Supreme Court Decision on Stolen Valor Act Promotes Free Expression
The Supreme Court decided in favor of free expression on Thursday by striking down the 2006 Stolen Valor Act. Passed by Congress to “protect the reputation and meaning” of military honors, the act criminalized lying about receiving military medals. At first glance, the legislation certainly might appear to be a modest attempt to prevent reprehensible behavior. The facts of the case, which rose to the Supreme Court, are cringe-worthy: Xavier Alvarez, a member of a California water district board, lied about having received a Congressional Medal of Honor. However, there is a difference between shameful behavior and criminal behavior. The Stolen Valor Act cut against almost four decades of established precedent. Our free speech regime, according to the judgment, only allows the government to restrict speech such as “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.” Under the broadly-worded Stolen Valor Act, a grandfather boasting to his granddaughter at a birthday party about receiving a military honor would be equally as punishable as Mr. Alvarez. In a society that is oiled by white lies as well as truth, the Supreme Court justices found this to be a slippery slope. The government also failed to prove who suffers when such a lie is told, a necessary element in imposing speech restrictions. For PEN, the issue had echoes of some of the defamation cases we have confronted overseas, where governments have tried to penalize speech deemed offensive to abstract entities or constitutions, as when the Turkish government threatened to jail writers for “insulting Turkishness” or the Turkish military. In signing on to the Amicus brief by the Media Coalition, PEN did not dispute the idea that military honors have value, but rather that lying about having received these honors somehow diminishes the institution of the award. Moreover, enforcing the Stolen Valor Act would pave the way for the government to enforce the truth, as the brief notes:
Fear of public exposure, rather than fear of criminal sanction, is the inducement to truth on which the Constitution requires us to rely outside of the traditional First Amendment exceptions such as fraud, defamation, and perjury.
The universal solvent of falsity is truth. According to Media Coalition director David Horowitz, “the best way to counter false speech is always more speech—not censorship, and certainly not criminal prosecution.”