United States v. Alvarez , 132 S. Ct. 2537 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. ALVAREZ
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 11–210. Argued February 22, 2012—Decided June 28, 2012
The Stolen Valor Act makes it a crime to falsely claim receipt of mili-
tary decorations or medals and provides an enhanced penalty if the
Congressional Medal of Honor is involved. 18 U.S. C. §§704 (b), (c).
Respondent pleaded guilty to a charge of falsely claiming that he had
received the Medal of Honor, but reserved his right to appeal his
claim that the Act is unconstitutional. The Ninth Circuit reversed,
finding the Act invalid under the First Amendment.
Held: The judgment is affirmed. Pp. 3−18.
617 F.3d 1198, affirmed.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE GINSBURG,
and JUSTICE SOTOMAYOR, concluded that the Act infringes upon
speech protected by the First Amendment. Pp. 3–18.
(a) The Constitution “demands that content-based restrictions on
speech be presumed invalid . . . and that the Government bear the
burden of showing their constitutionality.” Ashcroft v. American Civ-
il Liberties Union, 542 U.S. 656, 660.
Content-based restrictions on speech have been permitted only for
a few historic categories of speech, including incitement, obscenity,
defamation, speech integral to criminal conduct, so-called “fighting
words,” child pornography, fraud, true threats, and speech presenting
some grave and imminent threat the Government has the power to
prevent.
Absent from these few categories is any general exception for false
statements. The Government argues that cases such as Hustler
Magazine, Inc., v. Falwell, 485 U.S. 46, 52, support its claim that
false statements have no value and hence no First Amendment pro-
tection. But all the Government’s quotations derive from cases dis-
2 UNITED STATES v. ALVAREZ
Syllabus
cussing defamation, fraud, or some other legally cognizable harm as-
sociated with a false statement. In those decisions the falsity of the
speech at issue was not irrelevant to the Court’s analysis, but neither
was it determinative. These prior decisions have not confronted a
measure, like the Stolen Valor Act, that targets falsity and nothing
more.
Even when considering some instances of defamation or fraud, the
Court has instructed that falsity alone may not suffice to bring the
speech outside the First Amendment; the statement must be a know-
ing and reckless falsehood. See New York Times v. Sullivan, 376
U.S. 254, 280. Here, the Government seeks to convert a rule that
limits liability even in defamation cases where the law permits re-
covery for tortious wrongs into a rule that expands liability in a dif-
ferent, far greater realm of discourse and expression.
The Government’s three examples of false-speech regulation that
courts generally have found permissible do not establish a principle
that all proscriptions of false statements are exempt from rigorous
First Amendment scrutiny. The criminal prohibition of a false
statement made to Government officials in communications concern-
ing official matters, 18 U.S. C. §1001, does not lead to the broader
proposition that false statements are unprotected when made to any
person, at any time, in any context. As for perjury statutes, perjured
statements lack First Amendment protection not simply because they
are false, but because perjury undermines the function and province
of the law and threatens the integrity of judgments. Finally, there
are statutes that prohibit falsely representing that one is speaking on
behalf of the Government, or prohibit impersonating a Government
officer. These examples, to the extent that they implicate fraud or
speech integral to criminal conduct, are inapplicable here.
While there may exist “some categories of speech that have been
historically unprotected,” but that the Court has not yet specifically
identified or discussed, United States v. Stevens, 559 U.S. ___, ___,
the Government has not demonstrated that false statements should
constitute a new category. Pp. 3−10.
(b) The Act seeks to control and suppress all false statements on
this one subject in almost limitless times and settings without regard
to whether the lie was made for the purpose of material gain. Per-
mitting the Government to decree this speech to be a criminal offense
would endorse government authority to compile a list of subjects
about which false statements are punishable. That governmental
power has no clear limiting principle. Pp. 10−11.
(c) The Court applies the “most exacting scrutiny” in assessing con-
tent-based restrictions on protected speech. Turner Broadcasting
System Inc. v. FCC, 512 U.S. 622, 642. The Act does not satisfy that
Cite as: 567 U. S. ____ (2012) 3
Syllabus
scrutiny. While the Government’s interest in protecting the integrity
of the Medal of Honor is beyond question, the First Amendment re-
quires that there be a direct causal link between the restriction im-
posed and the injury to be prevented. Here, that link has not been
shown. The Government points to no evidence supporting its claim
that the public’s general perception of military awards is diluted by
false claims such as those made by respondent. And it has not
shown, and cannot show, why counterspeech, such as the ridicule re-
spondent received online and in the press, would not suffice to
achieve its interest.
In addition, when the Government seeks to regulate protected
speech, the restriction must be the “least restrictive means among
available, effective alternatives.” Ashcroft, 542 U. S., at 666. Here,
the Government could likely protect the integrity of the military
awards system by creating a database of Medal winners accessible
and searchable on the Internet, as some private individuals have al-
ready done. Pp. 12−18.
JUSTICE BREYER, joined by JUSTICE KAGAN, concluded that because
the Stolen Valor Act, as presently drafted, works disproportionate
constitutional harm, it fails intermediate scrutiny, and thus violates
the First Amendment. Pp. 1−10.
(a) In determining whether a statute violates the First Amend-
ment, the Court has often found it appropriate to examine the fit be-
tween statutory ends and means, taking into account the seriousness
of the speech-related harm the provision will likely cause, the nature
and importance of the provision’s countervailing objectives, the ex-
tent to which the statute will tend to achieve those objectives, and
whether there are other, less restrictive alternatives. “Intermediate
scrutiny” describes this approach. Since false factual statements are
less likely than true factual statements to make a valuable contribu-
tion to the marketplace of ideas, and the government often has good
reason to prohibit such false speech, but its regulation can threaten
speech-related harm, such an approach is applied here. Pp. 1−3.
