The Stolen Valor Act as Constitutional: Bringing Coherence to First Amendment Analysis of False-Speech Restrictions

Abstract

The Stolen Valor Act of 2005 makes it a crime for an individual to falsely represent that he has been awarded a military honor. Whether the Stolen Valor Act violates the First Amendment as an impermissible content-based restriction of speech is a legally contentious issue. The Ninth Circuit struck down the Act as unconstitutional, with Judge Bybee authoring an extensive dissent and seven judges dissenting from the denial to rehear the case en banc. And district courts are split on the Stolen Valor Act’s constitutionality.

This split is largely due to the absence of any systematic approach for assessing the First Amendment status of false factual speech restrictions outside of the context of defamation law. This Comment argues that Supreme Court and lower court precedent support a four-factor test for determining whether such restrictions comply with the First Amendment, namely a test that examines whether the speech restriction 1) leads to excessive false positives; 2) risks chilling other protected speech; 3) is justified by a legitimate government interest; and 4) may be successfully corrected in the marketplace of ideas. While all factors should be considered, for the speech restriction to pass constitutional muster, it must not chill other protected speech and must be justified by a legitimate government interest. In other words, factors two and three are necessary, while factors one and four are not.

This Comment shows that this test has substantial precedential support, but it also argues that the test has two additional advantages over the approaches taken by courts that have found the Stolen Valor Act constitutional: it neither constitutionally condones the criminalization of trivial lies nor paves the way for judicial invalidation of frequently litigated statutes restricting false factual statements, such as 18 USC § 1001, which makes it a crime to knowingly and willfully make false or fraudulent statement to the federal government.

This Comment applies this four-factor test to the Stolen Valor Act, finding that the Stolen Valor Act does not violate the First Amendment given the high verifiability of false claims about military honors, the fact that there is no significant risk of the SVA chilling speech that matters, and the existence of a legitimate government interest in preventing the misappropriation of its property, while considering the countervailing factor of the speech restricted by the SVA being correctable.

Keywords: First Amendment, Stolen Valor Act, False Speech, False Factual Speech, Alvarez, Ninth Circuit, Gertz, False Statements of Fact, Defamation