamation or fraud, the Court has instructed that falsity alone may not suffice to bring the speech outside the First Amendment; the statement must be a knowing and reckless falsehood. See New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686.

Page 710

Here, the Government seeks to convert a rule that limits liability even in defamation cases where the law permits recovery for tortious wrongs into a rule that expands liability in a different, far greater realm of discourse and expression.

The Government's three examples of false-speech regulation that courts generally [132 S.Ct. 2540] have found permissible do not establish a principle that all proscriptions of false statements are exempt from rigorous First Amendment scrutiny. The criminal prohibition of a false statement made to Government officials in communications concerning official matters, 18 U.S.C. § 1001, does not lead to the broader proposition that false statements are unprotected when made to any person, at any time, in any context. As for perjury statutes, perjured statements lack First Amendment protection not simply because they are false, but because perjury undermines the function and province of the law and threatens the integrity of judgments. Finally, there are statutes that prohibit falsely representing that one is speaking on behalf of the Government, or prohibit impersonating a Government officer. These examples, to the extent that they implicate fraud or speech integral to criminal conduct, are inapplicable here.

While there may exist " some categories of speech that have been historically unprotected," but that the Court has not yet specifically identified or discussed, United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 1586, 176 L.Ed.2d 435 (2010), the Government has not demonstrated that false statements should constitute a new category. Pp. 715-722, 183 L.Ed.2d, at 585-590.

(b) The Act seeks to control and suppress all false statements on this [183 L.Ed.2d 583] one subject in almost limitless times and settings without regard to whether the lie was made for the purpose of material gain. Permitting the Government to decree this speech to be a criminal offense would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Pp. 722-723, 183 L.Ed.2d, at 590.

(c) The Court applies the " most exacting scrutiny" in assessing contentbased restrictions on protected speech. Turner Broadcasting System, Inc.

v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497. The Act does not satisfy that scrutiny. While the Government's interest in protecting the integrity of the Medal of Honor is beyond question, the First Amendment requires that there be a direct causal link between the restriction imposed and the injury to be prevented. Here, that link has not been shown. The Government points to no evidence supporting its claim that the public's general perception of military awards is diluted by false claims such as those made by respondent. And it has not shown, and cannot show, why counterspeech, such as the ridicule respondent received online and in the press, would not suffice to achieve its interest.

Page 711

In addition, when the Government seeks to regulate protected speech, the restriction must be the " least restrictive means among available, effective alternatives." Ashcroft, supra, at 666, 124 S.Ct. 2783, 159 L.Ed.2d 690. Here, the Government could likely protect the integrity of the military awards system by creating a database of medal recipients accessible and searchable on the Internet, as some private individuals have already done. Pp. 724-729, 183 L.Ed.2d, at 591-594.

Justice Breyer, joined by Justice Kagan, concluded that because the Stolen Valor Act, as presently drafted, works disproportionate constitutional harm, it fails intermediate scrutiny, and thus violates the First Amendment. Pp. 730-739, 183 L.Ed.2d, at 595-600.

(a) In determining whether a statute violates the First Amendment, the Court has often found it appropriate to examine the fit between statutory ends and means, taking into account the seriousness of the speech-related harm the provision will likely cause, the nature and importance of the provision's countervailing objectives, the [132 S.Ct. 2541] extent to which the statute will tend to achieve those objectives, and whether there are other, less restrictive alternatives. " Intermediate scrutiny" describes this approach. Since falsefactual statements are less likely than true factual statements to make a valuable contribution to the marketplace of ideas, and the government often has good reason to prohibit such false speech, but its regulation can threaten speech-related harm, such an approach is applied here. Pp. 730-732, 183 L.Ed.2d, at 595-596.

(b) The Act should be read as criminalizing only false factual statements made with knowledge of their falsity and with intent that they be taken as true. Although the Court has frequently said or implied that false factual statements enjoy little First Amendment protection, see, e.g.,

Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 41 L.Ed.2d 789, those statements cannot be read to mean " no protection at all." False factual statements serve useful human [183 L.Ed.2d 584] objectives in many contexts. Moreover, the threat of criminal prosecution for making a false statement can inhibit the speaker from making true statements, thereby " chilling" a kind of speech that lies at the First Amendment's heart. See id., at 340-341, 94 S.Ct. 2997, 41 L.Ed.2d 789. And the pervasiveness of false factual statements provides a weapon to a government broadly empowered to prosecute falsity without more. Those who are unpopular may fear that the government will use that weapon selectively against them.

Although there are many statutes and common-law doctrines making the utterance of certain kinds of false statements unlawful, they tend to be narrower than the Act, in that they limit the scope of their application in various ways, for example, by requiring proof of specific harm to identifiable victims. The Act lacks any such limiting features. Although it prohibits only knowing and intentional falsehoods about readily verifiable facts within the personal knowledge of the speaker, it

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otherwise ranges broadly, and that breadth means that it creates a significant risk of First Amendment harm. Pp. 732-737, 183 L.Ed.2d, at 596-599.

(c) The Act nonetheless has substantial justification. It seeks to protect the interests of those who have sacrificed their health and life for their country by seeking to preserve intact the country's recognition of that sacrifice in the form of military honors. P. 737, 183 L.Ed.2d, at 599.

(d) It may, however, be possible substantially to achieve the Government's objective in less burdensome ways. The First Amendment risks flowing from the Act's breadth of coverage could be diminished or eliminated by a more finely tailored statute, for example, a statute that requires a showing that the false statement caused specific harm or is focused on lies more likely to be harmful...

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