(b) The Act should be read as criminalizing only false factual
statements made with knowledge of their falsity and with intent that
they be taken as true. Although the Court has frequently said or im-
plied that false factual statements enjoy little First Amendment pro-
tection, see, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, those
statements cannot be read to mean “no protection at all.” False fac-
tual statements serve useful human objectives in many contexts.
Moreover, the threat of criminal prosecution for making a false
statement can inhibit the speaker from making true statements,
thereby “chilling” a kind of speech that lies at the First Amendment’s
heart. See id., at 340−341. And the pervasiveness of false factual
4 UNITED STATES v. ALVAREZ
Syllabus
statements provides a weapon to a government broadly empowered to
prosecute falsity without more. Those who are unpopular may fear
that the government will use that weapon selectively against them.
Although there are many statutes and common-law doctrines mak-
ing the utterance of certain kinds of false statements unlawful, they
tend to be narrower than the Act, in that they limit the scope of their
application in various ways, for example, by requiring proof of specif-
ic harm to identifiable victims. The Act lacks any such limiting fea-
tures. Although it prohibits only knowing and intentional falsehoods
about readily verifiable facts within the personal knowledge of the
speaker, it otherwise ranges broadly, and that breadth means that it
creates a significant risk of First Amendment harm. Pp. 3−8.
(c) The Act nonetheless has substantial justification. It seeks to
protect the interests of those who have sacrificed their health and life
for their country by seeking to preserve intact the country’s recogni-
tion of that sacrifice in the form of military honors. P. 8.
(d) It may, however, be possible substantially to achieve the Gov-
ernment’s objective in less burdensome ways. The First Amendment
risks flowing from the Act’s breadth of coverage could be diminished
or eliminated by a more finely tailored statute, for example, a statute
that requires a showing that the false statement caused specific harm
or is focused on lies more likely to be harmful or on contexts where
such lies are likely to cause harm. Pp. 8−10.
KENNEDY, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and GINSBURG and SOTOMAYOR, JJ.,
joined. BREYER, J., filed an opinion concurring in the judgment, in
which KAGAN, J., joined. ALITO, J., filed a dissenting opinion, in which
SCALIA and THOMAS, JJ., joined.
Cite as: 567 U. S. ____ (2012) 1
Opinion of KENNEDY, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–210
_________________
UNITED STATES, PETITIONER v. XAVIER ALVAREZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 28, 2012]
JUSTICE KENNEDY announced the judgment of the
Court and delivered an opinion, in which THE CHIEF
JUSTICE, JUSTICE GINSBURG, and JUSTICE SOTOMAYOR
join.
Lying was his habit. Xavier Alvarez, the respondent
here, lied when he said that he played hockey for the
Detroit Red Wings and that he once married a starlet from
Mexico. But when he lied in announcing he held the Con-
gressional Medal of Honor, respondent ventured onto new
ground; for that lie violates a federal criminal statute, the
Stolen Valor Act of 2005. 18 U.S. C. §704.
In 2007, respondent attended his first public meeting as
a board member of the Three Valley Water District Board.
The board is a governmental entity with headquarters in
Claremont, California. He introduced himself as follows:
“I’m a retired marine of 25 years. I retired in the year 2001.
Back in 1987, I was awarded the Congressional Medal of
Honor. I got wounded many times by the same guy.” 617
F.3d 1198, 1201–1202 (CA9 2010). None of this was true.
For all the record shows, respondent’s statements were
but a pathetic attempt to gain respect that eluded him.
The statements do not seem to have been made to secure
2 UNITED STATES v. ALVAREZ
Opinion of KENNEDY, J.
employment or financial benefits or admission to privileges
reserved for those who had earned the Medal.
Respondent was indicted under the Stolen Valor Act
for lying about the Congressional Medal of Honor at the
meeting. The United States District Court for the Central
District of California rejected his claim that the statute is
invalid under the First Amendment. Respondent pleaded
guilty to one count, reserving the right to appeal on his
First Amendment claim. The United States Court of
Appeals for the Ninth Circuit, in a decision by a divided
panel, found the Act invalid under the First Amendment
and reversed the conviction. Id., at 1218. With further
opinions on the issue, and over a dissent by seven judges,
rehearing en banc was denied. 638 F.3d 666 (2011). This
Court granted certiorari. 565 U. S. ___ (2011).
After certiorari was granted, and in an unrelated case,
the United States Court of Appeals for the Tenth Circuit,
also in a decision by a divided panel, found the Act consti-
tutional. United States v. Strandlof, 667 F.3d 1146(2012). So there is now a conflict in the Courts of Appeals
on the question of the Act’s validity.
This is the second case in two Terms requiring the Court
to consider speech that can disparage, or attempt to steal,
honor that belongs to those who fought for this Nation in
battle. See Snyder v. Phelps, 562 U. S. ___ (2011) (hateful
protests directed at the funeral of a serviceman who died
in Iraq). Here the statement that the speaker held the
Medal was an intended, undoubted lie.
It is right and proper that Congress, over a century ago,
established an award so the Nation can hold in its high-
est respect and esteem those who, in the course of carrying
out the “supreme and noble duty of contributing to the
defense of the rights and honor of the nation,” Selective
Draft Law Cases, 245 U.S. 366, 390 (1918), have acted
with extraordinary honor. And it should be uncontested
that this is a legitimate Government objective, indeed a
Cite as: 567 U. S. ____ (2012) 3
Opinion of KENNEDY, J.
most valued national aspiration and purpose. This does
not end the inquiry, however. Fundamental constitutional
principles require that laws enacted to honor the brave
must be consistent with the precepts of the Constitution
for which they fought.
The Government contends the criminal prohibition is
a proper means to further its purpose in creating and
awarding the Medal. When content-based speech regula-
tion is in question, however, exacting scrutiny is required.
