UNITED STATES v. ALVAREZ

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 11–210

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UNITED STATES, PETITIONER v. XAVIER ALVAREZ

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 28, 2012]

Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Ginsburg, and Justice Sotomayor join.

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Con-gressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U. S. C. §704.

In 2007, respondent attended his first public meeting as a board member of the Three Valley Water District Board. The board is a governmental entity with headquarters in Claremont, California. He introduced himself as follows: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” 617 F. 3d 1198, 1201–1202 (CA9 2010). None of this was true. For all the record shows, respondent’s statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.

Respondent was indicted under the Stolen Valor Act for lying about the Congressional Medal of Honor at the meeting. The United States District Court for the Central District of California rejected his claim that the statute is invalid under the First Amendment. Respondent pleaded guilty to one count, reserving the right to appeal on his First Amendment claim. The United States Court of Appeals for the Ninth Circuit, in a decision by a divided panel, found the Act invalid under the First Amendment and reversed the conviction. Id., at 1218. With further opinions on the issue, and over a dissent by seven judges, rehearing en banc was denied. 638 F. 3d 666 (2011). This Court granted certiorari. 565 U. S. ___ (2011).

After certiorari was granted, and in an unrelated case, the United States Court of Appeals for the Tenth Circuit, also in a decision by a divided panel, found the Act constitutional. United States v. Strandlof, 667 F. 3d 1146 (2012). So there is now a conflict in the Courts of Appeals on the question of the Act’s validity.

This is the second case in two Terms requiring the Court to consider speech that can disparage, or attempt to steal, honor that belongs to those who fought for this Nation in battle. See Snyder v. Phelps, 562 U. S. ___ (2011) (hateful protests directed at the funeral of a serviceman who died in Iraq). Here the statement that the speaker held the Medal was an intended, undoubted lie.

It is right and proper that Congress, over a century ago, established an award so the Nation can hold in its highest respect and esteem those who, in the course of carrying out the “supreme and noble duty of contributing to the defense of the rights and honor of the nation,” Selective Draft Law Cases, 245 U. S. 366, 390 (1918) , have acted with extraordinary honor. And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.

The Government contends the criminal prohibition is a proper means to further its purpose in creating and awarding the Medal. When content-based speech regulation is in question, however, exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment. By this measure, the statutory provisions under which respondent was convicted must be held invalid, and his conviction must be set aside.

I

Respondent’s claim to hold the Congressional Medal of Honor was false. There is no room to argue about in-terpretation or shades of meaning. On this premise, respondent violated §704(b); and, because the lie concerned the Congressional Medal of Honor, he was subject to an enhanced penalty under subsection (c). Those statutory provisions are as follows:

“(b) False Claims About Receipt of Military Decorations or Medals.––Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States . . . shall be fined under this title, imprisoned not more than six months, or both.

“(c) Enhanced Penalty for Offenses Involving Congressional Medal of Honor.––

“(1) In General.––If a decoration or medal involved in an offense under subsection (a) or (b) is a Congressional Medal of Honor, in lieu of the punishment provided in that subsection, the offender shall be fined under this title, imprisoned not more than 1 year, or both.”

Respondent challenges the statute as a content-based suppression of pure speech, speech not falling within any of the few categories of expression where content-based regulation is permissible. The Government defends the statute as necessary to preserve the integrity and purpose of the Medal, an integrity and purpose it contends are compromised and frustrated by the false statements the statute prohibits. It argues that false statements “have no First Amendment value in themselves,” and thus “are protected only to the extent needed to avoid chilling fully protected speech.” Brief for United States 18, 20. Al-though the statute covers respondent’s speech, the Government argues that it leaves breathing room for pro-tected speech, for example speech which might criticize the idea of the Medal or the importance of the military. The Government’s arguments cannot suffice to save the statute.

II

“[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). As a result, the Constitution “demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality.” Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 660 (2004) .

In light of the substantial and expansive threats to free expression posed by content-based restrictions, this Court has rejected as “startling and dangerous” a “free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.” United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 7). Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “ ‘historic and traditional categories [of expression] long familiar to the bar,’ ” Id., at ___ (slip op., at 5) (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)). Among these categories are advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam); obscenity, see, e.g., Miller v. California, 413 U. S. 15 (1973) ; defamation, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (providing substantial protection for speech about public figures); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (imposing some limits on liability for defaming a private figure); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949) ; so-called “fighting words,” see Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) ; child pornography, see New York v. Ferber, 458 U. S. 747 (1982) ; fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) ; true threats, see Watts v. United States, 394 U. S. 705 (1969) (per curiam); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931) , although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam). These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules.

Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private con-versation, expression the First Amendment seeks to guarantee. See Sullivan, supra, at 271 (“Th[e] erroneous statement is inevitable in free debate”).

The Government disagrees with this proposition. It cites language from some of this Court’s precedents to support its contention that false statements have no value and hence no First Amendment protection. See also Brief for Eugene Volokh et al. as Amici Curiae 2–11. These isolated statements in some earlier decisions do not support the Government’s submission that false statements, as a general rule, are beyond constitutional protection. That conclusion would take the quoted language far from its proper context. For instance, the Court has stated “[f]alse statements of fact are particularly valueless [because] they interfere with the truth-seeking function of the marketplace of ideas,” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 52 (1988) , and that false statements “are not protected by the First Amendment in the same manner as truthful statements,” Brown v. Hartlage, 456 U. S. 45 –61 (1982). See also, e.g., Virginia Bd. of Pharmacy, supra, at 771 (“Untruthful speech, commercial or otherwise, has never been protected for its own sake”); Herbert v. Lando, 441 U. S. 153, 171 (1979) (“Spreading false information in and of itself carries no First Amendment credentials”); Gertz, supra, at 340 (“[T]here is no constitutional value in false statements of fact”); Garrison v. Louisiana, 379 U. S. 64, 75 (1964) (“[T]he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection”).

These quotations all derive from cases discussing def-amation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation. See Brief for United States 18–19. In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.

Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood. See Sullivan, supra, at 280 (prohibiting recovery of damages for a defamatory falsehood made about a public official unless the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not”); see also Garrison, supra, at 73 (“[E]ven when the utterance is false, the great principles of the Constitution which secure freedom of expression . . . preclude attaching adverse consequences to any except the knowing or reckless falsehood”); Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 620 (2003) (“False statement alone does not subject a fundraiser to fraud liability”).

The Government thus seeks to use this principle for a new purpose. It seeks to convert a rule that limits liability even in defamation cases where the law permits recovery for tortious wrongs into a rule that expands liability in a different, far greater realm of discourse and expression. That inverts the rationale for the exception. The requirements of a knowing falsehood or reckless disregard for the truth as the condition for recovery in certain defamation cases exists to allow more speech, not less. A rule designed to tolerate certain speech ought not blossom to become a rationale for a rule restricting it.

The Government then gives three examples of regulations on false speech that courts generally have found per-missible: first, the criminal prohibition of a false statement made to a Government official, 18 U. S. C. §1001; second, laws punishing perjury; and third, prohibi-tions on the false representation that one is speaking as a Government official or on behalf of the Government, see, e.g., §912; §709. These restrictions, however, do not establish a principle that all proscriptions of false statements are exempt from exacting First Amendment scrutiny.

The federal statute prohibiting false statements to Government officials punishes “whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government . . . makes any mate-rially false, fictitious, or fraudulent statement or repre-sentation.” §1001. Section 1001’s prohibition on false statements made to Government officials, in communications concerning official matters, does not lead to the broader proposition that false statements are unprotected when made to any person, at any time, in any context.

The same point can be made about what the Court has confirmed is the “unquestioned constitutionality of perjury statutes,” both the federal statute, §1623, and its state-law equivalents. United States v. Grayson, 438 U. S. 41, 54 (1978) . See also Konigsberg v. State Bar of Cal., 366 U. S. 36 , n. 10 (1961). It is not simply because perjured statements are false that they lack First Amendment protection. Perjured testimony “is at war with justice” because it can cause a court to render a “judgment not resting on truth.” In re Michael, 326 U. S. 224, 227 (1945) . Perjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system. See United States v. Dunnigan, 507 U. S. 87, 97 (1993) (“To uphold the integrity of our trial system . . . the constitutionality of perjury statutes is unquestioned”). Unlike speech in other contexts, testi-mony under oath has the formality and gravity necessary to remind the witness that his or her statements will be the basis for official governmental action, action that often affects the rights and liberties of others. Sworn testimony is quite distinct from lies not spoken under oath and sim-ply intended to puff up oneself.

Statutes that prohibit falsely representing that one is speaking on behalf of the Government, or that prohibit im-personating a Government officer, also protect the integrity of Government processes, quite apart from merely restricting false speech. Title 18 U. S. C. §912, for ex-ample, prohibits impersonating an officer or employee of the United States. Even if that statute may not require proving an “actual financial or property loss” resulting from the deception, the statute is itself confined to “maintain[ing] the general good repute and dignity of . . . government . . . service itself.” United States v. Lepowitch, 318 U. S. 702, 704 (1943) (internal quotation marks omitted). The same can be said for prohibitions on the unauthorized use of the names of federal agencies such as the Federal Bureau of Investigation in a manner calculated to convey that the communication is approved, see §709, or using words such as “Federal” or “United States” in the collection of private debts in order to convey that the communication has official authorization, see §712. These examples, to the extent that they implicate fraud or speech integral to criminal conduct, are inapplicable here.

As our law and tradition show, then, there are instances in which the falsity of speech bears upon whether it is protected. Some false speech may be prohibited even if analogous true speech could not be. This opinion does not imply that any of these targeted prohibitions are somehow vulnerable. But it also rejects the notion that false speech should be in a general category that is presumptively unprotected.

Although the First Amendment stands against any “freewheeling authority to declare new categories of speech outside the scope of the First Amendment,” Stevens, 559 U. S., at ___ (slip op., at 9), the Court has acknowledged that perhaps there exist “some categories of speech that have been historically unprotected . . . but have not yet been specifically identified or discussed . . . in our case law.” Ibid. Before exempting a category of speech from the normal prohibition on content-based re-strictions, however, the Court must be presented with “per-suasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription,” Brown v. Entertainment Merchants Assn., 564 U. S. ___, ___ (2011) (slip op., at 4). The Government has not demonstrated that false statements generally should constitute a new category of unprotected speech on this basis.

III

The probable, and adverse, effect of the Act on freedom of expression illustrates, in a fundamental way, the reasons for the Law’s distrust of content-based speech prohibitions.

The Act by its plain terms applies to a false statement made at any time, in any place, to any person. It can be assumed that it would not apply to, say, a theatrical performance. See Milkovich v. Lorain Journal Co., 497 U. S. 1, 20 (1990) (recognizing that some statements nominally purporting to contain false facts in reality “cannot reasonably be interpreted as stating actual facts about an individual” (internal quotation marks and brackets omitted)). Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so en-tirely without regard to whether the lie was made for the purpose of material gain. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 –540 (1987) (prohibiting a nonprofit corporation from exploiting the “commercial magnetism” of the word “Olym-pic” when organizing an athletic competition (internal quotation marks omitted)).

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

IV

The previous discussion suffices to show that the Act conflicts with free speech principles. But even when examined within its own narrow sphere of operation, the Act cannot survive. In assessing content-based restrictions on protected speech, the Court has not adopted a free-wheeling approach, see Stevens, 559 U. S., at ___ (slip op., at 7) (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits”), but rather has applied the “most exacting scrutiny.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994) . Although the objectives the Government seeks to further by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny.

The Government is correct when it states military medals “serve the important public function of recognizing and expressing gratitude for acts of heroism and sacrifice in military service,” and also “ ‘foste[r] morale, mission accomplishment and esprit de corps’ among service members.” Brief for United States 37, 38. General George Washington observed that an award for valor would “cherish a virtuous ambition in . . . soldiers, as well as foster and encourage every species of military merit.” General Orders of George Washington Issued at Newburgh on the Hudson, 1782–1783 (Aug. 7, 1782), p. 30 (E. Boynton ed. 1883). Time has not diminished this idea. In periods of war and peace alike public recognition of valor and noble sacrifice by men and women in uniform reinforces the pride and national resolve that the military relies upon to fulfill its mission.

These interests are related to the integrity of the military honors system in general, and the Congressional Medal of Honor in particular. Although millions have served with brave resolve, the Medal, which is the highest military award for valor against an enemy force, has been given just 3,476 times. Established in 1861, the Medal is reserved for those who have distinguished themselves “conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty.” 10 U. S. C. §§3741 (Army), 6241 (Navy and Marine Corps), 8741 (Air Force), 14 U. S. C. §491 (Coast Guard). The stories of those who earned the Medal inspire and fascinate, from Dakota Meyer who in 2009 drove five times into the midst of a Taliban ambush to save 36 lives, see Curtis, President Obama Awards Medal of Honor to Dakota Meyer, The White House Blog (Sept. 15, 2011) (all Internet materials as visited June 25, 2012, and available in Clerk of Court’s case file); to Desmond Doss who served as an army medic on Okinawa and on June 5, 1945, rescued 75 fellow soldiers, and who, after being wounded, gave up his own place on a stretcher so others could be taken to safety, see America’s Heroes 88–90 (J. Willbanks ed. 2011); to William Carney who sustained multiple gunshot wounds to the head, chest, legs, and arm, and yet carried the flag to ensure it did not touch the ground during the Union army’s assault on Fort Wagner in July 1863, id., at 44–45. The rare acts of courage the Medal celebrates led President Truman to say he would “rather have that medal round my neck than . . . be president of the United States.” Truman Gives No. 1 Army Medal to 15 Heroes, Washington Post, Oct. 13, 1945, p. 5. The Government’s interest in protecting the integrity of the Medal of Honor is beyond question.

