{"id":30557,"date":"2012-06-28T10:02:38","date_gmt":"2012-06-28T14:02:38","guid":{"rendered":"http:\/\/valorguardians.com\/blog\/?p=30557"},"modified":"2012-06-28T12:09:08","modified_gmt":"2012-06-28T16:09:08","slug":"stolen-valor-act-unconstitutional","status":"publish","type":"post","link":"https:\/\/www.azuse.cloud\/?p=30557","title":{"rendered":"Stolen Valor Act: UNCONSTITUTIONAL"},"content":{"rendered":"

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By a plurality the court ruled the Stolen UNCONSTITUTIONAL.<\/p>\n

I am currently going through the decision and the dissent(s) and will post relevant portions from them as the day progresses.<\/p>\n

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The Stolen Valor Act was ruled unconstitutional by a plurality decision of the Supreme Court today.\u00a0 As I go through the ruling I will have more information that I will post here.<\/p>\n

OK, so the way it broke down I felt was somewhat surprising.\u00a0 Thomas, Scalia and Alito were with us, as expected.\u00a0 But Roberts shifted over, which I had not expected.\u00a0 And so, our hope of a 5-4 win turned into a 6-3 loss when Kennedy joined Roberts on the other side as well.\u00a0 But, all is not lost, there is significant hope to be found even within a ruling that went against us.<\/p>\n

Before I leap into parts of it, I wanted to show you what the Scotusblog had to say about the case.\u00a0 ScotusBlog is written by lawyers and constitutional scholars, and lays it out better than I can<\/a>:<\/p>\n

Justice Kennedy announced a plurality opinion \u2013 joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor \u2013 and concluding that the Stolen Valor Act infringes on protected speech. The plurality reasoned that, with only narrow exceptions, content-based restrictions on speech face strict scrutiny, and are therefore almost always unconstitutional. False statements of fact do not fall within one of these exceptions, and so the Stolen Valor Act can survive strict scrutiny only if it is narrowly tailored to a compelling government interest. The Court concluded that the Stolen Valor Act is unconstitutional because the Government had not shown that the statute is necessary to protect the integrity of the system of military honors \u2013 the interest the Government had identified in support of the Act.<\/span><\/p>\n

Justice Breyer, joined by Justice Kagan, concurred separately, concluding that the Stolen Valor Act, as drafted, violates intermediate scrutiny. These Justices argued that intermediate scrutiny is the appropriate standard because the Government should have some ability to regulate false statements of fact. However, because the statute, as drafted, applies even in family, social, or other private contexts where lies will often cause little harm; it includes few other limits on its scope, and it creates too significant a burden on protected speech. The concurring Justices believe that the Government could achieve its goals in a less burdensome way, and so they too held the Stolen Valor Act unconstitutional.\u00a0 This opinion leaves open the possibility that Congress will re-write the law more narrowly. Three Justices, led by Justice Alito, dissented.<\/span><\/p><\/blockquote>\n

The main thing to take away from the Alvarez case is that the Supreme Court felt that the bill wasn’t sufficiently “narrowly tailored.”\u00a0 When dealing with anything that touches on a Constitutional Right, it has to be written as small in scope as possible, so that it avoids “chilling” speech which is protected.\u00a0 The Court felt that this statute was too broadly defined.\u00a0 But, it did hold out that other measures are available.\u00a0 I hate to start with a dissent, but Justice Alito ties together the opinion itself (Kennedy writing for the Chief Justice, Ginsburg and Sotomayor) with the concurring \u00a0opinion of Justice Breyer (and Kagen):<\/span><\/p>\n

The plurality and the concurrence also suggest that Congress could protect the system of military honors by enacting a narrower statute. The plurality recommends a law that would apply only to lies that are intended to \u201csecure moneys or other valuable considerations.\u201d Ante<\/em>, at 11. In a similar vein, the concurrence comments that \u201ca more finely tailored statute might . . . insist upon a showing that the false statement caused specific harm.\u201d Ante,<\/em>at 9 (opinion of BREYER, J.). But much damage is caused, both to real award recipients and to the system of military honors, by false statements that are not linked to any financial or other tangible reward. Unless even a small financial loss\u2014say, a dollar given to a homeless man falsely claiming to be a decorated veteran\u2014is more important in the eyes of the First Amendment than the damage caused to the very integrity of the military awards system, there is no basis for distinguishing between the Stolen Valor Act and the alternative statutes that the plurality and concurrence appear willing to sustain.<\/span><\/p><\/blockquote>\n

So, essentially what they are saying is that the bill needs to be written much like Fraud Statutes.\u00a0 This is already happening in part, as Congresman Joe Heck of Nevada has already authored one in HR 1775<\/a>:<\/span><\/span><\/p>\n

Heck offered a tacit endorsement of that ruling a few months later when he offered a new Stolen Valor Act that achieves almost the same ends as the one being challenged at the Supreme Court, while steering fully clear of the matter of speech.<\/span><\/p>\n

Heck\u2019s law makes it a crime to benefit from falsely claiming to have served in the military or have been decorated for that service.\u00a0 Individuals who knowingly lie \u201cwith intent to obtain anything of value\u201d would be subject to the same prison terms: Up to six months for basic lies about military service, and up to a year for lying about receiving the Medal of Honor, should those lies be told with the intention of gaining a job, a reward, or other thing of value.<\/span><\/p>\n

The bill doesn\u2019t specify exactly what \u201canything of value\u201d is, though a de minimis clause in the bill suggests it couldn\u2019t be applied if the thing procured by lying is of minimal value, such as a beer at a bar. The thing in question must also have a value that is quantifiable, so lies about military service told with the intention of getting the attention, a date, or something less gentlemanly with a person at that same bar is also likely <\/span>not prosecutable.<\/p><\/blockquote>\n

I will have more on this as I get through the reading, but keep getting interrupted with calls from the media.<\/span><\/span><\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

By a plurality the court ruled the Stolen UNCONSTITUTIONAL. I am currently going through the decision … Stolen Valor Act: UNCONSTITUTIONAL<\/span>Read more<\/a><\/p>\n","protected":false},"author":148,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-30557","post","type-post","status-publish","format-standard","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/posts\/30557","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/users\/148"}],"replies":[{"embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=30557"}],"version-history":[{"count":0,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/posts\/30557\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=30557"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=30557"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=30557"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}