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.

Most Popular


Our Cultural Crisis: A Kirkian Response

Editors’ note: The following article is adapted from a speech the author delivered at the Heritage Foundation on March 14, 2018. Few would dispute that we are in the middle of a grave cultural crisis. A despairing conservative critic wrote: “We are on the road to cultural disaster.” He placed the ... Read More

Confirm Pompeo

What on earth are the Democrats doing? President Trump has nominated CIA director Mike Pompeo, eminently qualified by any reasonable standard, to be America’s 70th secretary of state. And yet the Senate Democrats, led by Chuck Schumer, have perverted the advice and consent clause of the Constitution into a ... Read More

The Mournful, Magnificent Sally Mann

‘Does the earth remember?" The infinitely gifted photographer Sally Mann asks this question in the catalogue of her great retrospective at the National Gallery in Washington. On view there is her series of Civil War battlefield landscapes, among the most ravishing works of art from the early 2000s. Once sites ... Read More
PC Culture

The Dark Side of the Starbucks Stand-Down

By now the story is all over America. Earlier this month, two black men entered a Starbucks store in Philadelphia. They were apparently waiting for a friend before ordering — the kind of thing people do every day — and one of the men asked to use the restroom. A Starbucks employee refused, saying the restroom ... Read More

Save the Eighth

There are many things to admire in Ireland’s written constitution. Most especially, the text includes, since a popular referendum in 1983, the Eighth Amendment: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to ... Read More
White House

The Comey & Mueller Show

It has been a good week for President Trump. Justice Department inspector general Michael Horowitz provided indisputable evidence that former FBI deputy director Andrew McCabe lied at least four key times and was fired by the attorney general for cause -- and that Mr. Trump had nothing to do with it. McCabe and ... Read More