But to recite the Government’s compelling interests is not to end the matter. The First Amendment requires that the Government’s chosen restriction on the speech at issue be “actually necessary” to achieve its interest. En-tertainment Merchants Assn., 564 U. S., at ___ (slip op., at 12). There must be a direct causal link between the restriction imposed and the injury to be prevented. See ibid. The link between the Government’s interest in protecting the integrity of the military honors system and the Act’s restriction on the false claims of liars like respondent has not been shown. Although appearing to concede that “an isolated misrepresentation by itself would not tarnish the meaning of military honors,” the Government asserts it is “common sense that false representations have the tendency to dilute the value and meaning of military awards,” Brief for United States 49, 54. It must be acknowledged that when a pretender claims the Medal to be his own, the lie might harm the Government by demeaning the high purpose of the award, diminishing the honor it confirms, and creating the appearance that the Medal is awarded more often than is true. Furthermore, the lie may offend the true holders of the Medal. From one perspective it in-sults their bravery and high principles when falsehood puts them in the unworthy company of a pretender.

Yet these interests do not satisfy the Government’s heavy burden when it seeks to regulate protected speech. See United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000) . The Government points to no evidence to support its claim that the public’s general perception of military awards is diluted by false claims such as those made by Alvarez. Cf. Entertainment Merchants Assn., supra, at ___–___ (slip op., at 12–13) (analyzing and rejecting the findings of research psychologists demonstrating the causal link between violent video games and harmful effects on children). As one of the Government’s amici notes “there is nothing that charlatans such as Xavier Alvarez can do to stain [the Medal winners’] honor.” Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 1. This general proposition is sound, even if true holders of the Medal might experience anger and frustration.

The lack of a causal link between the Government’s stated interest and the Act is not the only way in which the Act is not actually necessary to achieve the Government’s stated interest. The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements “Alvarez was perceived as a phony,” 617 F. 3d, at 1211. Once the lie was made public, he was ridiculed online, see Brief for Respondent 3, his actions were reported in the press, see Ortega, Alvarez Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow board member called for his resignation, see, e.g., Bigham, Water District Rep Requests Alvarez Resign in Wake of False Medal Claim, San Bernardino Cty., CA, The Sun (May 21, 2008). There is good reason to believe that a similar fate would befall other false claimants. See Brief for Reporters Committee for Freedom of the Press et al. as Amici Curiae 30–33 (listing numerous examples of public exposure of false claimants). Indeed, the outrage and contempt expressed for respondent’s lies can serve to reawaken and reinforce the public’s respect for the Medal, its recipients, and its high purpose. The acclaim that recipients of the Congressional Medal of Honor receive also casts doubt on the proposition that the public will be misled by the claims of charlatans or become cynical of those whose heroic deeds earned them the Medal by right. See, e.g., Well Done, Washington Post, Feb. 5, 1943, p. 8 (reporting on Pres-ident Roosevelt’s awarding the Congressional Medal of Honor to Maj. Gen. Alexander Vandegrift); Devroy, Medal of Honor Given to 2 Killed in Somalia, Washington Post, May 24, 1994, p. A6 (reporting on President Clinton’s awarding the Congressional Medal of Honor to two special forces soldiers killed during operations in Somalia).

The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth. See Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be ap-plied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.

Expressing its concern that counterspeech is insufficient, the Government responds that because “some military records have been lost . . . some claims [are] un-verifiable,” Brief for United States 50. This proves little, however; for without verifiable records, successful criminal prosecution under the Act would be more difficult in any event. So, in cases where public refutation will not serve the Government’s interest, the Act will not either. In addition, the Government claims that “many [false claims] will remain unchallenged.” Id., at 55. The Government provides no support for the contention. And in any event, in order to show that public refutation is not an adequate alternative, the Government must demonstrate that unchallenged claims undermine the public’s perception of the military and the integrity of its awards system. This showing has not been made.

It is a fair assumption that any true holders of the Medal who had heard of Alvarez’s false claims would have been fully vindicated by the community’s expression of outrage, showing as it did the Nation’s high regard for the Medal. The same can be said for the Government’s interest. The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradi-tion. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.

In addition, when the Government seeks to regulate protected speech, the restriction must be the “least restrictive means among available, effective alternatives.” Ashcroft, 542 U. S., at 666. There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Congressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individuals have already created databases similar to this, see Brief for Respondent 25, and at least one database of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that although Congress and the Department of Defense investigated the feasibility of establishing a database in 2008, the Government “concluded that such a database would be impracticable and insuf-ficiently comprehensive.” Brief for United States 55. Without more explanation, it is difficult to assess the Gov-ernment’s claim, especially when at least one database of Congressional Medal of Honor winners already exists.

The Government may have responses to some of these criticisms, but there has been no clear showing of the necessity of the statute, the necessity required by exacting scrutiny.

*  *  *

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. The Stolen Valor Act infringes upon speech protected by the First Amendment.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

SUPREME COURT OF THE UNITED STATES

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No. 11–210

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UNITED STATES, PETITIONER v. XAVIER ALVAREZ

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 28, 2012]

Justice Alito, with whom Justice Scalia and Justice Thomas join, dissenting.

Only the bravest of the brave are awarded the Congressional Medal of Honor, but the Court today holds that every American has a constitutional right to claim to have received this singular award. The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false claims about military decorations. These lies, Congress reasonably concluded, were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families.

Building on earlier efforts to protect the military awards system, Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom of speech. The statute reaches only knowingly false statements about hard facts directly within a speaker’s personal knowledge. These lies have no value in and of themselves, and proscribing them does not chill any valuable speech.

By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law.

I

The Stolen Valor Act makes it a misdemeanor to “falsely represen[t]” oneself as having been awarded a medal, decoration, or badge for service in the Armed Forces of the United States. 18 U. S. C. §704(b). Properly construed, this statute is limited in five significant respects. First, the Act applies to only a narrow category of false representations about objective facts that can almost always be proved or disproved with near certainty. Second, the Act concerns facts that are squarely within the speaker’s personal knowledge. Third, as the Government maintains, see Brief for United States 15–17, and both the plurality, see ante, at 7, and the concurrence, see ante, at 3 (Breyer, J., concurring in judgment), seemingly accept, a conviction under the Act requires proof beyond a reasonable doubt that the speaker actually knew that the representation was false. 1 Fourth, the Act applies only to statements that could reasonably be interpreted as communicating actual facts; it does not reach dramatic performances, satire, parody, hyperbole, or the like. 2 Finally, the Act is strictly viewpoint neutral. The false statements proscribed by the Act are highly unlikely to be tied to any particular political or ideological message. In the rare cases where that is not so, the Act applies equally to all false statements, whether they tend to disparage or commend the Government, the military, or the system of military honors.

The Stolen Valor Act follows a long tradition of efforts to protect our country’s system of military honors. When George Washington, as the commander of the Continental Army, created the very first “honorary badges of distinction” for service in our country’s military, he established a rigorous system to ensure that these awards would be received and worn by only the truly deserving. See General Orders of George Washington Issued at Newburgh on the Hudson, 1782–1783, p. 35 (E. Boynton ed. 1883) (reprint 1973) (requiring the submission of “incontestible proof” of “singularly meritorious action” to the Commander in Chief). Washington warned that anyone with the “insolence to assume” a badge that had not actually been earned would be “severely punished.” Id., at 34.

Building on this tradition, Congress long ago made it a federal offense for anyone to wear, manufacture, or sell certain military decorations without authorization. See Act of Feb. 24, 1923, ch. 110, 42Stat. 1286 (codified as amended at 18 U. S. C. §704(a)). Although this Court has never opined on the constitutionality of that particular provision, we have said that §702, which makes it a crime to wear a United States military uniform without authorization, is “a valid statute on its face.” Schacht v. United States, 398 U. S. 58, 61 (1970) .

Congress passed the Stolen Valor Act in response to a proliferation of false claims concerning the receipt of military awards. For example, in a single year, more than 600 Virginia residents falsely claimed to have won the Medal of Honor. 3 An investigation of the 333 people listed in the online edition of Who’s Who as having received a top military award revealed that fully a third of the claims could not be substantiated. 4 When the Library of Congress compiled oral histories for its Veterans History Project, 24 of the 49 individuals who identified themselves as Medal of Honor recipients had not actually received that award. 5 The same was true of 32 individuals who claimed to have been awarded the Distinguished Service Cross and 14 who claimed to have won the Navy Cross. 6 Notorious cases brought to Congress’ attention included the case of a judge who falsely claimed to have been awarded two Medals of Honor and displayed counterfeit medals in his courtroom; 7 a television network’s military consultant who falsely claimed that he had received the Silver Star; 8 and a former judge advocate in the Marine Corps who lied about receiving the Bronze Star and a Purple Heart. 9

As Congress recognized, the lies proscribed by the Stolen Valor Act inflict substantial harm. In many instances, the harm is tangible in nature: Individuals often falsely represent themselves as award recipients in order to obtain financial or other material rewards, such as lucrative contracts and government benefits. 10 An investigation of false claims in a single region of the United States, for example, revealed that 12 men had defrauded the Department of Veterans Affairs out of more than $1.4 million in veteran’s benefits. 11 In other cases, the harm is less tangible, but nonetheless significant. The lies proscribed by the Stolen Valor Act tend to debase the distinctive honor of military awards. See Stolen Valor Act of 2005, §2, 120Stat. 3266, note following 18 U. S. C. §704 (finding that “[f]raudulent claims surrounding the receipt of [military decorations and medals] damage the reputation and meaning of such decorations and medals”). And legitimate award recipients and their families have expressed the harm they endure when an imposter takes credit for heroic actions that he never performed. One Medal of Honor recipient described the feeling as a “ ‘slap in the face of veterans who have paid the price and earned their medals.’ ” 12

It is well recognized in trademark law that the proliferation of cheap imitations of luxury goods blurs the “ ‘signal’ given out by the purchasers of the originals.” Landes & Posner, Trademark Law: An Economic Perspective, 30 J. Law & Econ. 265, 308 (1987). In much the same way, the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are, and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps. Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country’s top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags. Cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 –541 (1987) (rejecting First Amendment challenge to law prohibiting certain unauthorized uses of the word “Olympic” and recognizing that such uses harm the U. S. Olympic Committee by “lessening the distinctiveness” of the term).

Both the plurality and Justice Breyer argue that Congress could have preserved the integrity of military honors by means other than a criminal prohibition, but Congress had ample reason to believe that alternative approaches would not be adequate. The chief alternative that is recommended is the compilation and release of a comprehensive list or database of actual medal recipients. If the public could readily access such a resource, it is argued, imposters would be quickly and easily exposed, and the proliferation of lies about military honors would come to an end.

This remedy, unfortunately, will not work. The Department of Defense has explained that the most that it can do is to create a database of recipients of certain top military honors awarded since 2001. See Office of Undersecretary of Defense, Report to the Senate and House Armed Services Committees on a Searchable Military Valor Decorations Database 4–5 (2009). 13

Because a sufficiently comprehensive database is not practicable, lies about military awards cannot be remedied by what the plurality calls “counterspeech.” Ante, at 15. Without the requisite database, many efforts to refute false claims may be thwarted, and some legitimate award recipients may be erroneously attacked. In addition, a steady stream of stories in the media about the exposure of imposters would tend to increase skepticism among members of the public about the entire awards system. This would only exacerbate the harm that the Stolen Valor Act is meant to prevent.

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 “secure moneys or other valuable considerations.” Ante, at 11. In a similar vein, the concurrence comments that “a more finely tailored statute might . . . insist upon a showing that the false statement caused specific harm.” Ante, 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—say, a dollar given to a homeless man falsely claiming to be a decorated veteran—is 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.

Justice Breyer also proposes narrowing the statute so that it covers a shorter list of military awards, ante, at 9 (opinion concurring in judgment), but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it eventually passes a law that draws the line in just the right place.

II A

Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value. See Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 612 (2003) (“Like other forms of public deception, fraudulent charitable solicitation is unprotected speech”); BE&K Constr. Co. v. NLRB, 536 U. S. 516, 531 (2002) (“[F]alse statements may be unprotected for their own sake”); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 52 (1988) (“False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot easily be repaired by counterspeech, however persuasive or effective”); Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 776 (1984) (“There is ‘no constitutional value in false statements of fact’ ” (quoting Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974) )); Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S. 731, 743 (1983) (“[F]alse statements are not immunized by the First Amendment right to freedom of speech”); Brown v. Hartlage, 456 U. S. 45, 60 (1982) (“Of course, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements”); Herbert v. Lando, 441 U. S. 153, 171 (1979) (“Spreading false information in and of itself carries no First Amendment credentials”); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) (“Untruthful speech, commercial or otherwise, has never been protected for its own sake”); Gertz, supra, at 340 (“[T]he erroneous statement of fact is not worthy of constitutional protection”); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967) (“[T]he constitutional guarantees [of the First Amendment] can tolerate sanctions against calculated falsehood without significant impairment of their essential function”); Garrison v. Louisiana, 379 U. S. 64, 75 (1964) (“[T]he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection”).