Statutes suppressing or restricting speech must be judged
by the sometimes inconvenient principles of the First
Amendment. By this measure, the statutory provisions
under which respondent was convicted must be held inva-
lid, and his conviction must be set aside.
I
Respondent’s claim to hold the Congressional Medal of
Honor was false. There is no room to argue about in-
terpretation or shades of meaning. On this premise, re-
spondent violated §704(b); and, because the lie concerned
the Congressional Medal of Honor, he was subject to an
enhanced penalty under subsection (c). Those statutory
provisions are as follows:
“(b) FALSE CLAIMS ABOUT RECEIPT OF MILITARY
DECORATIONS OR MEDALS.––Whoever falsely repre-
sents himself or herself, verbally or in writing, to have
been awarded any decoration or medal authorized by
Congress for the Armed Forces of the United States
. . . shall be fined under this title, imprisoned not
more than six months, or both.
“(c) ENHANCED PENALTY FOR OFFENSES INVOLVING
CONGRESSIONAL MEDAL OF HONOR.––
“(1) IN GENERAL.––If a decoration or medal involved
in an offense under subsection (a) or (b) is a Congres-
sional Medal of Honor, in lieu of the punishment provided
in that subsection, the offender shall be fined under
4 UNITED STATES v. ALVAREZ
Opinion of KENNEDY, J.
this title, imprisoned not more than 1 year, or both.”
Respondent challenges the statute as a content-based
suppression of pure speech, speech not falling within any
of the few categories of expression where content-based
regulation is permissible. The Government defends the
statute as necessary to preserve the integrity and purpose
of the Medal, an integrity and purpose it contends are
compromised and frustrated by the false statements the
statute prohibits. It argues that false statements “have
no First Amendment value in themselves,” and thus “are
protected only to the extent needed to avoid chilling fully
protected speech.” Brief for United States 18, 20. Al-
though the statute covers respondent’s speech, the Gov-
ernment argues that it leaves breathing room for pro-
tected speech, for example speech which might criticize
the idea of the Medal or the importance of the military.
The Government’s arguments cannot suffice to save the
statute.
II
“[A]s a general matter, the First Amendment means
that government has no power to restrict expression be-
cause of its message, its ideas, its subject matter, or its
content.” Ashcroft v. American Civil Liberties Union, 535
U.S. 564, 573 (2002) (internal quotation marks omitted).
As a result, the Constitution “demands that content-based
restrictions on speech be presumed invalid . . . and that
the Government bear the burden of showing their consti-
tutionality.” Ashcroft v. American Civil Liberties Union,
542 U.S. 656, 660 (2004).
In light of the substantial and expansive threats to free
expression posed by content-based restrictions, this Court
has rejected as “startling and dangerous” a “free-floating
test for First Amendment coverage . . . [based on] an
ad hoc balancing of relative social costs and benefits.”
United States v. Stevens, 559 U.S. ___, ___ (2010) (slip op.,
Cite as: 567 U. S. ____ (2012) 5
Opinion of KENNEDY, J.
at 7). Instead, content-based restrictions on speech have
been permitted, as a general matter, only when confined
to the few “ ‘historic and traditional categories [of expres-
sion] long familiar to the bar,’ ” Id., at ___ (slip op., at 5)
(quoting Simon & Schuster, Inc. v. Members of N. Y. State
Crime Victims Bd., 502 U.S. 105, 127 (1991) (KENNEDY,
J., concurring in judgment)). Among these categories are
advocacy intended, and likely, to incite imminent lawless
action, see Brandenburg v. Ohio, 395 U.S. 444 (1969)
(per curiam); obscenity, see, e.g., Miller v. California, 413
U.S. 15 (1973); defamation, see, e.g., New York Times Co.
v. Sullivan, 376 U.S. 254 (1964) (providing substantial
protection for speech about public figures); Gertz v. Robert
Welch, Inc., 418 U.S. 323 (1974) (imposing some limits on
liability for defaming a private figure); speech integral to
criminal conduct, see, e.g., Giboney v. Empire Storage &
Ice Co., 336 U.S. 490 (1949); so-called “fighting words,”
see Chaplinsky v. New Hampshire, 315 U.S. 568 (1942);
child pornography, see New York v. Ferber, 458 U.S. 747(1982); fraud, see Virginia Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976);
true threats, see Watts v. United States, 394 U.S. 705(1969) (per curiam); and speech presenting some grave
and imminent threat the government has the power to
prevent, see Near v. Minnesota ex rel. Olson, 283 U.S.
697, 716 (1931), although a restriction under the last
category is most difficult to sustain, see New York Times
Co. v. United States, 403 U.S. 713 (1971) (per curiam).
These categories have a historical foundation in the
Court’s free speech tradition. The vast realm of free
speech and thought always protected in our tradition can
still thrive, and even be furthered, by adherence to those
categories and rules.
Absent from those few categories where the law allows
content-based regulation of speech is any general excep-
tion to the First Amendment for false statements. This
6 UNITED STATES v. ALVAREZ
Opinion of KENNEDY, J.
comports with the common understanding that some false
statements are inevitable if there is to be an open and
vigorous expression of views in public and private con-
versation, expression the First Amendment seeks to guar-
antee. See Sullivan, supra, at 271 (“Th[e] erroneous
statement is inevitable in free debate”).
The Government disagrees with this proposition. It
cites language from some of this Court’s precedents to
support its contention that false statements have no value
and hence no First Amendment protection. See also Brief
for Eugene Volokh et al. as Amici Curiae 2–11. These
isolated statements in some earlier decisions do not sup-
port the Government’s submission that false statements,
as a general rule, are beyond constitutional protection.
