FINAL UPDATE: 12:29 p.m.

With the Supreme Court newly active in deciding pleas to put some forms of free speech outside of the protection of the First Amendment, the Justices on Monday took on another such issue: the power of Congress to ban mere false statements, in a test case on the constitutionality of the so-called Stolen Valor Act of 2005. That law makes it a federal crime to falsely claim that one has received a military medal or decoration; punishment is more severe for such claims when a major decoration like the Congressional Medal of Honor was involved.

The Court in the past two Terms had turned down attempts to put expressions of violence outside of the free speech clause’s protection. The new issue is whether a lie, without any other factor, can be banned without violating the First Amendment. The Court has made conflicting comments over the years on whether a false statement, by itself, lacks constitutional protection. Such differing remarks have come mainly in cases involving false statements that are challenged in libel or defamation lawsuits.

The federal government filed the new appeal (United States v. Alvarez, docket 11-210) to challenge a Ninth Circuit Court ruling striking down the Stolen Valor Act. Since 1948, there has been a federal law against false claims of being the winner of a military decoration. The new Act was passed in 2005, and took effect in 2006. Congress passed that version after finding that such fraudulent claims damage the reputation and meaning of such decorations. The law makes it a crime to falsely claim, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the military. It provides for a fine or prison up to six months, or both, for conviction. The prison term can be lengthened to a maximum of one year if the claim involves the Congressional Medal of Honor, the Navy Cross, the Air Force Cross, the Silver Star, a Purple Heart, or a Distinguished Service Cross.

The test case to be reviewed by the Justices involves the first individual prosecution for violating the Act. In July 2007, Xavier Alvarez of Pomona, Calif., was an elected member of the Three Valleys Water District, a water management agency of the state government operating in eastern Los Angeles County, with offices in Claremont. At a joint meeting of his agency with another water district board, Alvarez introduced himself as a retired Marine who had been wounded many times, and had won the Medal of Honor. None of those claims was true; in fact, Alvarez has never served in the U.S. military.

He was charged with two counts of violating the Act, and he failed in an effort to have the charges dismissed. He then pleaded guilty, but kept open the right to appeal to challenge the Act under the First Amendment. A panel of the Ninth Circuit, dividing 2-1, found the Act facially unconstitutional, concluding that it was not narrowly tailored to achieve its aim of protecting military medals. The Circuit Court denied en banc review, over seven judges’ dissent.

In taking the case on to the Supreme Court, the U.S. Solicitor General argued that the case involved an act of Congress “that plays a vital role in safeguarding the integrity and efficacy of the government’s military honors system.” The Ninth Circuit, it added, wrongly used the toughest constitutional standard — “strict scrutiny” — in judging the Act’s validity. Even though there is so far no split in the appeals court on the law’s validity, the government appeal said that the issue is now pending in four other Circuit Courts, and numerous tests of the law have been filed in federal courts.

The order granting review of the case was one of four by the Court on Monday. In one of the other cases, Elgin, et al., v. U.S. Treasury Department (11-45), the Court will be resolving a dispute among federal appeals courts on whether the federal civil service law bars any claims by federal employees of constitutional violations when they were fired from their government positions. The four former government workers involved in the case were fired from their jobs for failure to register for the military draft — a condition of federal employment. They contended that their firing was a form of unconstitutional punishment, and was a form of gender bias because the draft law only applies to males. (The grants in two other cases, involving liability of corporations and political organizations for human rights violations overseas, are discussed in a separate post on this blog.)

Among other significant actions on Monday, the Court declined to hear two new cases testing whether the federal government and the Oneida Indian tribes of New York State are barred from suing in federal court to get damages from the state for buying Indian lands cheap and selling them at higher prices, in the late 18th Century and first half of the 19th Century. The Second Circuit dismissed the claims on the theory that the government and the Oneidas waited too long to file suit. The denied petitions are U.S. v. New York, et al. (10-1404) and Oneida Indian Nation, et al., v. New York (10-1420). Two Justices — Ruth Bader Ginsburg and Sonia Sotomayor — noted that they would have granted review. However, it takes four votes to do so.

The Court also refused to hear a case testing whether U.S. government agency records that otherwise may be withheld from disclosure under the Freedom of Information Act must be released publicly if federal prosecutors have used them as evidence in open court in a criminal trial. The federal appeals courts are divided on the question. The issue was raised unsuccessfully in Prison Legal News v. Executive Office of U.S. Attorneys (10-1510), involving access to gruesome videotaped images and autopsy photos of a murder of an inmate by his cellmates at the “Supermax” federal prison in Florence, Colo. (Justice Elena Kagan took no part in this case.)

After issuing its orders, the Court recessed until its next private Conference on Oct. 28. The Court took no action Monday on several important pending cases, including the question of whether a life prison term without a chance of parole is unconstitutional for a minor who is convicted of murder. That issue is raised in Miller v. Alabama (11-9646) and Jackson v. Hobbs (10-9647), each involving a youth who was 14 years old at the time of the crimes involved. The Court also did not act on a major test of prosecutors’ use of race to try to persuade a jury in a murder case to impose a death sentence on a black man (Buck v. Thaler, 11-6391).

Recommended Citation: Lyle Denniston, Another test of First Amendment, SCOTUSblog (Oct. 17, 2011, 10:27 AM), https://www.scotusblog.com/2011/10/another-test-of-first-amendment/