Consistent with this recognition, many kinds of false factual statements have long been proscribed without “ ‘rais[ing] any Constitutional problem.’ ” United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 6) (quoting Chaplinsky v. New Hampshire, 315 U. S. 568 –572 (1942)). Laws prohibiting fraud, perjury, and defamation, for example, were in existence when the First Amendment was adopted, and their constitutionality is now beyond question. See, e.g., Donaldson v. Read Magazine, Inc., 333 U. S. 178, 190 (1948) (explaining that the government’s power “to protect people against fraud” has “always been recognized in this country and is firmly established”); United States v. Dunnigan, 507 U. S. 87, 97 (1993) (observing that “the constitutionality of perjury statutes is unquestioned”); Beauharnais v. Illinois, 343 U. S. 250, 256 (1952) (noting that the “prevention and punishment” of libel “have never been thought to raise any Constitutional problem”).

We have also described as falling outside the First Amendment’s protective shield certain false factual statements that were neither illegal nor tortious at the time of the Amendment’s adoption. The right to freedom of speech has been held to permit recovery for the intentional infliction of emotional distress by means of a false statement, see Falwell, supra, at 56, even though that tort did not enter our law until the late 19th century, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §12, p. 60, and n. 47. (5th ed. 1984) (hereinafter Prosser and Keeton). And in Hill, supra, at 390, the Court concluded that the free speech right allows recovery for the even more modern tort of false-light invasion of privacy, see Prosser and Keeton §117, at 863.

In line with these holdings, it has long been assumed that the First Amendment is not offended by prominent criminal statutes with no close common-law analog. The most well known of these is probably 18 U. S. C. §1001, which makes it a crime to “knowingly and willfully” make any “materially false, fictitious, or fraudulent statement or representation” in “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” Unlike perjury, §1001 is not limited to statements made under oath or before an official government tribunal. Nor does it require any showing of “pecuniary or property loss to the government.” United States v. Gilliland, 312 U. S. 86, 93 (1941) . Instead, the statute is based on the need to protect “agencies from the perversion which might result from the deceptive practices described.” Ibid. (emphasis added).

Still other statutes make it a crime to falsely represent that one is speaking on behalf of, or with the approval of, the Federal Government. See, e.g., 18 U. S. C. §912 (making it a crime to falsely impersonate a federal officer); §709 (making it a crime to knowingly use, without authorization, the names of enumerated federal agencies, such as “Federal Bureau of Investigation,” in a manner reasonably calculated to convey the impression that a communication is approved or authorized by the agency). We have recognized that §912, like §1001, does not require a showing of pecuniary or property loss and that its purpose is to “ ‘maintain the general good repute and dignity’ ” of Government service. United States v. Lepowitch, 318 U. S. 702, 704 (1943) (quoting United States v. Barnow, 239 U. S. 74, 80 (1915) ). All told, there are more than 100 federal criminal statutes that punish false statements made in connection with areas of federal agency concern. See United States v. Wells, 519 U. S. 482 –507, and nn. 8–10 (1997) (Stevens, J., dissenting) (citing “at least 100 federal false statement statutes” in the United States Code).

These examples amply demonstrate that false statements of fact merit no First Amendment protection in their own right. 14 It is true, as Justice Breyer notes, that many in our society either approve or condone certain discrete categories of false statements, including false statements made to prevent harm to innocent victims and so-called “white lies.” See ante, at 4. But respondent’s false claim to have received the Medal of Honor did not fall into any of these categories. His lie did not “prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence.” Ibid. Nor did his lie “stop a panic or otherwise preserve calm in the face of danger” or further philosophical or scientific debate. Ibid. Respondent’s claim, like all those covered by the Stolen Valor Act, served no valid purpose.

Respondent and others who join him in attacking the Stolen Valor Act take a different view. Respondent’s brief features a veritable paean to lying. According to respondent, his lie about the Medal of Honor was nothing out of the ordinary for 21st-century Americans. “Everyone lies,” he says. Brief for Respondent 10. “We lie all the time.” Ibid. “[H]uman beings are constantly forced to choose the persona we present to the world, and our choices nearly always involve intentional omissions and misrepresentations, if not outright deception.” Id., at 39. An academic amicus tells us that the First Amendment protects the right to construct “self-aggrandizing fabrications such as having been awarded a military decoration.” Brief for Jonathan D. Varat as Amicus Curiae 5.

This radical interpretation of the First Amendment is not supported by any precedent of this Court. The lies covered by the Stolen Valor Act have no intrinsic value and thus merit no First Amendment protection unless their prohibition would chill other expression that falls within the Amendment’s scope. I now turn to that question.

B

While we have repeatedly endorsed the principle that false statements of fact do not merit First Amendment protection for their own sake, we have recognized that it is sometimes necessary to “exten[d] a measure of strategic protection” to these statements in order to ensure sufficient “ ‘breathing space’ ” for protected speech. Gertz, 418 U. S., at 342 (quoting NAACP v. Button, 371 U. S. 415, 433 (1963) ). Thus, in order to prevent the chilling of truthful speech on matters of public concern, we have held that liability for the defamation of a public official or figure requires proof that defamatory statements were made with knowledge or reckless disregard of their falsity. See New York Times Co. v. Sullivan, 376 U. S. 254 –280 (1964) (civil liability); Garrison, 379 U. S., at 74–75 (criminal liability). This same requirement applies when public officials and figures seek to recover for the tort of intentional infliction of emotional distress. See Falwell, 485 U. S., at 55–56. And we have imposed “[e]xacting proof requirements” in other contexts as well when necessary to ensure that truthful speech is not chilled. Madigan, 538 U. S., at 620 (complainant in a fraud action must show that the defendant made a knowingly false statement of material fact with the intent to mislead the listener and that he succeeded in doing so); see also BE&K Constr., 536 U. S., at 531 (regulation of baseless lawsuits limited to those that are both “objectively baseless and subjectively motivated by an unlawful purpose”); Hartlage, 456 U. S., at 61 (sustaining as-applied First Amendment challenge to law prohibiting certain “factual misstatements in the course of political debate” where there had been no showing that the disputed statement was made “other than in good faith and without knowledge of its falsity, or . . . with reckless disregard as to whether it was false or not”). All of these proof requirements inevitably have the effect of bringing some false factual statements within the protection of the First Amendment, but this is justified in order to prevent the chilling of other, valuable speech.

These examples by no means exhaust the circumstances in which false factual statements enjoy a degree of instrumental constitutional protection. On the contrary, there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today’s accepted wisdom sometimes turns out to be mistaken. And in these contexts, “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’ ” Sullivan, supra, at 279, n. 19 (quoting J. Mill, On Liberty 15 (R. McCallum ed. 1947)).

Allowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends. Statements about history illustrate this point. If some false statements about historical events may be banned, how certain must it be that a statement is false before the ban may be upheld? And who should make that calculation? While our cases prohibiting viewpoint discrimination would fetter the state’s power to some degree, see R. A. V. v. St. Paul, 505 U. S. 377 –390 (1992) (explaining that the First Amendment does not permit the government to engage in viewpoint discrimination under the guise of regulating unprotected speech), the potential for abuse of power in these areas is simply too great.

In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumental purpose that the First Amendment might protect. Tellingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none. Tr. of Oral Arg. 36.

C

Neither of the two opinions endorsed by Justices in the majority claims that the false statements covered by the Stolen Valor Act possess either intrinsic or instrumental value. Instead, those opinions appear to be based on the distinct concern that the Act suffers from overbreadth. See ante, at 10 (plurality opinion) (the Act applies to “personal, whispered conversations within a home”); ante, at 8 (Breyer, J., concurring in judgment) (the Act “applies in family, social, or other private contexts” and in “political contexts”). But to strike down a statute on the basis that it is overbroad, it is necessary to show that the statute’s “overbreadth [is] substantial, not only in an absolute sense, but also relative to [its] plainly legitimate sweep.” United States v. Williams, 553 U. S. 285, 292 (2008) ; see also ibid. (noting that this requirement has been “vigorously enforced”). The plurality and the concurrence do not even attempt to make this showing.

The plurality additionally worries that a decision sustaining the Stolen Valor Act might prompt Congress and the state legislatures to enact laws criminalizing lies about “an endless list of subjects.” Ante, at 11. The plurality apparently fears that we will see laws making it a crime to lie about civilian awards such as college degrees or certificates of achievement in the arts and sports.

This concern is likely unfounded. With very good reason, military honors have traditionally been regarded as quite different from civilian awards. Nearly a century ago, Congress made it a crime to wear a military medal without authorization; we have no comparable tradition regarding such things as Super Bowl rings, Oscars, or Phi Beta Kappa keys.

In any event, if the plurality’s concern is not entirely fanciful, it falls outside the purview of the First Amendment. The problem that the plurality foresees—that legislative bodies will enact unnecessary and overly intrusive criminal laws—applies regardless of whether the laws in question involve speech or nonexpressive conduct. If there is a problem with, let us say, a law making it a criminal offense to falsely claim to have been a high school valedictorian, the problem is not the suppression of speech but the misuse of the criminal law, which should be reserved for conduct that inflicts or threatens truly serious societal harm. The objection to this hypothetical law would be the same as the objection to a law making it a crime to eat potato chips during the graduation ceremony at which the high school valedictorian is recognized. The safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional.

The Stolen Valor Act represents the judgment of the people’s elected representatives that false statements about military awards are very different from false statements about civilian awards. Certainly this is true with respect to the high honor that respondent misappropriated. Respondent claimed that he was awarded the Medal of Honor in 1987 for bravery during the Iran hostage crisis. This singular award, however, is bestowed only on those members of the Armed Forces who “distinguis[h] [themselves] conspicuously by gallantry and intrepidity at the risk of [their lives] above and beyond the call of duty.” 10 U. S. C. §3741; see also §§6241, 8741. More than half of the heroic individuals to have been awarded the Medal of Honor after World War I received it posthumously. 15 Congress was entitled to conclude that falsely claiming to have won the Medal of Honor is qualitatively different from even the most prestigious civilian awards and that the misappropriation of that honor warrants criminal sanction.

*  *  *

The Stolen Valor Act is a narrow law enacted to address an important problem, and it presents no threat to freedom of expression. I would sustain the constitutionality of the Act, and I therefore respectfully dissent.

__________________________________

1  Although the Act does not use the term “knowing” or “knowingly,” we have explained that criminal statutes must be construed “in light of the background rules of the common law . . . in which the requirement of some mens rea for a crime is firmly embedded.” Staples v. United States, 511 U. S. 600, 605 (1994) . The Act’s use of the phrase “falsely represents,” moreover, connotes a knowledge requirement. See Black’s Law Dictionary 1022 (8th ed. 2004) (defining a “misrepresentation” or “false representation” to mean “[t]he act of making a false or misleading assertion about something, usu. with the intent to deceive” (emphasis added)).

2  See Black’s Law Dictionary, supra, at 1327 (defining “representation” to mean a “presentation of fact”); see also Milkovich v. Lorain Journal Co., 497 U. S. 1, 20 (1990) (explaining that the Court has protected “statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual” so that “public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation” (quoting Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50 (1988) ; alteration in original)).

3  Colimore, Pinning Crime on Fake Heroes: N. J. Agent Helps Expose and Convict Those with Bogus U. S. Medals, Philadelphia Inquirer, Feb. 11, 2004, http://articles.philly.com/2004-02-11/news/25374213_1_medals-military-imposters-distinguished-flying-cross (all Internet mate-rials as visited June 25, 2012, and available in Clerk of Court’s casefile).

4  Crewdson, Claims of Medals Amount to Stolen Valor, Chicago Tribune, Oct. 26, 2008, http://www.chicagotribune.com/news/local/chi-valor-oct25,0,4301227.story?page=1.

5  Half of MOH Entries in Oral History Project Are Incorrect, Marine Corps Times, Oct. 1, 2007, 2007 WLNR 27917486.

6  Ibid.

7  Young, His Honor Didn’t Get Medal of Honor, Chicago Tribune, Oct. 21, 1994, http://articles.chicagotribune.com/1994-10-21/news/941021031 8_1_congressional-medal-highest-fritz.

8  Rutenberg, At Fox News, the Colonel Who Wasn’t, N. Y. Times, Apr. 29, 2002, http://www.nytimes.com/2002/04/29/business/at-fox-news-the-colonel-who-wasn-t.html?pagewanted=all&src=pm.

9  B. Burkett & G. Whitley, Stolen Valor: How the Vietnam Generation Was Robbed of Its Heroes and Its History 179 (1998).