That conclusion would take the quoted language far from
its proper context. For instance, the Court has stated
“[f]alse statements of fact are particularly valueless [be-
cause] they interfere with the truth-seeking function of
the marketplace of ideas,” Hustler Magazine, Inc. v. Fal-
well, 485 U.S. 46, 52 (1988), and that false statements
“are not protected by the First Amendment in the same
manner as truthful statements,” Brown v. Hartlage, 456
U.S. 45, 60–61 (1982). See also, e.g., Virginia Bd. of
Pharmacy, supra, at 771 (“Untruthful speech, commercial
or otherwise, has never been protected for its own sake”);
Herbert v. Lando, 441 U.S. 153, 171 (1979) (“Spreading
false information in and of itself carries no First Amend-
ment credentials”); Gertz, supra, at 340 (“[T]here is no
constitutional value in false statements of fact”); Garrison
v. Louisiana, 379 U.S. 64, 75 (1964) (“[T]he knowingly
false statement and the false statement made with reck-
less disregard of the truth, do not enjoy constitutional
protection”).
These quotations all derive from cases discussing def-
amation, fraud, or some other legally cognizable harm
associated with a false statement, such as an invasion of
Cite as: 567 U. S. ____ (2012) 7
Opinion of KENNEDY, J.
privacy or the costs of vexatious litigation. See Brief for
United States 18–19. In those decisions the falsity of
the speech at issue was not irrelevant to our analysis, but
neither was it determinative. The Court has never en-
dorsed the categorical rule the Government advances: that
false statements receive no First Amendment protection.
Our prior decisions have not confronted a measure, like
the Stolen Valor Act, that targets falsity and nothing
more.
Even when considering some instances of defamation
and fraud, moreover, the Court has been careful to in-
struct that falsity alone may not suffice to bring the
speech outside the First Amendment. The statement must
be a knowing or reckless falsehood. See Sullivan, supra,
at 280 (prohibiting recovery of damages for a defamatory
falsehood made about a public official unless the state-
ment was made “with knowledge that it was false or with
reckless disregard of whether it was false or not”); see
also Garrison, supra, at 73 (“[E]ven when the utterance is
false, the great principles of the Constitution which secure
freedom of expression . . . preclude attaching adverse
consequences to any except the knowing or reckless false-
hood”); Illinois ex rel. Madigan v. Telemarketing Associ-
ates, Inc., 538 U.S. 600, 620 (2003) (“False statement
alone does not subject a fundraiser to fraud liability”).
The Government thus seeks to use this principle for a
new purpose. It seeks to convert a rule that limits liability
even in defamation cases where the law permits recovery
for tortious wrongs into a rule that expands liability in a
different, far greater realm of discourse and expression.
That inverts the rationale for the exception. The require-
ments of a knowing falsehood or reckless disregard for the
truth as the condition for recovery in certain defamation
cases exists to allow more speech, not less. A rule de-
signed to tolerate certain speech ought not blossom to
become a rationale for a rule restricting it.
8 UNITED STATES v. ALVAREZ
Opinion of KENNEDY, J.
The Government then gives three examples of regula-
tions on false speech that courts generally have found per-
missible: first, the criminal prohibition of a false state-
ment made to a Government official, 18 U.S. C. §1001;
second, laws punishing perjury; and third, prohibi-
tions on the false representation that one is speaking as a
Government official or on behalf of the Government, see,
e.g., §912; §709. These restrictions, however, do not estab-
lish a principle that all proscriptions of false statements
are exempt from exacting First Amendment scrutiny.
The federal statute prohibiting false statements to
Government officials punishes “whoever, in any matter
within the jurisdiction of the executive, legislative, or
judicial branch of the Government . . . makes any mate-
rially false, fictitious, or fraudulent statement or repre-
sentation.” §1001. Section 1001’s prohibition on false
statements made to Government officials, in communica-
tions concerning official matters, does not lead to the broader
proposition that false statements are unprotected when
made to any person, at any time, in any context.
The same point can be made about what the Court has
confirmed is the “unquestioned constitutionality of perjury
statutes,” both the federal statute, §1623, and its state-law
equivalents. United States v. Grayson, 438 U.S. 41, 54
(1978). See also Konigsberg v. State Bar of Cal., 366 U.S.
36, 51, n. 10 (1961). It is not simply because perjured
statements are false that they lack First Amendment
protection. Perjured testimony “is at war with justice”
because it can cause a court to render a “judgment not
resting on truth.” In re Michael, 326 U.S. 224, 227 (1945).
Perjury undermines the function and province of the law
and threatens the integrity of judgments that are the
basis of the legal system. See United States v. Dunnigan,
507 U.S. 87, 97 (1993) (“To uphold the integrity of our
trial system . . . the constitutionality of perjury statutes is
unquestioned”). Unlike speech in other contexts, testi-
Cite as: 567 U. S. ____ (2012) 9
Opinion of KENNEDY, J.
mony under oath has the formality and gravity necessary to
remind the witness that his or her statements will be the
basis for official governmental action, action that often
affects the rights and liberties of others. Sworn testimony
is quite distinct from lies not spoken under oath and sim-
ply intended to puff up oneself.
Statutes that prohibit falsely representing that one is
speaking on behalf of the Government, or that prohibit im-
personating a Government officer, also protect the in-
tegrity of Government processes, quite apart from merely
restricting false speech. Title 18 U.S. C. §912, for ex-
ample, prohibits impersonating an officer or employee of
the United States. Even if that statute may not require
proving an “actual financial or property loss” resulting
from the deception, the statute is itself confined to “main-
tain[ing] the general good repute and dignity of . . . gov-
ernment . . . service itself.” United States v. Lepowitch,
318 U.S. 702, 704 (1943) (internal quotation marks omit-
ted). The same can be said for prohibitions on the unau-
thorized use of the names of federal agencies such as the
Federal Bureau of Investigation in a manner calculated to
convey that the communication is approved, see §709, or
using words such as “Federal” or “United States” in the
collection of private debts in order to convey that the
communication has official authorization, see §712. These
examples, to the extent that they implicate fraud or
speech integral to criminal conduct, are inapplicable here.
