Bench Memos

Stolen Valor Act Case

As has been widely reported, yesterday the Supreme Court granted review of the Ninth Circuit’s decision in United States v. Alvarez that the Stolen Valor Act of 2005 violates the First Amendment’s guarantee of free speech. The Stolen Valor Act criminalizes a person’s false representation that he has “been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States [or] any of the service medals or badges awarded to the members of such forces.” A central issue raised by the case is whether and when and to what extent false statements are protected by the First Amendment.

For a good statement of the competing positions, I’d recommend that you first read Judge O’Scannlain’s dissent from the Ninth Circuit’s denial of rehearing en banc (which begins at page 3763 of this order).* Judge O’Scannlain reads Supreme Court precedents to stand for the proposition that false statements of fact are not in and of themselves protected by the First Amendment and that whatever constitutional protection they receive is derivative of necessary protection for non-false speech. As he puts it, “As described by the Supreme Court itself [in Gertz v. Robert Welch, Inc., the Court’s opinion in New York Times v.] Sullivan stands for the simple proposition that we must ‘protect some falsehood in order to protect speech that matters.’” (Emphasis added by Judge O’Scannlain.)

I’d recommend that you then read Judge Milan Smith’s opinion concurring in the denial of rehearing en banc (which begins at page 3744). (If you read Judge Smith’s opinion first, I think that you will find it difficult to discern the actual position that he is taking issue with. That difficulty is even greater with Judge Kozinski’s colorful concurring opinion (which begins at page 3756).)

SCOTUSblog (from which I’ve obtained the links) has more materials on the Alvarez case here.

* I haven’t read Judge Bybee’s dissent from the original panel decision, so I’m not opining that Judge O’Scannlain’s dissent from the denial of rehearing en banc (a dissent which Judge Bybee, among others, joined) is a better resource than Judge Bybee’s dissent.

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