10  Indeed, the first person to be prosecuted under the Stolen ValorAct apparently “parlayed his medals into lucrative security consulting contracts.” Zambito, War Crime: FBI Targets Fake Heroes, New York Daily News, May 6, 2007, http://www.nydailynews.com/news/crime/war-crime-fbi-targets-fake-heroes-article-1.249168.

11  Dept. of Justice, Northwest Crackdown on Fake Veterans in “Operation Stolen Valor,” Sept. 21, 2007, http://www.justice.gov/usao/waw/ press/2007/sep/operationstolenvalor.html.

12  Cato, High Court Tussles With False Heroics: Free Speech or Fel-ony? Pittsburg Tribune Review, Feb. 23, 2012, http://triblive.com/ usworld/nation/1034434-85/court-military-law-false-medals-supreme-valor-act-federal-free.

13  In addition, since the Department may not disclose the Social Security numbers or birthdates of recipients, this database would be of limited use in ascertaining the veracity of a claim involving a person with a common name. Office of Undersecretary of Defense, Report, at 3–4.

14  The plurality rejects this rule. Although we have made clear that “[u]ntruthful speech . . . has never been protected for its own sake,” Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) , the most the plurality is willing to concede is that “the falsity of speech bears upon whether it is protected,” ante, at 9. This represents a dramatic—and entirely unjustified—departure from the sound approach taken in past cases. Respondent and his supporting amici attempt to limit this rule to certain subsets of false statements, see, e.g., Brief for Respondent 53 (asserting that, at most, only falsity that is proved to cause specific harm is stripped of its First Amendment protection), but the examples described above belie that attempt. These examples show that the rule at least applies to (1) specific types of false statements that were neither illegal nor tortious in 1791 (the torts of intentional infliction of emotional distress and false-light invasion of privacy did not exist when the First Amendment was adopted); (2) false speech that does not cause pecuniary harm (the harm remedied by the torts of defamation, intentional infliction of emotional distress, and false-light invasion of privacy is often nonpecuniary in nature, as is the harm inflicted by statements that are illegal under §§912 and 1001); (3) false speech that does not cause detrimental reliance (neither perjury laws nor many of the federal false statement statutes require that anyone actually rely on the false statement); (4) particular false statements that are not shown in court to have caused specific harm (damages can be presumed in defamation actions involving knowing or reckless falsehoods, and no showing of specific harm is required in prosecutions under many of the federal false statement statutes); and (5) false speech that does not cause harm to a specific individual (the purpose of many of the federal false statement statutes is to protect government processes).

15  See U. S. Army Center of Military History, Medal of Honor Statistics, http://www.history.army.mil/html/moh/mohstats.html.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–210

_________________

UNITED STATES, PETITIONER v. XAVIER ALVAREZ

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 28, 2012]

Justice Breyer, with whom Justice Kagan joins, concurring in the judgment.

I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Ante, at 4–10. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Government can achieve its legitimate objectives in less restrictive ways.

I

In determining whether a statute violates the First Amendment, this Court has often found it appropriate to examine the fit between statutory ends and means. In doing so, it has examined speech-related harms, justifications, and potential alternatives. In particular, it has taken account of the seriousness of the speech-related harm the provision will likely cause, the nature and importance of the provision’s countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive ways of doing so. Ultimately the Court has had to determine whether the statute works speech-related harm that is out of proportion to its justifications.

Sometimes the Court has referred to this approach as “intermediate scrutiny,” sometimes as “proportionality” review, sometimes as an examination of “fit,” and sometimes it has avoided the application of any label at all. See, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 –652 (1994) (intermediate scrutiny); Randall v. Sorrell, 548 U. S. 230, 249 (2006) (plurality opinion) (proportionality); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989) (requiring a “fit” between means and ends that is “ ‘in proportion to the interest served’ ”); In re R. M. J., 455 U. S. 191, 203 (1982) (“[I]nterference with speech must be in proportion to the [substantial governmental] interest served”); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968) .

Regardless of the label, some such approach is necessary if the First Amendment is to offer proper protection in the many instances in which a statute adversely affects constitutionally protected interests but warrants neither near-automatic condemnation (as “strict scrutiny” implies) nor near-automatic approval (as is implicit in “rational basis” review). See, e.g., Turner Broadcasting System, Inc., supra, at 641–652 (“must-carry” cable regulations); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 566 (1980) (nonmisleading commercial speech); Burdick v. Takushi, 504 U. S. 428 –434 (1992) (election regulation); Pickering, supra, at 568 (government employee speech); United States v. O’Brien, 391 U. S. 367, 377 (1968) (application of generally applicable laws to expressive conduct). I have used the term “proportionality” to describe this approach. Thompson v. Western States Medical Center, 535 U. S. 357, 388 (2002) (dissenting opinion); see also Bartnicki v. Vopper, 532 U. S. 514, 536 (2001) (concurring opinion); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377 –403 (2000) (concurring opinion). But in this case, the Court’s term “intermediate scrutiny” describes what I think we should do.

As the dissent points out, “there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech.” Post, at 14. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law. The dangers of suppressing valuable ideas are lower where, as here, the regulations concern false statements about easily verifiable facts that do not concern such subject matter. Such false factual statements are less likely than are true factual statements to make a valuable contribution to the marketplace of ideas. And the government often has good reasons to prohibit such false speech. See infra, at 5–7 (listing examples of statutes and doctrines regulating false factual speech). But its regulation can nonetheless threaten speech-related harms. Those circumstances lead me to apply what the Court has termed “intermediate scrutiny” here.

II A

The Stolen Valor Act makes it a crime “falsely” to “represen[t]” oneself “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” 18 U. S. C. §704(b). I would read the statute favorably to the Government as criminalizing only false factual statements made with knowledge of their falsity and with the intent that they be taken as true. See Staples v. United States, 511 U. S. 600, 605 (1994) (courts construe statutes “in light of the background rules of the common law, . . . in which the requirement of some mens rea for a crime is firmly embedded”); cf. New York Times Co. v. Sullivan, 376 U. S. 254 –280 (1964) ( First Amendment allows a public official to recover for defamation only upon a showing of “ ‘actual malice’ ”). As so interpreted the statute covers only lies. But although this interpretation diminishes the extent to which the statute endangers First Amendment values, it does not eliminate the threat.

I must concede, as the Government points out, that this Court has frequently said or implied that false factual statements enjoy little First Amendment protection. See, e.g., BE&K Constr. Co. v. NLRB, 536 U. S. 516, 531 (2002) (“[F]alse statements may be unprotected for their own sake”); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 52 (1988) (“False statements of fact are particularly valueless”); Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974) (“[T]he erroneous statement of fact is not worthy of constitutional protection”).

But these judicial statements cannot be read to mean “no protection at all.” False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth. See, e.g., 638 F. 3d 666, 673–675 (CA9 2011) (Kozinski, J., concurring in denial of rehearing en banc) (providing numerous examples); S. Bok, Lying: Moral Choice in Public and Private Life (1999) (same); New York Times Co., supra, at 279, n. 19 (“Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error’ ” (quoting J. Mill, On Liberty 15 (Blackwell ed. 1947))).

Moreover, as the Court has often said, the threat of criminal prosecution for making a false statement can inhibit the speaker from making true statements, thereby “chilling” a kind of speech that lies at the First Amendment’s heart. See, e.g., Gertz, supra, at 340–341. Hence, the Court emphasizes mens rea requirements that provide “breathing room” for more valuable speech by reducing an honest speaker’s fear that he may accidentally incur liability for speaking.

Further, the pervasiveness of false statements, made for better or for worse motives, made thoughtlessly or deliberately, made with or without accompanying harm, provides a weapon to a government broadly empowered to prosecute falsity without more. And those who are unpopular may fear that the government will use that weapon selectively, say by prosecuting a pacifist who supports his cause by (falsely) claiming to have been a war hero, while ignoring members of other political groups who might make similar false claims.

I also must concede that many statutes and common-law doctrines make the utterance of certain kinds of false statements unlawful. Those prohibitions, however, tend to be narrower than the statute before us, in that they limit the scope of their application, sometimes by requiring proof of specific harm to identifiable victims; sometimes by specifying that the lies be made in contexts in which a tangible harm to others is especially likely to occur; and sometimes by limiting the prohibited lies to those that are particularly likely to produce harm.

Fraud statutes, for example, typically require proof of a misrepresentation that is material, upon which the victim relied, and which caused actual injury. See Restatement (Second) of Torts §525 (1976). Defamation statutes focus upon statements of a kind that harm the reputation of another or deter third parties from association or dealing with the victim. See id., §§558, 559. Torts involving the intentional infliction of emotional distress (like torts involving placing a victim in a false light) concern falsehoods that tend to cause harm to a specific victim of an emotional-, dignitary-, or privacy-related kind. See id., §652E.

Perjury statutes prohibit a particular set of false statements—those made under oath—while requiring a showing of materiality. See, e.g., 18 U. S. C. §1621. Statutes forbidding lying to a government official (not under oath) are typically limited to circumstances where a lie is likely to work particular and specific harm by interfering with the functioning of a government department, and those statutes also require a showing of materiality. See, e.g., §1001.

Statutes prohibiting false claims of terrorist attacks, or other lies about the commission of crimes or catastrophes, require proof that substantial public harm be directly foreseeable, or, if not, involve false statements that are very likely to bring about that harm. See, e.g., 47 CFR §73.1217 (2011) (requiring showing of foreseeability and actual substantial harm); 18 U. S. C. §1038(a)(1) (prohibiting knowing false statements claiming that terrorist attacks have taken, are taking, or will take, place).

Statutes forbidding impersonation of a public official typically focus on acts of impersonation, not mere speech, and may require a showing that, for example, someone was deceived into following a “course [of action] he would not have pursued but for the deceitful conduct.” United States v. Lepowitch, 318 U. S. 702, 704 (1943) ; see, e.g., §912 (liability attaches to “[w]hoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States . . . and acts as such” (emphasis added)).

Statutes prohibiting trademark infringement present, perhaps, the closest analogy to the present statute. Trademarks identify the source of a good; and infringement causes harm by causing confusion among potential customers (about the source) and thereby diluting the value of the mark to its owner, to consumers, and to the economy. Similarly, a false claim of possession of a medal or other honor creates confusion about who is entitled to wear it, thus diluting its value to those who have earned it, to their families, and to their country. But trademark statutes are focused upon commercial and promotional activities that are likely to dilute the value of a mark. Indeed, they typically require a showing of likely confusion, a showing that tends to assure that the feared harm will in fact take place. See 15 U. S. C. §1114(1)(a); KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U. S. 111, 117 (2004) ; see also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 –540, 548 (1987) (upholding statute giving the United States Olympic Committee the right to prohibit certain commercial and promotional uses of the word “Olympic”).

While this list is not exhaustive, it is sufficient to show that few statutes, if any, simply prohibit without limitation the telling of a lie, even a lie about one particular matter. Instead, in virtually all these instances limitations of context, requirements of proof of injury, and the like, narrow the statute to a subset of lies where specific harm is more likely to occur. The limitations help to make certain that the statute does not allow its threat of liability or criminal punishment to roam at large, discouraging or forbidding the telling of the lie in contexts where harm is unlikely or the need for the prohibition is small.

The statute before us lacks any such limiting features. It may be construed to prohibit only knowing and intentional acts of deception about readily verifiable facts within the personal knowledge of the speaker, thus reducing the risk that valuable speech is chilled. Supra, at 3–4. But it still ranges very broadly. And that breadth means that it creates a significant risk of First Amendment harm. As written, it applies in family, social, or other private contexts, where lies will often cause little harm. It also applies in political contexts, where although such lies are more likely to cause harm, the risk of censorious selectivity by prosecutors is also high. Further, given the potential haziness of individual memory along with the large number of military awards covered (ranging from medals for rifle marksmanship to the Congressional Medal of Honor), there remains a risk of chilling that is not completely eliminated by mens rea requirements; a speaker might still be worried about being prosecuted for a careless false statement, even if he does not have the intent required to render him liable. And so the prohibition may be applied where it should not be applied, for example, to bar stool braggadocio or, in the political arena, subtly but selectively to speakers that the Government does not like. These considerations lead me to believe that the statute as written risks significant First Amendment harm.

B

Like both the plurality and the dissent, I believe the statute nonetheless has substantial justification. It seeks to protect the interests of those who have sacrificed their health and life for their country. The statute serves this interest by seeking to preserve intact the country’s recognition of that sacrifice in the form of military honors. To permit those who have not earned those honors to claim otherwise dilutes the value of the awards. Indeed, the Nation cannot fully honor those who have sacrificed so much for their country’s honor unless those who claim to have received its military awards tell the truth. Thus, the statute risks harming protected interests but only in order to achieve a substantial countervailing objective.

C

We must therefore ask whether it is possible substantially to achieve the Government’s objective in less burdensome ways. In my view, the answer to this question is “yes.” Some potential First Amendment threats can be alleviated by interpreting the statute to require knowledge of falsity, etc. Supra, at 3–4. But other First Amendment risks, primarily risks flowing from breadth of coverage, remain. Supra, at 4–5, 7–8. As is indicated by the limitations on the scope of the many other kinds of statutes regulating false factual speech, supra, at 5–7, it should be possible significantly to diminish or eliminate these remaining risks by enacting a similar but more finely tailored statute. For example, not all military awards are alike. Congress might determine that some warrant greater protection than others. And a more finely tailored statute might, as other kinds of statutes prohibiting false factual statements have done, insist upon a showing that the false statement caused specific harm or at least was material, or focus its coverage on lies most likely to be harmful or on contexts where such lies are most likely to cause harm.