As our law and tradition show, then, there are instances
in which the falsity of speech bears upon whether it is
protected. Some false speech may be prohibited even if
analogous true speech could not be. This opinion does not
imply that any of these targeted prohibitions are somehow
vulnerable. But it also rejects the notion that false speech
should be in a general category that is presumptively
unprotected.
Although the First Amendment stands against any
10 UNITED STATES v. ALVAREZ
Opinion of KENNEDY, J.
“freewheeling authority to declare new categories of
speech outside the scope of the First Amendment,” Ste-
vens, 559 U. S., at ___ (slip op., at 9), the Court has
acknowledged that perhaps there exist “some categories of
speech that have been historically unprotected . . . but
have not yet been specifically identified or discussed . . . in
our case law.” Ibid. Before exempting a category of
speech from the normal prohibition on content-based re-
strictions, however, the Court must be presented with “per-
suasive evidence that a novel restriction on content is
part of a long (if heretofore unrecognized) tradition of
proscription,” Brown v. Entertainment Merchants Assn.,
564 U.S. ___, ___ (2011) (slip op., at 4). The Government
has not demonstrated that false statements generally
should constitute a new category of unprotected speech on
this basis.
III
The probable, and adverse, effect of the Act on free-
dom of expression illustrates, in a fundamental way, the
reasons for the Law’s distrust of content-based speech
prohibitions.
The Act by its plain terms applies to a false statement
made at any time, in any place, to any person. It can be
assumed that it would not apply to, say, a theatrical per-
formance. See Milkovich v. Lorain Journal Co., 497 U.S.
1, 20 (1990) (recognizing that some statements nominally
purporting to contain false facts in reality “cannot reason-
ably be interpreted as stating actual facts about an indi-
vidual” (internal quotation marks and brackets omitted)).
Still, the sweeping, quite unprecedented reach of the
statute puts it in conflict with the First Amendment. Here
the lie was made in a public meeting, but the statute
would apply with equal force to personal, whispered con-
versations within a home. The statute seeks to control
and suppress all false statements on this one subject in
Cite as: 567 U. S. ____ (2012) 11
Opinion of KENNEDY, J.
almost limitless times and settings. And it does so en-
tirely without regard to whether the lie was made for the
purpose of material gain. See San Francisco Arts & Ath-
letics, Inc. v. United States Olympic Comm., 483 U.S. 522,
539–540 (1987) (prohibiting a nonprofit corporation from
exploiting the “commercial magnetism” of the word “Olym-
pic” when organizing an athletic competition (internal
quotation marks omitted)).
Permitting the government to decree this speech to be
a criminal offense, whether shouted from the rooftops or
made in a barely audible whisper, would endorse govern-
ment authority to compile a list of subjects about which
false statements are punishable. That governmental
power has no clear limiting principle. Our constitutional
tradition stands against the idea that we need Oceania’s
Ministry of Truth. See G. Orwell, Nineteen Eighty-Four
(1949) (Centennial ed. 2003). Were this law to be sus-
tained, there could be an endless list of subjects the Na-
tional Government or the States could single out. Where
false claims are made to effect a fraud or secure moneys
or other valuable considerations, say offers of employment,
it is well established that the Government may restrict
speech without affronting the First Amendment. See, e.g.,
Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that
fraudulent speech generally falls outside the protections of
the First Amendment). But the Stolen Valor Act is not so
limited in its reach. Were the Court to hold that the in-
terest in truthful discourse alone is sufficient to sustain a
ban on speech, absent any evidence that the speech was
used to gain a material advantage, it would give govern-
ment a broad censorial power unprecedented in this
Court’s cases or in our constitutional tradition. The mere
potential for the exercise of that power casts a chill, a chill
the First Amendment cannot permit if free speech,
thought, and discourse are to remain a foundation of our
freedom.
12 UNITED STATES v. ALVAREZ
Opinion of KENNEDY, J.
IV
The previous discussion suffices to show that the Act
conflicts with free speech principles. But even when ex-
amined within its own narrow sphere of operation, the Act
cannot survive. In assessing content-based restrictions
on protected speech, the Court has not adopted a free-
wheeling approach, see Stevens, 559 U. S., at ___ (slip op.,
at 7) (“The First Amendment’s guarantee of free speech
does not extend only to categories of speech that survive
an ad hoc balancing of relative social costs and benefits”),
but rather has applied the “most exacting scrutiny.”
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622,
642 (1994). Although the objectives the Government seeks
to further by the statute are not without significance, the
Court must, and now does, find the Act does not satisfy
exacting scrutiny.
The Government is correct when it states military med-
als “serve the important public function of recognizing and
expressing gratitude for acts of heroism and sacrifice in
military service,” and also “ ‘foste[r] morale, mission ac-
complishment and esprit de corps’ among service mem-
bers.” Brief for United States 37, 38. General George
Washington observed that an award for valor would “cher-
ish a virtuous ambition in . . . soldiers, as well as foster
and encourage every species of military merit.” General
Orders of George Washington Issued at Newburgh on the
Hudson, 1782–1783 (Aug. 7, 1782), p. 30 (E. Boynton ed.
1883). Time has not diminished this idea. In periods of
war and peace alike public recognition of valor and noble
sacrifice by men and women in uniform reinforces the
pride and national resolve that the military relies upon to
fulfill its mission.
These interests are related to the integrity of the mili-
tary honors system in general, and the Congressional
Medal of Honor in particular. Although millions have
served with brave resolve, the Medal, which is the highest
Cite as: 567 U. S. ____ (2012) 13
Opinion of KENNEDY, J.
military award for valor against an enemy force, has been
given just 3,476 times. Established in 1861, the Medal
is reserved for those who have distinguished themselves
“conspicuously by gallantry and intrepidity at the risk of
his life above and beyond the call of duty.” 10 U.S. C.
