Washington, DC (June 28, 2012) – The Stolen Valor Act of 2005 (18 U.S.C. § 704(b)) made it a federal crime to lie about having received military decorations or medals. In a plurality opinion authored by Justice Anthony M. Kennedy and joined by Chief Justice John G. Roberts, Jr., Justice Ruth Bader Ginsburg, and Justice Sonia Sotomayor, the Supreme Court in U.S. v. Alvarez, No. 11-210,affirmed the Ninth Circuit Court of Appeals and found that “The Stolen Valor Act infringes upon speech protected by the First Amendment[,]” and as such it is unconstitutional. In a separate opinion, Justice Stephen G. Breyer and Justice Elena Kagan concurred in the judgment of the plurality while not resting that conclusion “upon a strict categorical analysis.” Instead, Justices Breyer and Kagan found that the Act fails intermediate scrutiny but might survive constitutional muster were it to be redrafted as a “more finely tailored statute.”
In this case, there was no dispute as to whether Mr. Alvarez lied about having received a Congressional Medal of Honor. But as the plurality explained, “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression.”
“Here we have another example of how legislatures in recent decades have come to view the instrument of the criminal law as the answer to every perceived transgression in American society,” explained NACDL President Lisa Wayne. “Today’s decision in Alvarez rejecting this law is not only a victory for the First Amendment, but it is an important step in the efforts of many across the political spectrum to roll back what has become a crisis of overcriminalization in our nation.”
NACDL filed an amicus curiae brief in Alvarez arguing that the Stolen Valor Act’s false claims provision, 18 U.S.C. § 704 (b), is unconstitutionally overbroad because it punishes speech protected under the First Amendment such as innocent mistakes, harmless misrepresentations, purely private speech, jokes, satire, and dramatic claims. Moreover, NACDL argued that the offense lacks a criminal intent, or mens rea, requirement and the supposed harm it protects against is not supported by a substantial government interest and, as such, is a classic example of federal overcriminalization. That brief was authored by Michael V. Schafler and Jeffery M. Chemerinsky, Caldwell Leslie & Proctor PC, Los Angeles, CA, and Jeffrey L. Fisher of Stanford, CA. A copy of NACDL’s amicus curiae brief is available here.
Indeed, the Stolen Valor Act of 2005 was one of the Congressional enactments lacking an adequate criminal intent analyzed in a groundbreaking report issued by NACDL and The Heritage Foundation, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.
A copy of the Supreme Court opinion in Alvarez is available here.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.