I recognize that in some contexts, particularly political contexts, such a narrowing will not always be easy to achieve. In the political arena a false statement is more likely to make a behavioral difference (say, by leading the listeners to vote for the speaker) but at the same time criminal prosecution is particularly dangerous (say, by radically changing a potential election result) and consequently can more easily result in censorship of speakers and their ideas. Thus, the statute may have to be significantly narrowed in its applications. Some lower courts have upheld the constitutionality of roughly comparable but narrowly tailored statutes in political contexts. See, e.g., United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F. 3d 86, 93 (CA2 1997) (upholding against First Amendment challenge application of Lanham Act to a political organization); Treasure of the Committee to Elect Gerald D. Lostracco v. Fox, 150 Mich. App. 617, 389 N. W. 2d 446 (1986) (upholding under First Amendment statute prohibiting campaign material falsely claiming that one is an incumbent). Without expressing any view on the validity of those cases, I would also note, like the plurality, that in this area more accurate information will normally counteract the lie. And an accurate, publicly available register of military awards, easily obtainable by political opponents, may well adequately protect the integrity of an award against those who would falsely claim to have earned it. See ante, at 17–18. And so it is likely that a more narrowly tailored statute combined with such information-disseminating devices will effectively serve Congress’ end.

The Government has provided no convincing explanation as to why a more finely tailored statute would not work. In my own view, such a statute could significantly reduce the threat of First Amendment harm while permitting the statute to achieve its important protective objective. That being so, I find the statute as presently drafted works disproportionate constitutional harm. It consequently fails intermediate scrutiny, and so violates the First Amendment.

For these reasons, I concur in the Court’s judgment.

Print this transcript Transcript: 

ORAL ARGUMENT OF GENERAL DONALD B. VERRILLI, JR., ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-210, United States v. Alvarez.

General Verrilli.

Mr. Verrilli Jr.: Mr. Chief Justice, and may it please the Court:

Military honors play a vital role in inculcating and sustaining the core values of our nation's armed forces.

The military applies exacting criteria in awarding honors, and Congress has a long tradition of legislating to protect the integrity of the honor system.

The Stolen Valor Act continues that tradition by prohibiting knowingly false statements that one has been awarded a military honor.

It regulates a carefully limited and narrowly drawn category of calculated factual falsehoods.

It advances a legitimate substantial, indeed compelling, governmental interest, and it chills no protected speech.

This Court has recognized--

Justice Sonia Sotomayor: General, may I pose a hypothetical?

During the Vietnam War, a protester holds up a sign that says,

"I won a Purple Heart -- for killing babies. "

Knowing statement.

He didn't win the Purple Heart.

As a reader, I can't be sure whether he did and is a combat veteran who opposes the war, or whether he's a citizen protesting the war.

Is that person, if he's not a veteran, having received the medal, is he liable under this act?

Mr. Verrilli Jr.: --I think, Your Honor, it would depend on whether that was, that expression, was reasonably understood by the audience as a statement of fact or as an exercise in political theater.

If it's the latter, it's not within the scope of the statute, and it wouldn't be subject to liability.

Justice Sonia Sotomayor: Somewhat dangerous, isn't it, to subject speech to the absolute rule of no protection?

Which is what you're advocating, I understand, that there are no circumstances in which this speech has value.

I believe that's your bottom line.

Mr. Verrilli Jr.: Well, what -- what I would say with respect to that, Your Honor, is that this Court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no First Amendment value for its own sake.

Justice Anthony Kennedy: Well, I'm -- I'm not sure that that's quite correct.

It has said it often, but always in context where it is well understood that speech can injure.

Defamation, Gertz.

At page 12 of your brief, you make this point, and it's what Justice Sotomayor is indicating.

You think there's no value to falsity.

But I -- I simply can't find that in our cases, and I -- I think it's a sweeping proposition to say that there's no value to falsity.

Falsity is a way in which we contrast what is false and what is true.

Mr. Verrilli Jr.: I want to be--

Justice Anthony Kennedy: And--

Mr. Verrilli Jr.: --I want to respond with precision, Justice Kennedy, that the -- I think what this Court -- and Gertz is a good example -- has done is to draw a line, and that line -- and I think it is Gertz itself that contains this Court's statement that false statements of fact have no First Amendment value.

That doesn't automatically mean that a false statement of fact lacks First Amendment protection.

Justice Anthony Kennedy: --But that's in the context of a defamation case.

Mr. Verrilli Jr.: Yes.

Justice Anthony Kennedy: And you want to take the Gertz case, where it's well understood that defamation is actionable, and say that as a general matter, that the government can inveigh against what's false.

Mr. Verrilli Jr.: The -- no, I'm trying to say something much narrower than that, Justice Kennedy, that, with respect to factually false statements, the government has the authority, if it can meet the "breathing space" principles that this Court's cases have articulated, along with the recognition that factually false statements have no intrinsic First Amendment value -- those are substantial constraints.

But they are substantial constraints that are satisfied in this case because the Stolen Valor Act regulates a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor, and that's information that is within -- and only punishes speech about yourself.

So it is speech that is uniquely within the knowledge of the individual speaker.

Justice Ruth Bader Ginsburg: Suppose -- suppose, General Verrilli, that the decorations were left out and Congress had said: We don't like people saying that they were in the Marine Corps for 25 years when they never served for a single day in any armed force.

So they have a statute just like this one, but it is directed to the false claim that one has served in the armed forces.

I don't see in your argument that there is something special about the decorations--

Mr. Verrilli Jr.: Well, I do think the decorations matter, Justice Ginsburg.

We -- we think that that kind of a statute would be a harder case, and under the Court's "breathing space" principles closer to the line, because the category is much broader, much harder to define, and it would depend on the interest.

Justice Antonin Scalia: Why is it much harder to define?

I don't -- why does the broadness have anything to do with the breathing space?

I mean, I suppose your argument here is that there is harm, it's not just falsehood, but it's falsehood conjoined with harm, just as libel is.

Mr. Verrilli Jr.: That's -- that's exactly our argument, Justice Scalia.

Justice Antonin Scalia: Okay.

So -- and in the example that Justice Ginsburg just gave, in your case there's harm to those courageous men and women who receive the decorations.

In the -- in the example that Justice Ginsburg gave, there's harm to the people who honorably served in the armed forces.

Mr. Verrilli Jr.: Yes.

Justice Antonin Scalia: Why isn't that just as--

Mr. Verrilli Jr.: And if that -- and if that is -- and that's what I was trying to get to, Justice Scalia, is that--

Justice Antonin Scalia: --Their service is demeaned when everybody says, I served in the armed forces.

Mr. Verrilli Jr.: --Congress -- under this Court's "breathing space" principles, Congress would need to articulate a substantial interest.

We think that would likely qualify.

We just think that's a harder case.

Chief Justice John G. Roberts: Well, where do you stop?

I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting.

High school diploma.

It is a crime to state that you have a high school diploma if you know that you don't.

That's something you can check pretty easily.

And Congress can say: We want people to finish high school.

It's a big thing to have a high school diploma.

So we want to make sure nobody goes around saying they do when they don't.

What about that case?

Mr. Verrilli Jr.: I think that that case,--

Your Honor, I think if it's an objectively verifiable fact -- it would seem more likely that a State legislature might enact a law like that.

If it were an objectively verifiable fact and the State could articulate a substantial interest of the kind that Your Honor identified--

Chief Justice John G. Roberts: The substantial interest is the one that I've just said.

Mr. Verrilli Jr.: --States -- States do have laws, some States do have laws respecting false claims to have received a diploma from a public university.

Justice Anthony Kennedy: But that's for submitting resumes.

That's -- when -- that's fraud.

Mr. Verrilli Jr.: If I could get back to Your Honor's point about the nature of the harm.

It is true that in Gertz you had the particularized harm, but this Court -- the common characteristic that allowed this Court to move from defamation to false light privacy, to intentional infliction of emotional distress in the Falwell case, then to baseless lawsuits, the sham exception in Noerr-Pennington, the sham exception under the National Labor Relations Act, the common characteristic was not an analogy to the particularized harm that existed in the defamation context.

The common characteristic that this Court's opinions identify is the calculated factual falsehood.

It is true that the harm here is different.

Justice Anthony Kennedy: They were -- they were in the context, though, of recognized torts, intentional infliction for emotional distress.

Here it does seem to me that you can argue that this is something like a -- a trademark, a medal in which the government and the armed forces have a particular interest, and we could carve out a narrow exception for that.

I think we would have to do that.

But just to say that the cases you mentioned say that there is no value to false speech, I simply cannot agree that they stand for that broad proposition.

They do in the particular context of a recognized tort like intentional infliction of emotional distress.

Mr. Verrilli Jr.: That -- that is true.

And this -- this is a case in which one of the harms that justifies this statute is the misappropriation of the government-conferred honor and esteem, and that is a real harm and a significant harm, and there is also the particularized harm of the erosion of the -- of the value of the military honors confirmed -- conferred -- by our government; and those are particularized harms that are real; and the kind of speech that this statute regulates are a genuine threat to those harms in a way that, looking backwards, looking and anchoring this argument in the tradition of this Court's precedents, this is a type of calculated factual falsehood.

Justice Sonia Sotomayor: Harms -- General, I spent a lot of time going through the multiple cases that you cited in your brief defining the various statutes that basically impose penalties for impersonation of some sort or another.

And virtually in every one of them, except perhaps one, there was either an economic interest that was harmed by the impersonation, either by the -- by the very face of the statute or by the nature of the claim, a dilution of a trademark, by taking on someone else's valuable property rights.

And so I went back reading our cases, and Justice Story many, many years ago said, look, falsehoods have no value as such, but the "breathing space" concept is defined by those falsehoods which cause injury to rights that people possess, to -- to pecuniary interests that they have, or to the reputation of others.

And almost every statute where we have approved a harm concept as being permissible for recovery has affected one of those three things.

So please tell me what's wrong with Justice Story's view, number one; and, number two, how does the definition of harm fit in that?

What's the harm here that fits within that descriptor.

Mr. Verrilli Jr.: Well, I think three points.

First, if I could just make a general point in response to Your Honor's question.

I think that one reality here is that, as I read this Court's cases, this Court has never held or even suggested in any context when the government wants to regulate a properly defined category of calculated factual falsehood, that it has to meet strict scrutiny.

That would be a real break and a real change in the law that would subject--

Justice Sonia Sotomayor: I didn't mention -- neither did Justice Story.

Mr. Verrilli Jr.: --And -- but -- and again--

Justice Sonia Sotomayor: He said if you want to regulate a falsehood, it has to cause a harm in this way.

Mr. Verrilli Jr.: --And that's why I want to get to -- that's -- but I think it's relevant, Your Honor, to the point about Justice Story in the following way.

The -- the -- there are a series of statutes, 18 U.S.C. 1001, 18 U.S.C. 962, the impersonating a Federal officer statute, 1001 being the false statement statute; perjury statutes; those are designed to protect the integrity of the government processes.

There isn't--

Justice Sonia Sotomayor: Not really.

They are intended to protect the right of the government to secure truthful information.

Mr. Verrilli Jr.: --Right.

Justice Sonia Sotomayor: The government has a right to subpoena you at trial, subject you to oath, and force you to tell the truth.

Mr. Verrilli Jr.: The statute--

Justice Sonia Sotomayor: So if you -- that's a right.

That fits within Story's definition.

Mr. Verrilli Jr.: --But not a -- as -- as I read what Justice Story is talking about, he was talking about the rights of private citizens, and what I'm saying is there is an additional category of long recognized, well accepted government regulation of factual -- calculated factual falsehood that serves systemic interests.

And, of course, with respect to the Stolen Valor Act, the -- Congress -- Congress is building in the Stolen Valor Act on a statute that Congress enacted in 1923 which prohibited the -- the wearing of medals without justification to wear the medals.

And, of course, one of the reasons Congress acted in 1923 to do that was out of concern that the misappropriation of the government conferral of esteem was going to cause substantial harm.

That's been on the books for the better part of a century, and--

Justice Samuel Alito: Is your argument limited to statements that a person makes about himself or herself?

Mr. Verrilli Jr.: --Yes.

It is.

That's the category that the statute regulates.

That is -- and it seems to me in a situation in which the statute is limited to factually verifiable information, the person is speaking about himself or herself, and the category of what's prescribed is clear.

Justice Samuel Alito: What's the principal reason for drawing the line there?

Suppose the statute also made it a crime to represent falsely that someone else was the recipient of a military medal, so that if someone said falsely and knowingly that a spouse or a parent or a child was a medal recipient, that would also be covered?

Mr. Verrilli Jr.: I think--

Justice Samuel Alito: That would be protected by the First Amendment?