§§3741 (Army), 6241 (Navy and Marine Corps), 8741 (Air
Force), 14 U.S. C. §491 (Coast Guard). The stories of
those who earned the Medal inspire and fascinate, from
Dakota Meyer who in 2009 drove five times into the midst
of a Taliban ambush to save 36 lives, see Curtis, President
Obama Awards Medal of Honor to Dakota Meyer, The
White House Blog (Sept. 15, 2011) (all Internet materials
as visited June 25, 2012, and available in Clerk of Court’s
case file); to Desmond Doss who served as an army medic
on Okinawa and on June 5, 1945, rescued 75 fellow sol-
diers, and who, after being wounded, gave up his own
place on a stretcher so others could be taken to safety, see
America’s Heroes 88–90 (J. Willbanks ed. 2011); to Wil-
liam Carney who sustained multiple gunshot wounds to
the head, chest, legs, and arm, and yet carried the flag
to ensure it did not touch the ground during the Union
army’s assault on Fort Wagner in July 1863, id., at 44–45.
The rare acts of courage the Medal celebrates led Presi-
dent Truman to say he would “rather have that medal
round my neck than . . . be president of the United States.”
Truman Gives No. 1 Army Medal to 15 Heroes, Washing-
ton Post, Oct. 13, 1945, p. 5. The Government’s interest in
protecting the integrity of the Medal of Honor is beyond
question.
But to recite the Government’s compelling interests is
not to end the matter. The First Amendment requires
that the Government’s chosen restriction on the speech
at issue be “actually necessary” to achieve its interest. En-
tertainment Merchants Assn., 564 U. S., at ___ (slip op., at
12). There must be a direct causal link between the re-
striction imposed and the injury to be prevented. See ibid.
14 UNITED STATES v. ALVAREZ
Opinion of KENNEDY, J.
The link between the Government’s interest in protecting
the integrity of the military honors system and the Act’s
restriction on the false claims of liars like respondent has
not been shown. Although appearing to concede that “an
isolated misrepresentation by itself would not tarnish the
meaning of military honors,” the Government asserts it is
“common sense that false representations have the ten-
dency to dilute the value and meaning of military awards,”
Brief for United States 49, 54. It must be acknowledged
that when a pretender claims the Medal to be his own, the
lie might harm the Government by demeaning the high
purpose of the award, diminishing the honor it confirms,
and creating the appearance that the Medal is awarded
more often than is true. Furthermore, the lie may offend
the true holders of the Medal. From one perspective it in-
sults their bravery and high principles when falsehood
puts them in the unworthy company of a pretender.
Yet these interests do not satisfy the Government’s
heavy burden when it seeks to regulate protected speech.
See United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803, 818 (2000). The Government points to no
evidence to support its claim that the public’s general
perception of military awards is diluted by false claims
such as those made by Alvarez. Cf. Entertainment Mer-
chants Assn., supra, at ___–___ (slip op., at 12–13) (analyz-
ing and rejecting the findings of research psychologists
demonstrating the causal link between violent video
games and harmful effects on children). As one of the
Government’s amici notes “there is nothing that charla-
tans such as Xavier Alvarez can do to stain [the Medal
winners’] honor.” Brief for Veterans of Foreign Wars of
the United States et al. as Amici Curiae 1. This general
proposition is sound, even if true holders of the Medal
might experience anger and frustration.
The lack of a causal link between the Government’s
stated interest and the Act is not the only way in which
Cite as: 567 U. S. ____ (2012) 15
Opinion of KENNEDY, J.
the Act is not actually necessary to achieve the Govern-
ment’s stated interest. The Government has not shown,
and cannot show, why counterspeech would not suffice to
achieve its interest. The facts of this case indicate that
the dynamics of free speech, of counterspeech, of refuta-
tion, can overcome the lie. Respondent lied at a public
meeting. Even before the FBI began investigating him for
his false statements “Alvarez was perceived as a phony,”
617 F. 3d, at 1211. Once the lie was made public, he was
ridiculed online, see Brief for Respondent 3, his actions
were reported in the press, see Ortega, Alvarez Again
Denies Claim, Ontario, CA, Inland Valley Daily Bulletin
(Sept. 27, 2007), and a fellow board member called for his
resignation, see, e.g., Bigham, Water District Rep Re-
quests Alvarez Resign in Wake of False Medal Claim,
San Bernardino Cty., CA, The Sun (May 21, 2008). There
is good reason to believe that a similar fate would befall
other false claimants. See Brief for Reporters Committee
for Freedom of the Press et al. as Amici Curiae 30–33
(listing numerous examples of public exposure of false
claimants). Indeed, the outrage and contempt expressed
for respondent’s lies can serve to reawaken and reinforce
the public’s respect for the Medal, its recipients, and its
high purpose. The acclaim that recipients of the Congres-
sional Medal of Honor receive also casts doubt on the
proposition that the public will be misled by the claims of
charlatans or become cynical of those whose heroic deeds
earned them the Medal by right. See, e.g., Well Done,
Washington Post, Feb. 5, 1943, p. 8 (reporting on Pres-
ident Roosevelt’s awarding the Congressional Medal of
Honor to Maj. Gen. Alexander Vandegrift); Devroy, Medal
of Honor Given to 2 Killed in Somalia, Washington Post,
May 24, 1994, p. A6 (reporting on President Clinton’s
awarding the Congressional Medal of Honor to two special
forces soldiers killed during operations in Somalia).
