Free Speech Has Costs; or Not

Congress shall make no law...abridging the freedom of speech...” Constitution of the United States, First Amendment

There are many Supreme Court decisions relating to free speech and most come down on the side that the government must not pick favorites in the battles over ideas. We know that there are limits to free speech and the example often used is that you cannot yell “fire” in a crowded theater as that may lead to injuries or death in the stampede to the exits. Speech in this setting is not related to the expression of an idea and it may have a detrimental effect on public safety so, even using a strict scrutiny standard, this is not protected speech.

What about speech that is clearly offensive? Burning the flag, not standing for the national anthem, and calling political opponents nasty names all come to mind, but these are all forms of protected speech and as offensive as the speech may be, our history is consistent in allowing these expressions.

What about lying? If you lie in court while under oath, you can be charged with perjury and, if convicted, put in jail. This is probably related to the necessity of truthful testimony for our judicial system to work. There are other examples where restrictions on free speech are permitted and all are predicated on the notion that there is harm associated with the speech.

What about people who make a false claim that they received a medal authorized by Congress for meritorious actions, usually while in combat? Clearly, these false claims may be harmful to rightful award winners and may be harmful to those who are competing with those making the false claims either in business endeavors or political contests. Even George Washington who awarded honors to those who went beyond the call of duty during the Revolutionary War recognized that there would be some who claimed the awards falsely. He warned that those making such false claims would be severly punished (General Orders of George Washington Issued at Newburgh on the Hudson).

Speech intended to cause imminent illegal action (Brandenburg v. Ohio, 395 U.S. 444 (1969)), obscenity (Miller v. California, 413 U.S. 15 (1973)), defamation (New York Times v. Sullivan, 376 U.S. 254 (1964)), “fighting words” Chaplinsky v. New Hampshire, 315 U.S. 568)), fraud (statutes require proof that the misrepresentation was relied on by the victim and an actual injury occurred), child pornography (New York v. Ferber, 458 U.S. 747 (1982)), actual threats (Watts v. United States, 394 U.S. 705 (1969)), and speech relating to an imminent threat to our government (Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931)), have all been held to be outside the protections of the First Amendment. All of these opinions are consistent with the notion that the speech is associated with demonstrable harm either to the government or some people.

Due to the ever increasing number of people claiming medals that they never earned, Congress passed the Stolen Valor Act which made it a misdemeanor to falsely claim receipt of a military decoration or medal; there is an enhanced penalty if the Congressional Medal of Honor is claimed.

But the case of United States versus Alvarez, 132 S. Ct. 2537 (2012), shows that if a law is written too vaguely and the harm claimed is too nebulous, then the law will not pass constitutional muster.

Xavier Alvarez was charged with violating the Stolen Valor Act. Alvarez made the false claim that he had been awarded the Congressional Medal of Honor. He also claimed that he was a retired marine and he had been wounded many times in battle. None of these claims was true. In fact, Justice Kennedy, in his written Supreme Court opinion pointed out that “[L]ying was his habit” when describing Alvarez.

Under the Act, Alvarez could have been fined and put in jail for up to a year; this was consistent with the enhanced penalty since the Congressional Medal of Honor was at issue.

Alvarez pleaded guilty so he was convicted of violating the Act. With the pleading, he reserved his right for appeal based on a claim that the Act was unconstitutional. The appeal went to the Ninth Circuit and they reversed; they agreed that the Act was unconstitutional under the First Amendment.

The Supreme Court agreed to hear the case and they affirmed the Ninth Circuit decision. Recognizing that the government had a legitimate reason in making the law— to protect the honor of deserving award recipients— the Court majority concluded that there was no general exception to the First Amendment for false statements without something more. Previous Court decisions related to free speech protections have consistently held that in order to lose the protection, there must be recognizable harm emanating from the false statement. The Court concluded that the Stolen Valor Act was just too broad and would allow the government to prosecute even when this type of speech was not harmful in any way. Plus, in this case, the Court felt there would be other ways to combat the lie without resorting to government punishment. These less restrictive means were felt to be more consistent with the strict scrutiny standards required to override the freedoms emanating from the First Amendment.

Even though there could be harm to legitimate medal winners who may be competing for jobs or running for political office, the Court felt the Act, as written, was just too broad. In dicta, Kennedy, writing for the plurality, felt that the Congress could meet their desired objective by writing the statute in a narrowly tailored way. For example, the government could provide a list, easily accessible on the internet, of legitimate medal winners which can then be used to identify the charlatans. Also, there must be some identifiable harm or effect on materiality in order to overcome the First Amendment protections. These elements were missing from the Act.

The history of free speech jurisprudence has many instances where statutes and common-law holdings have made certain kinds of false statements unlawful and not protected by the First Amendment. As mentioned above, perjury statutes make false statements given under oath and material to the issue under litigation punishable. There are other statutes that make it unlawful to lie to any government official when the lie is likely to cause a specific harm by interfering with a government department; these statutes also require a showing that the lie had materiality, meaning that it was not harmless. “No harm; no foul” has meaning in these types of prosecutions.

In writing for the majority, Justice Kennedy said that “[Alvarez’s] statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.” (United States v. Alvarez)

The Supreme Court decision did go into the exceptions listed above to point out that telling a lie is not enough to lose First Amendment protections; there must also be some specific harm likely to occur as a result of the lie.

The dissent and some of the majority felt there were specific harms to justify convicting Alvarez. There are incidents where false claims of valor were used to get financial gain and these types of claims are what led to the formulation of the law in the first place. However, these examples were lacking in the government’s arguments to uphold the statute.

With this decision, Congress will have to rewrite the Stolen Valor Act in such a way as to limit the prosecutions to those cases where specific harm is demonstrated and a mens rea component (a knowing attempt to cause harm) is proven. In the meantime, those who falsely claim military honors can only be held to account in the court of public opinion.

Dr. Weiman is the author of Medical Malpractice and Fundamental Issues in Health Care Law

Dr. Weiman’s website is

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