Mr. Verrilli Jr.: --I think that would be -- that would be a case in which under the "breathing space" principles that this Court applies when we're talking about calculated factual falsehood, you have to answer a question, which is, how much risk is there of chilling constitutionally protected speech, because when you're talking about somebody else--

Justice Antonin Scalia: I don't see any difference as far as that risk goes.

I -- I hope that in your earlier colloquy with Justice Kennedy, you -- you were not retreating from what our cases have repeatedly said, that there is no First Amendment value in falsehood.

Mr. Verrilli Jr.: --And that only -- and that--

Justice Antonin Scalia: Now this doesn't mean that every falsehood can be punished, because in -- in punishing some falsehoods you -- you risk deterring -- deterring truth.

Mr. Verrilli Jr.: --And that's -- that was what I was trying to say in response to Justice Alito's question.

You have--

Justice Antonin Scalia: I believe that there is no First Amendment value in -- in falsehood.

Mr. Verrilli Jr.: --You have to answer the question in that case of whether there was a material risk of deterring expression that's truthful because -- what -- who knows whether your grandfather was telling the truth when he -- when he said he won the medal, and so you -- it may be a more difficult case.

But under the Court's "breathing space" principles, that's the question that one would have to answer.

Justice Elena Kagan: General, is there--

Justice Ruth Bader Ginsburg: --Well, the assumption -- the assumption is that it's false, that was -- and that it's not so hard to find out if somebody claimed to have the Medal of Honor and he doesn't.

So that -- first you answered yes, that it's only self, and now you said, no, it can be -- or at least I think you said -- making a false statement of fact.

And the concern is -- and I gave you the question of just in the service, leaving out the decorations -- other statements of fact, false statements like

"I deny that the Holocaust ever occurred. "

That's a statement, a false statement of fact, isn't it?

Mr. Verrilli Jr.: Yes, it could be.

I think a statute seeking to regulate that, Justice Ginsburg, would have viewpoint discrimination problems of the kind that the Court identified in R.A.V., and I think also under the Court's "breathing space" analysis you would -- you'd have to look long and hard and have significant concerns about that kind of a -- a statement, because it's so bound up with matters of ideological controversy that -- that you'd want to exercise care, but that's really quite different from what we have here.

This is a pinpoint accuracy, a specific verifiable factual claim about yourself having won a medal.

Chief Justice John G. Roberts: I want to follow up on Justice Scalia's question, because I'm not sure I understood.

The government's position is that there is no First Amendment value in a false representation of fact, by which I understand you to mean not parody or something like that, but a statement that's intended to be understood as true.

There is no First Amendment value in that statement.

It may be protected because of the "breathing space" argument, but in whatever context, in whatever guise, there is no protection in that false representation as such.

Mr. Verrilli Jr.: Well, that is the position we've taken in this case, Your Honor.

The reason we've taken it is because we read the Court's precedents, Gertz and many others, Falwell v. Hustler, as saying precisely that.

In fact, Falwell goes a step further and says false statements of fact are affirmatively harmful to First Amendment interest because they impede the -- the search for truth.

That's -- so our -- our position is based on the precise language of cases stretching back a half a century.

Garrison said calculated falsehood is a category of speech that is no part of the expression of ideas of the search for truth, and then it cites Chaplinsky--

Justice Elena Kagan: --General, what about these State statutes -- there are more of them than I thought that there would be -- that say no demonstrable falsehoods by a political candidate in a political race, and prohibit demonstrable falsehoods by political candidates?

How would your analysis apply to those?

Would they come out the other end as constitutional?

Mr. Verrilli Jr.: --I think that those kinds of statutes are going to have a lot harder time getting through the Court's "breathing space" analysis because the context in which they arise is one that would create a more significant risk of chill--

Justice Elena Kagan: Well, suppose it says demonstrable falsehoods about yourself--

Mr. Verrilli Jr.: --I think--

Justice Elena Kagan: --just about your qualifications, about what you've done in your life, your -- you know, whether you have a Medal of Honor, whether you've been in military service, whether you've been to college.

So any demonstrable statement that a candidate, political candidate, makes about himself.

Mr. Verrilli Jr.: --Yeah.

I think under the Court's "breathing space" analysis, because of the political candidate context, those statutes are going to pose a particular risk of chill, that this statute does not pose because this is a statute about verifiable factual falsehoods.

Justice Elena Kagan: I guess I don't understand why it would be more chilling in the one case than in the other.

They are the same kind of statement.

And one knows the same sorts of things about oneself.

Mr. Verrilli Jr.: Well, I think the idea would be, in a situation like that one, the government's power and authority is being trained specifically on the political process and statements in the political process, and this is -- this is quite different.

This is a statute that says--

Justice Elena Kagan: Well, I assume that that would be in the case of the State statutes because the State feels that it has a specially important interest in maintaining the political sphere free of lies.

Mr. Verrilli Jr.: --I guess the chilling effect seems to me, at least, to be materially different than in a situation like this one, where what we're talking about is a very specific pinpoint thing, one thing: Have you been awarded a military honor or not?

And a statement that is about yourself only, not about somebody else, and is supported by a quite strong particularized interest in ensuring the integrity of the military honor.

Justice Antonin Scalia: I suppose that even in the commercial context we allow a decent amount of lying, don't we?

It's called puffing.

Mr. Verrilli Jr.: Well--

Justice Antonin Scalia: Although -- although, you know, making false representations to sell a product is unlawful, we do allow puffing, don't we?

Mr. Verrilli Jr.: --Well certainly.

Justice Antonin Scalia: You won't buy it cheaper anywhere else.

Mr. Verrilli Jr.: That's -- that's certainly right.

But -- and that is the line--

Justice Antonin Scalia: So maybe we allow a certain amount of puffing in political speech as well.

Mr. Verrilli Jr.: --And I do think--

Justice Antonin Scalia: Nobody believes all that stuff, right?

Mr. Verrilli Jr.: --I do think the Court's -- I do think the Court's breathing space analysis would call for that, I think that's true.

But this is a different concept.

Chief Justice John G. Roberts: I suppose it might have something to do with, whether called collateral or not, I mean, I would think the concern in the midst of a political campaign is you have the U.S. attorney or the deputy district attorney bringing a -- filing a prosecution of someone 2 weeks before the election saying, you lied about this or that and maybe there would have to be a deposition or maybe there would have to be a trial.

Nothing like that is involved here.

Mr. Verrilli Jr.: Nothing at all, Your Honor.

And that is what I was trying to say--

Justice Anthony Kennedy: Well, it seems to me your best analogy is the trademark analogy, Olympic case, et cetera.

You put that in a rather minor -- not as an afterthought, but it's a secondary argument in your brief.

It seems to me it's the strongest one.

The whole breathing space thing almost has it backwards.

It presumes that the government is going to have a ministry of truth and then allow breathing space around it, and I just don't think that's our tradition.

On the other hand, I have to acknowledge that this does diminish the medal in many respects.

Mr. Verrilli Jr.: --Yes, and that's the government's interest here, and we do think that that kind of -- I think, Your Honor, that the reason that I think our -- we have a lot of slippery slope type questions here today, but I would urge the Court not to -- not to decline to make a sound decision about this statute based on concern about not being able to draw the line, because this statute is as narrow as you can get.

Justice Sonia Sotomayor: General, but I have a problem, which is it's not as narrow as it could get.

Wouldn't take much to do exactly what Congress said it was doing, which was to protect against fraudulent claims of receiving a medal, and the example it used was someone who used a fraudulent claim of receiving a medal to get money.

What I'm trying to get to is, what harm are we protecting here?

I thought that the core of the First Amendment was to protect even against offensive speech.

We have a legion of cases that said your emotional reaction to offensive speech is not enough.

If that is the core of our First Amendment, what I hear, and that's what I think the court below said, is you can't really believe that a war veteran thinks less of the medal that he or she receives because someone's claiming fraudulently that they got one.

They don't think less of the medal.

We're reacting to the fact that we're offended by the thought that someone's claiming an honor they didn't receive.

So outside of the emotional reaction, where's the harm?

And I'm not minimizing it.

I too take offense when people make these kinds of claims, but I take offense when someone I'm dating makes a claim that's not true.

Mr. Verrilli Jr.: As a father of a 20-year-old daughter, so do I, Justice Sotomayor.

But if I could take a minute on the interest, because I do think it's quite important.

I mean, on some level of course it is true that no soldier charges up Mount Suribachi thinking, well, I'm going to do this because I'll get a medal if I get to the top.

That's not what the military honor system--

Justice Sonia Sotomayor: Or I'm not going to do this because the medal has been debased.

Mr. Verrilli Jr.: --That's not -- well, that's not what the honor system is about.

The honor system is about identifying the attributes, the essence, of what we want in our service men and women -- courage, sacrifice, love of country, willingness to put your life on the line for your comrades.

And what the medals do is say to, to our military, this is what we care about.

It's what George Washington said in 1782 when he set up the honor system.

It's designed to cherish -- it's designed to cherish a valorous ambition in soldiers and to encourage every species of military merit.

And what I think with respect to the government's interest here and why there is a harm to that interest is that the point of these medals is that it's a big deal.

You get one for doing something very important after a lot of scrutiny.

And for the government to say this is a really big deal and then to stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers.

It does do that.

That is the government's interest.

We think that is a real and substantial interest, and it's threatened here--

Justice Sonia Sotomayor: But the reality here is that this gentleman was publicized, deriled for what he did.

His public position was compromised, as is the case with almost everyone who's caught at lying.

Mr. Verrilli Jr.: --But, given that this is a category of calculated factual falsehood, we think the government has the authority and the constitutional -- and the constitutional space to try to deter this kind of speech, as well as allow for private attorneys.

If I might--

Justice Ruth Bader Ginsburg: Did the military -- did the military ask for this?

You're claiming there's a special interest in seeing that a military honor is not debased.

Mr. Verrilli Jr.: --It did not, Justice Ginsburg, but under Article I, section 8, Congress has substantial authority to regulate our armed forces, get substantial deference.

It's not unlike the statute that the Court evaluated in the FAIR case in that regard, which was not a statute that the military -- that the military asked for, but Congress nevertheless was given substantial deference.

Justice Antonin Scalia: Did the Commander in Chief sign that, that legislation?

Mr. Verrilli Jr.: Yes, he did, Your Honor.

Thank you.

Chief Justice John G. Roberts: Thank you, Mr. Verrilli.

Mr. Libby.

ORAL ARGUMENT OF JONATHAN D. LIBBY ON BEHALF OF THE RESPONDENT

Mr. Libby: Thank you, Mr. Chief Justice, and may it please the Court: The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie.

It doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member.

And the law punishes false claims to a military award regardless of whether harm results or even is likely to result in an individual case.

Chief Justice John G. Roberts: What is -- what is the First Amendment value in a lie, pure lie?

Mr. Libby: Just a pure lie?

There can be a number of values.

There is the value of personal autonomy.

Chief Justice John G. Roberts: The value of what?

Mr. Libby: Personal autonomy.

Chief Justice John G. Roberts: What does that mean?

Mr. Libby: Well, that we get to -- we get to exaggerate and create--

Chief Justice John G. Roberts: No, not exaggerate -- lie.

Mr. Libby: --Well, when we create our own persona, we're often making up things about ourselves that we want people to think about us, and that can be valuable.

Samuel Clemens creating Mark Twain.

That was creating a persona, and he made things up about himself--

Chief Justice John G. Roberts: Well, but that was for literary purposes.

No one is suggesting you can't write a book or tell a story about somebody who earned a Medal of Honor and it's a fictional character, so he obviously didn't.

It just seems to me very different.

Mr. Libby: --Perhaps.

But there are other things.

In addition to the fact that people tell lies allows us to appreciate truth better.

Justice Samuel Alito: Do you really think that there is -- that the First Amendment -- that there is First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself, because that person would like to create a particular persona?

Gee, I won the Medal of Honor.

I was a Rhodes scholar, I won the Nobel Prize.

There's a personal -- the First Amendment protects that?

Mr. Libby: Yes, Your Honor, so long as it doesn't cause imminent harm to another person or imminent harm to a government function.

Justice Stephen G. Breyer: Obvious example.

Are there Jews hiding in the cellar?

No.

Mr. Libby: Well, that's right.

Chief Justice John G. Roberts: That's not a statement about one's self.

This is--

Mr. Libby: And that's--

Justice Stephen G. Breyer: Are you hiding Jews in the cellar?

Chief Justice John G. Roberts: --Excuse me.

Sorry.

[Laughter]

Seems to me that the Stolen Valor Act is more narrow than that.

And I would say, in that situation, you would not describe what the individual in Justice Breyer's hypothetical was as simply telling a false statement about himself.

It is about whether there is someone hiding in the attic.

It is not about himself.

Mr. Libby: --Well, perhaps, just dealing with an example under the Stolen Valor Act, if a grandfather were to make up a story that he had won a medal in order to persuade a grandchild to--

Chief Justice John G. Roberts: In order to--

Mr. Libby: --to join the military--

Chief Justice John G. Roberts: --It seems to me that that's missing the limitation that the government has read into this statute: Not damage, not for parody, not to avoid the discovery of someone who should be hidden, not in order to do something with respect to one's grandson.

