Supreme Court Review Of Stolen Valor Act?
Perhaps because I spent the 10th anniversary of 9-11 thinking about the courage of our soldiers and first responders, this story caught my eye today. I’m not sure what is more unbelievable – the fact that people lie about their military service or the fact that it’s apparently so prevalent that Congress passed a law to address it. In any event, in 2005 Congress passed the Stolen Valor Act, which makes it a crime to lie about having received a medal or military honor. Presumably, however, it is not a crime for me to continue to lie about my basketball skills back in the day. And that actually raises a constitutional issue. Does the SVA violate the First Amendment? The US Court of Appeals for the Ninth Circuit has ruled that it does. So the Department of Justice is asking the Supreme Court to weigh in. It’s an interesting question. On the one hand, content based regulations typically receive what is called strict scrutiny. And the SVA is content based – it’s a crime based on what you lie about. On the other hand, courts have held that false speech is typically not entitled to First Amendment protection. But the Ninth Circuit points out that in most cases, courts punish false speech not just because it is false, but because there is something more. So, for instance, defamation creates liability only if it harms another person’s reputation, and if the statement is false. Likewise, fraud is actionable only if the victim suffers some sort of loss, based on the false statement. But the SVA punishes the lie, with no showing of harm to anyone. I hope the Supreme Court takes the case. But like most tough cases, for me anyway, I’m not sure which way it will (or should) go.