Truth to tell, the Stolen Valor Act is unconstitutional

David B. Rivkin Jr. and Bruce Brown are partners in the Washington office of Baker Hostetler. Brown filed an amicus brief against the constitutionality of the Stolen Valor Act on behalf of the Thomas Jefferson Center for the Protection of Free Expression.

While we hold the military’s honor sacred, the government cannot penalize speech, whether true or false, simply because it might harm this honor.

Any law that seeks to protect the government’s reputation runs afoul of the most basic bargain of sovereignty, reflected in our Constitution. James Madison said, “The censorial power is in the people over the Government, and not in the Government over the people.” In this context, it is doubtful that the government can ever be libeled by a citizen, any more than a citizen can libel himself. We don’t let the government sue for libel — only individual officials. And even if the government could be libeled, the First Amendment forbids laws banning speech that challenges or impugns the government’s reputation.

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The 2006 Stolen Valor Act, which makes it a crime to falsely hold oneself as the recipient of military decorations, is challenging these precepts anew. Unfortunately, if the recent oral argument at the Supreme Court is a guide, the basis of the law’s unconstitutionality is being misconstrued and the act might survive.

The government realized that defending the statute as written was a losing proposition so it sought to recast it to bar only those falsehoods meant to be taken as statements of fact. It highlighted the compelling nature of the interest the law serves, positing that the military honor system performs a vital role in fostering the armed forces’ esprit de corps and combat effectiveness.

This claim has prompted many scholars to cite the “chilling effect” analysis often invoked in First Amendment cases. This assumes that the statute being challenged features a constitutionally permissible restriction on some type of expression, due to the existence of a compelling government interest, and that the only question is whether that restriction will lead to self-censorship of other speech the government cannot proscribe.

Meanwhile, opponents of the act claim the case is about the generic “right to lie.” The government, they argue, is a bad arbiter of truth and can’t be trusted to pick out liars, and government bans of any lies are likely to have the broad chilling effect. The Supreme Court should protect the right to lie across-the-board, they say.

But government referees truth-telling all the time and the Supreme Court has never protected deliberate lies.

The problem with this entire approach was highlighted during oral argument last month when Justice Elena Kagan asked, “What truthful speech will this statute chill?” The lawyer attacking the act replied: “It’s not that it may necessarily chill any truthful speech.”

Many legal commentators saw a blunder in the making. (Indeed, Kagan called the answer “a big concession.”) Yes, the Stolen Valor Act is unlikely to take anything of great value from public discourse — and this still does not mean that the law is not constitutionally repugnant.

The act has to go because, as the government has repeatedly acknowledged, its sole purpose has been to defend the interests of the military as an institution. The military honor system is vital to upholding morale and motivating combat performance, the government argues, and the dilution of the reputation and meaning of military declarations is particularly damaging in wartime. The government also explicitly denied in its Supreme Court briefs that the act was designed to prevent “harm to medal recipients’ reputation or honor.”