It's just a purely false statement about one's self.

What -- what -- what is the First Amendment value in that, again?

Mr. Libby: --Well, another value is the fact that the purpose of the First Amendment was a limit on government power.

It's -- it's -- our founders believed that Congress as a general principle doesn't get to tell us what we as individuals can and cannot say.

Chief Justice John G. Roberts: Well, of course they do in countless areas, the state does, whether you're talking about defamation, trademark, perjury, all sorts of things.

You can't adopt that as a general principle and apply it without regard to the situation.

Mr. Libby: Well, that's right, Mr. Chief Justice.

But in all of those examples, those are examples where we have harm attached to the falsehood.

Justice Antonin Scalia: Well, sometimes the harm is just impairment of governmental purposes, such as section 1001, which criminalizes the making of a false statement to any Federal agent, for Pete's sake.

How do you justify that?

Because the making of the false statement impairs a governmental investigation.

And what is being urged here is that the making of this type of a false statement impairs the government's ability to honor valorous members of the armed forces.

Mr. Libby: Well, we believe there is a difference there, Your Honor.

With respect to 1001, there's the substantial risk of imminent harm to a government investigation.

Whether it in fact causes that direct harm, there is still a significant risk of imminent harm resulting from telling a lie to a government investigator.

Justice Elena Kagan: But, Mr. Libby, you've suggested to us that we should apply strict scrutiny to all of these cases.

Now, almost nothing passes strict scrutiny.

Why should 1001 pass strict scrutiny?

I mean, it seems to me you're proposing a test that would invalidate all of the laws on the books regarding false statements.

Mr. Libby: Well, no, Your Honor.

What we're suggesting is false statements -- false statements laws do have a history in this country.

And the Court could recognize a historical category of imminent harm or potential risk of imminent harm to government functions.

And perjury certainly falls into that category.

1001 very well may fit into that category.

Since the beginning of our nation, Congress has passed these various false statement laws.

Justice Antonin Scalia: Do we give some deference to Congress as to whether there is a harm to governmental purposes or do we make it up ourselves?

When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished.

Mr. Libby: Well--

Justice Antonin Scalia: By charlatans.

That's what Congress thought.

Is that utterly unreasonable, that we can't accept it?

Mr. Libby: --Justice Scalia, it's not entirely clear what Congress thought here because Congress held no hearings on this.

It made a broad general finding that false statements -- on the reputation--

Justice Anthony Kennedy: Well, it's a matter -- it's a matter of common sense that it seems to me that it demeans the medal.

Let me ask you this: What do you do with the statute that prohibits the wearing of a medal that has not been earned?

Mr. Libby: --Wearing medals is a slightly different category because there you're dealing with conduct rather than content.

Justice Anthony Kennedy: Well, I'm not so sure.

You know, the Tinker case with the arm band; it's purely expressive speech, it seems to me.

I think if you prevail here that the wearing prohibition must also be in serious doubt.

Mr. Libby: It may be or it may be in doubt under certain situations where one is wearing a medal.

But certainly Congress has an interest in protecting non-expressive purposes of wearing the medals.

Justice Anthony Kennedy: I think it is, the whole purpose of the person who puts the medal on his tuxedo that he didn't earn is an expressive purpose.

That's pure expression.

Mr. Libby: It may be, Your Honor.

But again, we view it under a different prism.

Justice Ruth Bader Ginsburg: Why?

I mean, it's expressive.

One is I am speaking through conduct and the other is I'm speaking through words.

You wear the medal and you are saying, I am a Medal of Honor winner.

Mr. Libby: That's right.

And as I said, it may ultimately be the case that the Court finds that, if in fact it's unconstitutional--

Justice Ruth Bader Ginsburg: So you think wearing--

Mr. Libby: --this provision, that it could be.

Justice Ruth Bader Ginsburg: --that the wearing of a military decoration that you haven't earned, that that's also of questionable consistency with the First Amendment?

Mr. Libby: It may be.

But, again, it would depend on the circumstances.

Justice Ruth Bader Ginsburg: No circumstances.

You go out in the street with the medal on you for everybody to see.

Mr. Libby: If -- if there is -- if Congress does not have a non-speech purpose for prohibiting the wearing of the medals, then if it's strictly an expressive purpose, then, yes, there would be a significant First Amendment problem.

Justice Anthony Kennedy: Well, don't you think that's the case?

There is no non-expressive purpose that I can think of.

Mr. Libby: Well -- and that very well may be.

What I can say is in this case what we're dealing with is strictly a content-based regulation on speech.

Justice Samuel Alito: You acknowledge that the First Amendment allows the prohibition or the regulation of false speech if it causes at least certain kinds of harms.

And the problem I have with your argument is determining which harms you think count and which harms don't count.

Would you go as far as was suggested earlier to say that only pecuniary harm counts?

If you -- if you say that, then the -- the classic case of intentional infliction of emotional distress is unconstitutional, going up to someone and saying falsely, your -- your child has just been run over by a bus.

So how do we determine which harms are sufficient?

Mr. Libby: I believe -- what we believe the right way of looking at this is you -- you determine whether or not there is imminent harm or a significant risk of imminent harm to an individual or to a government function that would result from the speech.

Justice Samuel Alito: When you say imminent, you mean -- what do you mean by that?

Mr. Libby: I guess I'm suggesting the Brandenburg standard, which is--

Justice Samuel Alito: Well, if that's the standard then most of the prosecutions for making false statements to a Federal law enforcement officer are not going to survive, are they?

Mr. Libby: --Well, but the issue is what about the law.

And the issue with 1001 and those false statement statutes is the substantial risk of imminent harm to the government that could result from the falsehood.

So while certainly it may not result in a particular case, but the substantial risk of imminent harm--

Justice Samuel Alito: Well, then you're not really talking about imminent harm, I don't think.

You're just talking about harm.

Mr. Libby: --Well, when one lies to a government investigator, presumably you're doing it in order to send them in the wrong direction, even if it doesn't do that.

So the harm may not be there, but there is certainly a significant risk of harm that the government has the right to protect itself from.

And that's why we believe that's where you draw the line.

And that's where this Court appears to have drawn the line in those categories of speech that it has said are unprotected, such as--

Justice Elena Kagan: Mr. Libby, let's suppose that I agree with Gertz that there is no constitutional value in a false statement of fact, and the reason why we protect some false statements of fact is to protect truthful speech.

So if, if that's so, is -- how is it that this statute will chill any truthful speech?

What truthful speech will this statute chill?

Mr. Libby: --Your Honor, it's not that it may necessarily chill any truthful speech.

I mean, it's -- we certainly concede that one typically knows whether or not one has won a medal or not.

We certainly -- we concede that point.

Justice Elena Kagan: So, boy, I mean, that's a big concession, Mr. Libby.

Then you're saying, you can only win this case if this Court decides that the Gertz statement was a kind of overstatement, an exaggeration, puffery.

Mr. Libby: Well -- we do -- well, we do have the situation where we believe the statute currently does cover: Someone could be prosecuted for engaging in parody or satire or exaggeration.

Certainly there is nothing on the face of the statute to suggest that those--

Justice Ruth Bader Ginsburg: But the government has said: That's not how we read the statute, and the courts read statutes to avoid a constitutional collision.

So let's assume that we are not going to cover performances, satire; it's just a baldfaced lie.

That's all that this covers.

Mr. Libby: --Then it's still our position that it's still a -- that all speech is presumptively protected unless we go back and it fits into one of the historical categories of speech that this Court has found historically is unprotected.

And there falsity certainly has never previously been recognized by this Court as being an unprotected category of speech.

Justice Sonia Sotomayor: Counselor, it might--

Chief Justice John G. Roberts: I don't understand the government to argue that the speech at issue here is totally unprotected.

I understand them to argue -- I mean, it is totally unprotected.

I understand them to argue that it can be limited under its "breathing space" rationale.

In other words, it's not within one of the categories of totally unprotected speech.

You do have to analyze it under the First Amendment and you analyze it to determine if it chills protected speech.

Mr. Libby: I suppose I read the government's argument differently.

As I read the government's argument, it's that it's entitled to, at most, limited protection.

So the government seems to start from the presumption that it's not fully protected speech, whereas, of course, what we should be starting with is the presumption that it is fully protected speech unless this Court has previously said it's in one of these historical categories of unprotected speech.

Justice Sonia Sotomayor: --May I -- if I understood your argument, you're saying historically we have not protected false statements that cause harm.

I think that's your argument.

Mr. Libby: That's correct, yes, Your Honor.

Justice Sonia Sotomayor: All right.

Assuming -- so it's -- we do protect false statements presumptively, but the historical exceptions, like defamation, are those that cause harm.

So I go back to Justice Alito's question, because you really haven't answered his question.

You've dealt with the government process cases, although we could argue about whether that's protecting a process or protecting a government right to truthful information.

That's a different issue.

But the question is how do you deal with the intentional infliction of emotional distress?

Because damage, we require injury, and it's defined under law what kind of injury.

So tell me how you define harm in the nongovernmental situation, number one, and then tell me why that -- this situation doesn't fit that definition.

Mr. Libby: Well, in the situation with intentional infliction of emotional distress, you're arguing with an instantaneous harm, a mental distress that results from the false statement.

So there -- there's imminent harm as a result of -- that results in intentional infliction of emotional distress, a false light false--

Justice Sonia Sotomayor: So why isn't the outrage that medal winners, legitimately entitled medal winners, experience in seeing fake people, hearing fake people claim a medal, why isn't that comparable?

Mr. Libby: --Well, I don't believe that fits into the same category of mental distress that we look at in intentional infliction of emotional distress.

Certainly people are entitled to be upset by these false claims.

I mean, I'm personally upset by these false claims.

But the fact that there is a certain level of upset doesn't mean that you're harmed in the sense of, of the intentional infliction of emotional stress tort, and so what we're dealing with here is simply a non-instantaneous harm.

Now what the government has suggested is that there is no harm that really results from a single claim; that Mr. Alvarez's falsehood did not cause harm to any individuals.

Justice Samuel Alito: It seems to me what you're arguing is that we should determine that there are certain harms that are sufficient to allow the prohibition of a false statement and there are certain harms that are not sufficient, irrespective of what judgment Congress made about the significance of those harms.

Is that -- is that accurate?

Mr. Libby: That's certainly part of it.

I mean, we believe that there needs to be imminent harm, that it needs to be targeted harm to an individual or to -- to government function, that it can't be the type of diffuse harm that the government goes to place here--

Justice Stephen G. Breyer: Why not?

Because, after all, we're willing to protect the Olympics Committee when a false person saying he's the Olympics Committee might deprive the Olympics Committee of a penny, while here they are saying that to win this great medal, say the Congressional Medal of Honor, the highest award in the military the nation can give, you're deserving of the most possible, grandest possible respect, and we don't even want you to have to think about somebody having taken that name falsely, and so we will just criminalize it to discourage such activity that undermines the very thought and purpose of giving the medal.

All right.

So I'm just saying in my mind there is real harm, and there is real harm and yet I can think of instances where we do want to protect false information.

And I want you to accept that as a given because that isn't my question.

My question is: If I'm right that there are very good First Amendment reasons sometimes for protecting false information, and if this also would cause serious harm that the government is aiming after, are there less restrictive ways of going about it?

And, if so, what and why?

Mr. Libby: --There are.

First of all, more speech.

There is time to fix the problem.

If someone tells a lie about having received an honor, there is time for them to be exposed.

And in fact that's what typically happens--

Justice Antonin Scalia: The government is going to hire people to follow, you know -- is that realistic?

Mr. Libby: --Well, what--

Justice Antonin Scalia: I mean, there is a sanction.

You know when there is a sanction in place you think twice before you tell the lie.

But if there is no sanction except you might be exposed, who's going to expose you?

That sanction already exists, and there are a lot of people nonetheless who tell the lie.

You really expect the government to hire investigators to go around the country outing people who falsely claim military honors?

That's not going to happen.

Mr. Libby: --Well, Justice Scalia, isn't that exactly what's happening right now with this law?

Because the law is on the books, the law is sending FBI agents out to investigate these allegations.

How do they find out about it?

It's because it's reported.

Individuals hear the statement and they think it may be false.

They investigate it.

And -- and, and conduct their own investigations.

So that's what happens.

And that's what's supposed -- that's -- that's the whole idea of more speech.

Justice Stephen G. Breyer: Is there anything else -- under that circumstance, that the threat of criminal prosecution might discourage from lying, who would never be caught.

So at least as to that set, exposure won't work.

So you have a less restrictive alternative that helps some but not completely.

Are there others?

Mr. Libby: Well, of course if you're never caught, then under the government's theory, then no one has been harmed individually or--

Justice Stephen G. Breyer: Not under my theory.

My theory is that it does hurt the Medal, the purpose, the objective, the honor, for people falsely to go around saying that they have this medal when they don't.

Okay?

So I might be wrong about that.

I just ask you to assume that for purposes of argument, because what I'm trying to get to is I want as big a list as I can to think about of what the less restrictive alternatives are, or might be.

Mr. Libby: --Sure.

The military can redouble its efforts at honoring those who are in fact entitled to the awards.