The remedy for speech that is false is speech that is
true. This is the ordinary course in a free society. The
16 UNITED STATES v. ALVAREZ
Opinion of KENNEDY, J.
response to the unreasoned is the rational; to the unin-
formed, the enlightened; to the straight-out lie, the simple
truth. See Whitney v. California, 274 U.S. 357, 377 (1927)
(Brandeis, J., concurring) (“If there be time to expose
through discussion the falsehood and fallacies, to avert
the evil by the processes of education, the remedy to be ap-
plied is more speech, not enforced silence”). The theory of
our Constitution is “that the best test of truth is the power
of the thought to get itself accepted in the competition of
the market,” Abrams v. United States, 250 U.S. 616, 630
(1919) (Holmes, J., dissenting). The First Amendment
itself ensures the right to respond to speech we do not like,
and for good reason. Freedom of speech and thought flows
not from the beneficence of the state but from the inalien-
able rights of the person. And suppression of speech by
the government can make exposure of falsity more diffi-
cult, not less so. Society has the right and civic duty to
engage in open, dynamic, rational discourse. These ends
are not well served when the government seeks to orches-
trate public discussion through content-based mandates.
Expressing its concern that counterspeech is insuf-
ficient, the Government responds that because “some
military records have been lost . . . some claims [are] un-
verifiable,” Brief for United States 50. This proves little,
however; for without verifiable records, successful crimi-
nal prosecution under the Act would be more difficult in
any event. So, in cases where public refutation will not
serve the Government’s interest, the Act will not either.
In addition, the Government claims that “many [false
claims] will remain unchallenged.” Id., at 55. The Gov-
ernment provides no support for the contention. And in
any event, in order to show that public refutation is not an
adequate alternative, the Government must demonstrate
that unchallenged claims undermine the public’s percep-
tion of the military and the integrity of its awards system.
This showing has not been made.
Cite as: 567 U. S. ____ (2012) 17
Opinion of KENNEDY, J.
It is a fair assumption that any true holders of the
Medal who had heard of Alvarez’s false claims would have
been fully vindicated by the community’s expression of
outrage, showing as it did the Nation’s high regard for the
Medal. The same can be said for the Government’s inter-
est. The American people do not need the assistance of a
government prosecution to express their high regard for
the special place that military heroes hold in our tradi-
tion. Only a weak society needs government protection or
intervention before it pursues its resolve to preserve the
truth. Truth needs neither handcuffs nor a badge for its
vindication.
In addition, when the Government seeks to regulate
protected speech, the restriction must be the “least restric-
tive means among available, effective alternatives.” Ash-
croft, 542 U. S., at 666. There is, however, at least one
less speech-restrictive means by which the Government
could likely protect the integrity of the military awards
system. A Government-created database could list Con-
gressional Medal of Honor winners. Were a database
accessible through the Internet, it would be easy to verify
and expose false claims. It appears some private individ-
uals have already created databases similar to this,
see Brief for Respondent 25, and at least one data-
base of past winners is online and fully searchable, see
Congressional Medal of Honor Society, Full Archive,
http://www.cmohs.org/recipient-archive.php. The Solicitor
General responds that although Congress and the De-
partment of Defense investigated the feasibility of estab-
lishing a database in 2008, the Government “concluded
that such a database would be impracticable and insuf-
ficiently comprehensive.” Brief for United States 55.
Without more explanation, it is difficult to assess the Gov-
ernment’s claim, especially when at least one database of
Congressional Medal of Honor winners already exists.
The Government may have responses to some of these
criticisms, but there has been no clear showing of the
18 UNITED STATES v. ALVAREZ
Opinion of KENNEDY, J.
necessity of the statute, the necessity required by exacting
scrutiny.
* * *
The Nation well knows that one of the costs of the First
Amendment is that it protects the speech we detest as well
as the speech we embrace. Though few might find re-
spondent’s statements anything but contemptible, his
right to make those statements is protected by the Consti-
tution’s guarantee of freedom of speech and expression.
The Stolen Valor Act infringes upon speech protected by
the First Amendment.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 567 U. S. ____ (2012) 1
BREYER, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–210
_________________
UNITED STATES, PETITIONER v. XAVIER ALVAREZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 28, 2012]
JUSTICE BREYER, with whom JUSTICE KAGAN joins, con-
curring in the judgment.
I agree with the plurality that the Stolen Valor Act of
2005 violates the First Amendment. But I do not rest my
conclusion upon a strict categorical analysis. Ante, at 4–
10. Rather, I base that conclusion upon the fact that the
statute works First Amendment harm, while the Govern-
ment can achieve its legitimate objectives in less restric-
tive ways.
I
In determining whether a statute violates the First
Amendment, this Court has often found it appropriate to
examine the fit between statutory ends and means. In
doing so, it has examined speech-related harms, justifica-
tions, and potential alternatives. In particular, it has
taken account of the seriousness of the speech-related
harm the provision will likely cause, the nature and im-
portance of the provision’s countervailing objectives, the
extent to which the provision will tend to achieve those
objectives, and whether there are other, less restrictive
ways of doing so. Ultimately the Court has had to deter-
mine whether the statute works speech-related harm that
is out of proportion to its justifications.
Sometimes the Court has referred to this approach as
“intermediate scrutiny,” sometimes as “proportionality”
2 UNITED STATES v. ALVAREZ
BREYER, J., concurring in judgment
review, sometimes as an examination of “fit,” and some-
times it has avoided the application of any label at all.
See, e.g., Turner Broadcasting System, Inc. v. FCC, 512
U.S. 622, 641–652 (1994) (intermediate scrutiny); Randall
v. Sorrell, 548 U.S. 230, 249 (2006) (plurality opinion)
(proportionality); Board of Trustees of State Univ. of N. Y.
v. Fox, 492 U.S. 469, 480 (1989) (requiring a “fit” be-
tween means and ends that is “ ‘in proportion to the in-
terest served’ ”); In re R. M. J., 455 U.S. 191, 203 (1982)
(“[I]nterference with speech must be in proportion to the
[substantial governmental] interest served”); Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U.S. 563, 568 (1968).
