The Stolen Valor Act has been declared unconstitutional by a 6-3 decision in the case U.S. vs. Alvarez. Alvarez was a phony whose tall tales made him a lot of money and helped him get elected to political office, and according to the Supreme Court, that’s all OK. This news will be buried under the Holder contempt vote, which will be buried under the Obamacare Supreme Court decision, so we’re putting it out there for you.
We feared that the law was overly broad and would go down on 1st Amendment grounds, and it did. The free speech objections to the law are aired by Chicago law professor Eugene Volokh here and here. But the problem may be greater than that.
Voting to preserve the law: Justices Alito, Scalia and Thomas. According to a very brief précis of the opinion at law-prof group blog The Volokh Conspiracy, four justices apparently ruled that military impersonation is absolutely protected free speech: Chief Justice Roberts, Justice Kennedy, who wrote the opinion, and Justices Ginsburg and Sotomayor. Their opinon seems to say that no law criminalizing impersonation like Alvarez’s could ever be legal, and that the right to be a military fraud and phony is as important and vital as, say, the right to choose one’s religion.
In other words, false speech has greater Constitutional heft than some true speech.
In a concurring opinion, Justices Breyer and Kagan wrote that the law was unconstitutional as written, but provided some suggestions for rewriting it to pass constitutional muster. But legislators now reckon with the tough fact that any rewrite not only must please these two liberals, it has to do it without losing the three conservatives who were ready to uphold the original act. And politicians must be keenly aware that the wannabes that this law threatened far outnumber the real SF, SEALs, Rangers and whatnot.
We may revise these opinions in a day or two after reading the actual opinion and some informed comment, which we hope to find at Volokh and other law-prof sites.
Somewhere, phony SF officer John Giduck is high-fiving someone, probably somebody associated with Russian intelligence.