There was a Congressional hearing that suggested that the military has been a little lax in identifying true heroes and awarding them medals.

So that can be done.

The government can publicize the names of true winners.

It could create educational programs to let the nation know what it takes to win these awards, what these awards are, who has won them.

All the heroic activities--

Justice Antonin Scalia: How about giving a Medal of Shame to those who have falsely claimed to have earned the Medal of Valor?

[Laughter]

I think that would be good.

Mr. Libby: --Well, Your Honor -- actually, that's certainly something the government could do.

Chief Justice John G. Roberts: Well, not under your theory, right?

I mean, it's still a sanction for telling something that you say is protected under the First Amendment, whether you get 6 months or a Medal of Shame doesn't matter under your theory.

Mr. Libby: Well, there is a significant difference between a criminal sanction that puts someone in prison versus simply exposing them for what they are, which is a liar.

And Mr. Alvarez, whether or not he in fact was sentenced to a crime, he still was exposed for who he was, which was a liar.

Justice Ruth Bader Ginsburg: Suppose -- suppose the statute were amended, as has been proposed, to require an intent to obtain anything of value.

Mr. Libby: That would turn the law into a fraud statute.

And of course, fraud is an unprotected category of speech.

So that certainly would be a constitutional law.

Justice Ruth Bader Ginsburg: But that wouldn't -- that wouldn't reach this speaker.

Is that -- that wouldn't reach Alvarez, because he didn't obtain anything of value.

Mr. Libby: Well, that's -- I mean, that's not what we have here.

What we do know is that Mr. Alvarez did not obtain a thing of value.

Chief Justice John G. Roberts: How do we -- how do we know that?

He was politically active, right?

Mr. Libby: Yes.

Chief Justice John G. Roberts: Doesn't it help a politician to have a Congressional Medal of Honor?

Mr. Libby: Perhaps, Your Honor.

I mean, for -- certainly there are many people out there that would consider that to be a great thing.

There are also a lot of people out there who don't know what it is.

And so to them, it might not mean a whole lot.

Chief Justice John G. Roberts: But it seems to me that your willingness to say that this statute is valid so long as there's some benefit to the person who lies, it's an awfully big concession.

Mr. Libby: Well, it would -- if it -- again, if Congress were to amend the law to require that it be done with the intent to obtain a thing of value, again, it becomes fraud.

And fraud is something that the government does have the right to prosecute.

Justice Antonin Scalia: So a thing of value, it has to be something of commercial value, right?

Just to obtain praise and the higher esteem of your fellow citizens, that's -- that's not enough.

Mr. Libby: Well, Your Honor--

Justice Antonin Scalia: You have to get a penny out of it, right?

Mr. Libby: --As I understand the proposed amendment, it just says anything of a non de minimis value.

How that is ultimately interpreted--

Justice Anthony Kennedy: Just a basic definition of fraud in the criminal law.

Mr. Libby: --That's right.

Now, could it -- could it be a nonpecuniary thing of value?

As it's currently proposed, yes.

Chief Justice John G. Roberts: So if he -- so if he makes this statement at a debate when he's running for office, then you can prosecute him, because getting the office is presumably something of value.

It presumably has some pecuniary aspect to it.

Mr. Libby: Perhaps, Your Honor.

And, again, it may come down to how the courts ultimately interpret a thing of value.

It's not clear that simply trying to obtain a vote from somebody is necessarily a thing of value, would be considered a thing of value.

Obviously, if you promise to give up your votes in office in return for support, that would be a little different.

Justice Antonin Scalia: What if he just gets the cheers of the crowd, he's up there.

I'm a Congressional Medal of -- the crowd cheers and they give him a parade down Main Street.

Is -- is that something of value?

Mr. Libby: It -- it could be.

Again, it -- it will come down to over time, how that ultimately gets--

Justice Samuel Alito: But that's not -- the answer is would the First Amendment permit that.

Mr. Libby: --That's a difficult question, Your Honor.

Justice Samuel Alito: Well, that's sort of the question we have to answer here.

[Laughter]

Mr. Libby: Sure.

I get that.

Justice Samuel Alito: Suppose what the person gets is -- is a date with a potential rich spouse.

Would that be enough?

Mr. Libby: Your Honor, I think when it comes -- when you get into the situation where you're getting something like a date, I do not know that -- I certainly wouldn't consider that a non de minimis thing of value, but--

Justice Samuel Alito: Some people might have a different opinion.

[Laughter]

Mr. Libby: --Well, that -- that -- and that may be, which is why, should that ultimately become the law, courts would have to look at that very closely.

Justice Stephen G. Breyer: Well, how would it work in the law now, where we have similar statutes, and there's an additional requirement when you're imitating, say, a Federal officer or somebody else you shouldn't, you have to perform an overt act that asserts authority that the impersonator claims to have.

What does that add?

Does it add enough to just make it not pure speech, to limit -- to wall off the things about -- the things that we're worried about in the First Amendment.

Or there's another one, you have to falsely assume or exercise powers, duties and privileges.

Those are ways statutes have of limiting this thing.

How does that work?

Mr. Libby: Well, when you get into the issue of impersonation, then you're -- the Court perhaps would be assessing it under the amount of imminent harm to an individual that can--

Justice Stephen G. Breyer: Nothing to do with harm.

It's a way of walling off things that are of concern under the First Amendment from those that aren't.

And what they use -- I read you what they use -- performing -- you know -- you know the language; it's written about in the briefs.

I just want to know how you would think about a statute that imported that kind of language, which is limiting language.

Mr. Libby: --It would be important, certainly in the First Amendment context, to limit the language as much as possible.

You want to make it as narrow as possible, because, again, we're supposed to start from the presumption that we -- we have the right to say pretty much what we want to say, and then we start to limit it where.

Again -- and, I guess, it goes again back to what this Court said in Stevens and Entertainment Merchants, which is, is it one of these historically unprotected types of speech that is not entitled to constitutional protection?

Unless the Court has additional questions--

Chief Justice John G. Roberts: Thank you, Mr. Libby.

General Verrilli, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE PETITIONER

Justice Anthony Kennedy: My -- my only -- one of my questions is the slippery slope problem, college degrees and so forth.

Could you address that?

Mr. Verrilli Jr.: Yes, Your Honor.

The -- think the "breathing space" analysis does a very substantial degree of work in controlling what Your Honor is describing as a slippery slope problem.

The government's got to have a substantial interest--

Justice Anthony Kennedy: But--

Mr. Verrilli Jr.: --the statute's got to be narrowly drawn.

It's got to meet all of those--

Justice Anthony Kennedy: --College degrees.

Mr. Verrilli Jr.: --Well, as I think I said in my -- in my opening statement, that -- I actually think that's a case in which you could argue that one either way, because there might be, if the government articulated a substantial interest in protecting its--

Justice Elena Kagan: How about extramarital affairs?

Mr. Verrilli Jr.: --Excuse me, Your Honor?

Justice Elena Kagan: The government has a strong interest in the sanctity of the family, the stability of the family, so we're going to prevent everybody from telling lies about their extramarital affairs.

Mr. Verrilli Jr.: In addition to the -- in addition to the governmental interests, Your Honor, there's -- it's got to be tailored in a way that avoids chill, and I think it would be very difficult in that situation--

Justice Elena Kagan: This isn't about the person's own experience, that the person knows everything about; you either had one or you didn't have one.

Mr. Verrilli Jr.: --That's right.

And that's a hard case.

But I do think, with respect to the chilling effect analysis, you -- you would, I think, have a great deal of difficulty sustaining that statute.

But of course, that's not the kind of statute that we have here.

This is a targeted statute that's designed to deal with a particular--

Justice Stephen G. Breyer: The trouble is you can think of 10,000 instances that meet your criteria that one candidate or another could bring up in a political campaign -- and we don't know what will come up, but I can easily think of examples.

And then if this is lawful and constitutional, then you have people in political campaigns suddenly worrying that the U.S. attorney is going to come in and start indicting him.

That's part of the chilling effect.

And you've assumed you can get around this chilling effect, but I'm less certain.

Mr. Verrilli Jr.: --Well, I think -- but that's where I think the "breathing space" analysis requires before a statute gets upheld that it not have that kind of chilling effect.

Justice Antonin Scalia: You have to--

Mr. Verrilli Jr.: --this statute doesn't and that's the key here.

This statute doesn't.

Justice Sonia Sotomayor: Counsel, it seems to me that you're asking us to value the speech in context.

We're not talking about the effect of the speech and whether you can regulate that.

You're asking us to say, you know, the guy who says he's a college graduate in a political campaign, that could chill political speech.

So in that lie in that context, you can't sanction.

But you can sanction that lie in a different context.

On a date.

I don't know, because on a date, it doesn't chill political speech, and it will induce a young woman to date someone who she thinks is more of a professional, because that harms the parents, it harms the family.

Mr. Verrilli Jr.: May I answer, Mr. Chief Justice?

Chief Justice John G. Roberts: Oh, yes.

Mr. Verrilli Jr.: Thank you.

The Respondent has conceded that this statute chills nothing.

That should be a sufficient answer to Your Honor's concern that with respect to other statutes in the future, they can be evaluated to determine whether or not they impose a -- a chill that would lead as an instrumental matter to the conclusion that they ought not to be found to satisfy the First Amendment.

As Respondent concedes, there is no chill here, so this statute is constitutional.

Thank you.

Chief Justice John G. Roberts: Thank you, General, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Kennedy has the announcement today in Case 11-210, United States versus Alvarez.

Justice Anthony Kennedy: This is an opinion announcing the judgment of the Court in United States versus Alvarez.

Lying was his habit.

Xavier Alvarez is the respondent here.

He lied when he said he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico, but when he lied in announcing he held the Congressional Medal of Honor, respondent ventured on to new ground, for that lie violates a federal criminal statute, the Stolen Valor Act of 2005.

Respondent was elected to the Three Valley Water District Board in California.

At a board meeting, he introduced himself by claiming that he'd been a marine for 25 years, had been wounded in combat and who won the Congressional Medal -- Medal of Honor, and none of these statements were true.

The Stolen Valor Act, a federal statute, provides that whoever falsely claims to have won the Congressional Medal of Honor can be fined or imprisoned for up to one year.

Alvarez was convicted under the statute, but the United States Court of Appeals for the Ninth Circuit reversed.

It found the statute invalid under the First Amendment.

After we granted certiorari, the United States Court of Appeals for the Tenth Circuit in an unrelated case found that the Act was constitutional so now, there's a conflict in the circuits.

It's right and proper that Congress, over a century ago, established an award so the Nation can hold in its highest respect and esteem those who, in performing the supreme and noble duty of contributing to the defense of the rights and honor of this Nation, have acted with extraordinary valor.

Fundamental constitutional principles, however, require that laws enacted to recognize the brave must be consistent with the precepts of the Constitution for which they fought.

As a general matter, this Court has permitted content-based restrictions only when they are confined to one of the few historic and traditional categories of expression, defamation, obscenity and fraud are among these few categories of punishable speech.

Absent from those few categories, where the law does allow content-based restriction of the speech, is any general exception to the First Amendment for false statements.

A federal criminal statute does prohibit lying to a government official, but statutes of that sort are inapplicable here.

This Court has not endorsed the categorical rule that false statements receive no First Amendment protection.

By its plain terms, the Stolen Valor Act applies to speech made at anytime, in any place, to any person and it does so entirely without regard to whether the lie was made for the purpose of material gain.

Permitting the Government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable.

That governmental power has no clear limiting principle.

All this suffices to show that how the Act conflicts with free speech principles.

But even when examined in its own narrow sphere of operation, it cannot survive.

In assessing content-based restrictions on protected speech, we've applied the most exacting scrutiny.

The Government has a legitimate and even compelling interest in protecting the integrity of its system of military honors, especially with regards the Congressional Medal of Honor, and the opinion recites the history of -- of the Medal.

Although millions have served, the award has been given only 3476 times in our Nation's history.

The rare acts of courage the Medal celebrates led President Truman to say he would "I rather have that medal around my neck than be President of the United States”.

The stories of those who have won the Medal inspire and fascinate, and it's indicated just a few of those historical accounts, were recited in the opinion but that does not end the inquiry.

The restriction on speech must be necessary to achieve the Government's interest.

There must be a direct causal link between the restriction imposed and injury to be prevented.

The Government has failed to demonstrate this link.

Beyond general appeals to common sense, the Government provides no evidence suggesting that the public's general perception of military medals is diminished by false claims like those Alvarez made.

In fact, the contrary appears true.

Counter speech has long been the First Amendment's preferred method for responding to falsity.

In this case, the record demonstrates that even before the FBI began its investigation, respondent was perceived as an impostor.

Once his lie was exposed, he was ridiculed online and his resignation was called for publicly.

The outrage over respondent's lie of anything served to reenforce the public's respect for the Medal and its true recipients.

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.

The Stolen Valor Act infringes upon speech protected by the First Amendment.

The judgment of the United States Court of Appeals for the Ninth Circuit is affirmed.

Justice Breyer has filed an opinion concurring in the judgment, in which Justice Kagan joins.

Justice Alito has filed a dissenting opinion, in which Justices Scalia and Thomas joined.