Don't overlook the Supreme Court's Alvarez decision today when reading about another important decision issued by the Court today – the one that upholds the Affordable Care Act.  The Court's finding the Stolen Valor Act unconstitutional opens up some First Amendment arguments in the criminal sphere.

The test provided by the plurality decision is that "there must be a direct causal link between the restriction imposed and the injury to be prevented."

Justice Kennedy (joined by Roberts, Ginsburg, and Sotomayor) found that the respondent who lied about receiving a Congressional Medal of Honor, in direct contravention of a federal criminal statute – the Stolen Valor Act of 2005 (18 U.S.C. s 704) had a first amendment protection. The decision reminds us that there are certain content-based restrictions that are permitted –

"Among these categories are advocacy intended, and likely, to incite imminent lawless action, obscenity, defamation, speech integral to criminal conduct; so-called 'fighting words'; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent" (citations and parentheticals from the decision omitted here)

This opinion states that "[t]hese 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."  But the Court also notes that there is no "general exception to the First Amendment for false statements."  And specifically when considering defamation it says "that falsity alone may not suffice to bring the speech outside the First Amendment.  The statement must be a knowing or reckless falsehood."

That said, this opinion distinguishes statutes such as the false statement statute (s 1001); perjury (s 1623) and false representing that one is speaking on behalf of the Government (s 912).

Although this opinion stresses the importance of the military medals – as it should, it questions whether the "government's chosen restriction on the speech at issue [is] 'actually necessary ' to achieve its interest."

The key test used here – "There must be a direct causal link between the restriction imposed and the injury to be prevented."

The opinion ends by stating:

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."

Justices Breyer and Kagan offer a concurrence that stresses that there is a less restrictive way to achieve the government's goal. They suggest using "intermediate scrutiny" here in evaluating this case, but also hold that "[t]he Government has provided no convincing explanation as to why a more finely tailored statute would not work."

Dissenting are Justices Alito, Scalia, and Thomas. They note that the statute is limited in several different ways. They argue that "false statements of fact merit no First Amendment protection in their own right"  and that it is a narrow law.

Commentary to follow.

(esp)