Can the Federal Government Arrest You For Lying About Your Military Record?
On Wednesday, the Supreme Court will hear arguments on United States v. Alvarez, a case that challenges the Stolen Valor Act. I posted about this case back in October -- the Stolen Valor Act is a federal law that makes it a crime to falsely claim to have won military honors.
The case involves a minor politician in California who publicly claimed to have been a retired Marine, a wounded veteran, and the recipient of the Congressional Medal of Honor. But he was none of those things. The Ninth Circuit held that the Act violates the First Amendment’s protections of free speech. Although the Obama administration couldn't bring itself to defend the Defense of Marriage Act, it is going all out to get the Supreme Court to reverse, and uphold the Stolen Valor Act.
There's an excellent summary of the arguments pro and con over at SCOTUSblog. In a nutshell, the government is trying to convince SCOTUS to evaluate the law under "intermediate scutiny," which requires only that the government produce an "important" interest to abridge free speech, rather than a "compelling" interest.
Well, hey, I have nothing but contempt for anyone who falsely claims to be a decorated veteran, but balancing tests like "intermediate scutiny" are pure judicial inventions. The plain text of the First Amendment says that Congress shall make "no law" -- none whatsoever -- abriding free speech. The framers did not say that Congress can abridge free speech so long as it has a really "important" reason. This same kind of balancing test has been used repeatedly to uphold laws that forbid abortion protests in the vicinity of clinics. The framers accepted laws against libel, fraud, and perjury -- because all of those types of statements produce concrete harm.
No doubt, falsely claiming a military honor is an insult to all those who earned such honors. But is there any harm? The Administration argues that false claims undermine "morale, mission accomplishments, and esprit de corps within the military.” I'd like to hear if readers with military experience can opine on that argument -- I can't. But I do note that the same arguments, when made in the context of "don't ask, don't tell," were given short shrift by the Administration.