JURIST Assistant Editor Kimberly Bennett, University of Pittsburgh School of Law Class of 2014, argues that the Stolen Valor Act is a piece of wartime legislation that is not the least restrictive means of furthering the government’s interest and, as such, should be overturned… (Her opinions are not intended to represent those of JURIST)

The US Court of Appeals for the Ninth Circuit ruled on August 17, 2010, that the Stolen Valor Act is unconstitutional in United States v. Alvarez. The defendant Xavier Alvarez claimed to be a Marine and a recipient of the US Congressional Medal of Honor. Both of these statements were lies. On October 17, 2011, the US Supreme Court granted certiorari [PDF], agreeing to hear the case to determine the constitutionality of the act. The Stolen Valor Act makes it a federal misdemeanor to falsely represent oneself as having received a military honor or decoration. Persons in violation of the act may face a fine and imprisonment up to a year. This case will determine whether the Stolen Valor Act violates free speech rights under the First Amendment.

The Stolen Valor Act was signed into law by President George W. Bush on December 20, 2006, just over three years after the start of the Iraq War and five years after the start of the war in Afghanistan. As with any legislation passed during a time of war, such as the USA Patriot Act and the Military Commissions Act of 2006 before it, the judiciary must be careful to examine this act under a constitutional scrutiny that does not overly defer to executive and military interests, and maintains civil rights. Critics of such wartime legislation argue that it was passed opportunistically, leaving little room for debate. This was seen in the passage of the Patriot Act, which arguably violates the Fourth Amendment, where members of Congress have said that they did not have time to even read the bill in the wake of 9/11. Now that the Iraq War has formally ended, Alvarez gives the judiciary the occasion to examine this legislation without the influence of the war. The discussion of checks on both legislative and executive power in a time of war has been the subject of ongoing debate. As history has demonstrated, national emergencies have led to bad law. For this reason, it is imperative that the judiciary use its power to determine that the Stolen Valor Act unconstitutionally infringes on our constitutional right to free speech.

While the controversial provisions of the Patriot Act have yet to be visited by the Supreme Court, Hamdi v. Rumsfeld provides an example of hastily passed wartime legislation that was struck down for violating the constitutional right to due process. One week after the terrorist attacks of 9/11, Congress passed a resolution entitled the Authorization for Use of Military Force (AUMF). The Act authorized the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Suspecting that Hamdi was involved in terrorist activities while in Afghanistan, the government detained him without adhering to due process requirements, relying on the language of the AUMF to deem his detention “necessary and appropriate.” Finding the detention unlawful, the Court ruled that Congress’s grant of authority does not supersede the constitutional requirements of due process, acknowledging, however, that in some instances of emergency there might be reason to suspend constitutionally protected rights.

This case crucially demonstrates the absolute need for judicial review of wartime legislation. In Hamdi the government had a legitimate interest in protecting the national security of our nation. However, the government was unable to establish the “emergency” situation that would have warranted contravention of the Due Process Clause. Similarly, in Alvarez, while the government alleges that it has a legitimate interest in protecting the honor of those that serve our country, as in Hamdi, it cannot prove the existence of an emergency situation that warrants the suspension of free speech, nor can it prove that this is the least restrictive means of furthering the government’s alleged interest.

Echoing the holding of Hamdi, the Supreme Court in Boumediene v. Bush also determined that habeas corpus rights are only to be suspended under careful interpretation of the Suspension Clause. This case analyzes the constitutionality of the Military Commissions Act, which was drafted in response to the holding in Hamdi. The act denies jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants for any alien detained after September 11, 2011. The Supreme Court struck down these provisions, finding that the petitioners had the constitutional privilege of habeas corpus. Accordingly, they were not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated enemy combatants or because of their presence at Guantanamo Bay. However, in this case, the Supreme Court expanded its reasoning by pointing to the intent of the Framers of the Constitution. The Court states, “[t]hat the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension.” The Court goes on to conclude that a holding to the contrary would be inconsistent with the principle of separation of powers, stating that, “[t]o hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.”

Both Hamdi and Boumediene demonstrate the level to which constitutional rights are protected, even during trying times. If a fundamental right is to be denied through legislation, the government must demonstrate that the contravention of said right comports with the the requirements that have been set out for its denial. Our laws must be enacted and executed in accordance with the Constitution, and in some instances of ambiguity looking to the intent of the Framers can be particularly instructive. In Alvarez, the limits to the fundamental right of free speech are questioned. And, with respect to free speech, Benjamin Franklin, one of the Framers of the Constitution, made very clear his view of the importance of unrestricted free speech, contending that:

Misrepresentation of publick Measures is easily overthrown, by representing publick Measures truly; when they are honest, they ought to be publickly known, that they may be publickly commended; but if they are knavish or pernicious, they ought to be publickly exposed, in order to be publickly detested.

Free speech should, therefore, be broadly protected unless it falls within the well-defined historical and traditional categories that have been carved out for its derogation.

Content-based speech is subject to strict scrutiny unless it falls into a narrow class of speech that has been historically defined, and which is comprised of: libel, defamation and slander. The speech prohibited in Alvarez, lying about winning military honors, does not fall within these well-defined categories. For this reason, the government must demonstrate that the act passes strict-scrutiny, which is to say that it must demonstrate that it has a legitimate interest and that the legislation is narrowly tailored to achieve that interest by the least restrictive means possible. The aforementioned types of speech require an element of malice, which Alvarez’s false statements lack. Thus, the lies that Alvarez told must not be compared to the type of false or fraudulent speech that is independently punishable.

Though the interest in protecting the honor of the military may be compelling, to withstand strict scrutiny, the interest must be achieved using the least restrictive means necessary. The government in Alvarez must uphold the free speech right protected under the First Amendment. If the government wants to protect the honor of the military, the Stolen Valor Act must be rewritten in a way that does not so broadly infringe on the right to free speech. Laws against fraud typically include an element of intentional deception for one’s own personal gain. Rewriting the act to include a harm element, so that it more closely resembles laws against fraudulent speech, could be a solution. Additionally, if the government eliminates the act altogether, we could still protect military honor by reallocating the money currently spent on enforcement of the act to the creation of mechanisms that would more easily allow for the verification of the recipients of Congressional Medals of Honor. In light of the previous jurisprudence, it is clear that the act cannot pass strict scrutiny because there are means of protecting military honor that infringe to a far lesser extent on the constitutionally protected right of free speech.

In conclusion, unless it can be done by the least restrictive means necessary and/or there is an emergency situation that warrants it, government interests in protecting national security and patriotism must not chill the exercise or protection of our fundamental rights. The Supreme Court must strike down this type of wartime legislation, for it strikes at the values we have held most closely as a nation. The Framers of the Constitution did not intend for our fundamental rights to be eroded, whether our nation is in a time of conflict or peace. The judicial function of checking the constitutionality of legislative action must continue if we are to uphold the very values we have fought for and continue to fight for.

Kimberly Bennett is an Assistant Editor for JURIST’s Social Media and Archives services. She holds a undergraduate degree in Spanish and Political Science, and a Certificate in Latin American Studies from the University of Pittsburgh. She is studying international human rights and civil rights law at the University of Pittsburgh School of Law.

Suggested citation: Kimberly Bennett, Overturning the Stolen Valor Act to Preserve Free Speech, JURIST – Dateline, Feb. 22, 2012, http://jurist.org/dateline/2012/02/kimberly-bennett-stolen-valor.php.