Regardless of the label, some such approach is necessary
if the First Amendment is to offer proper protection in
the many instances in which a statute adversely affects
constitutionally protected interests but warrants neither
near-automatic condemnation (as “strict scrutiny” implies)
nor near-automatic approval (as is implicit in “rational
basis” review). See, e.g., Turner Broadcasting System,
Inc., supra, at 641–652 (“must-carry” cable regulations);
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n
of N. Y., 447 U.S. 557, 566 (1980) (nonmisleading com-
mercial speech); Burdick v. Takushi, 504 U.S. 428, 433–
434 (1992) (election regulation); Pickering, supra, at 568
(government employee speech); United States v. O’Brien,
391 U.S. 367, 377 (1968) (application of generally appli-
cable laws to expressive conduct). I have used the term
“proportionality” to describe this approach. Thompson v.
Western States Medical Center, 535 U.S. 357, 388 (2002)
(dissenting opinion); see also Bartnicki v. Vopper, 532
U.S. 514, 536 (2001) (concurring opinion); Nixon v. Shrink
Missouri Government PAC, 528 U.S. 377, 402–403 (2000)
(concurring opinion). But in this case, the Court’s term
“intermediate scrutiny” describes what I think we should
do.
Cite as: 567 U. S. ____ (2012) 3
BREYER, J., concurring in judgment
As the dissent points out, “there are broad areas in
which any attempt by the state to penalize purportedly
false speech would present a grave and unacceptable dan-
ger of suppressing truthful speech.” Post, at 14. Laws
restricting false statements about philosophy, religion,
history, the social sciences, the arts, and the like raise
such concerns, and in many contexts have called for strict
scrutiny. But this case does not involve such a law. The
dangers of suppressing valuable ideas are lower where, as
here, the regulations concern false statements about easily
verifiable facts that do not concern such subject matter.
Such false factual statements are less likely than are true
factual statements to make a valuable contribution to the
marketplace of ideas. And the government often has
good reasons to prohibit such false speech. See infra, at
5–7 (listing examples of statutes and doctrines regulating
false factual speech). But its regulation can nonetheless
threaten speech-related harms. Those circumstances lead
me to apply what the Court has termed “intermediate
scrutiny” here.
II
A
The Stolen Valor Act makes it a crime “falsely” to “rep-
resen[t]” oneself “to have been awarded any decoration or
medal authorized by Congress for the Armed Forces of
the United States.” 18 U.S. C. §704(b). I would read the
statute favorably to the Government as criminalizing only
false factual statements made with knowledge of their fal-
sity and with the intent that they be taken as true. See
Staples v. United States, 511 U.S. 600, 605 (1994) (courts
construe statutes “in light of the background rules of the
common law, . . . in which the requirement of some mens
rea for a crime is firmly embedded”); cf. New York Times
Co. v. Sullivan, 376 U.S. 254, 279–280 (1964) (First
Amendment allows a public official to recover for defama-
4 UNITED STATES v. ALVAREZ
BREYER, J., concurring in judgment
tion only upon a showing of “ ‘actual malice’ ”). As so in-
terpreted the statute covers only lies. But although this
interpretation diminishes the extent to which the statute
endangers First Amendment values, it does not eliminate
the threat.
I must concede, as the Government points out, that this
Court has frequently said or implied that false factual
statements enjoy little First Amendment protection. See,
e.g., BE&K Constr. Co. v. NLRB, 536 U.S. 516, 531 (2002)
(“[F]alse statements may be unprotected for their own
sake”); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52
(1988) (“False statements of fact are particularly value-
less”); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340
(1974) (“[T]he erroneous statement of fact is not worthy of
constitutional protection”).
But these judicial statements cannot be read to mean
“no protection at all.” False factual statements can serve
useful human objectives, for example: in social contexts,
where they may prevent embarrassment, protect privacy,
shield a person from prejudice, provide the sick with com-
fort, or preserve a child’s innocence; in public contexts,
where they may stop a panic or otherwise preserve calm in
the face of danger; and even in technical, philosophical,
and scientific contexts, where (as Socrates’ methods sug-
gest) examination of a false statement (even if made delib-
erately to mislead) can promote a form of thought that
ultimately helps realize the truth. See, e.g., 638 F.3d
666, 673–675 (CA9 2011) (Kozinski, J., concurring in denial
of rehearing en banc) (providing numerous examples); S.
Bok, Lying: Moral Choice in Public and Private Life (1999)
(same); New York Times Co., supra, at 279, n. 19 (“Even a
false statement may be deemed to make a valuable contri-
bution to public debate, since it brings about ‘the clearer
perception and livelier impression of truth, produced by
its collision with error’ ” (quoting J. Mill, On Liberty 15
(Blackwell ed. 1947))).
Cite as: 567 U. S. ____ (2012) 5
BREYER, J., concurring in judgment
Moreover, as the Court has often said, the threat of
criminal prosecution for making a false statement can
inhibit the speaker from making true statements, thereby
“chilling” a kind of speech that lies at the First Amend-
ment’s heart. See, e.g., Gertz, supra, at 340–341. Hence,
the Court emphasizes mens rea requirements that provide
“breathing room” for more valuable speech by reducing an
honest speaker’s fear that he may accidentally incur liabil-
ity for speaking.
Further, the pervasiveness of false statements, made
for better or for worse motives, made thoughtlessly or de-
liberately, made with or without accompanying harm,
provides a weapon to a government broadly empowered to
prosecute falsity without more. And those who are un-
popular may fear that the government will use that
weapon selectively, say by prosecuting a pacifist who sup-
ports his cause by (falsely) claiming to have been a war
hero, while ignoring members of other political groups who
might make similar false claims.
I also must concede that many statutes and common-
law doctrines make the utterance of certain kinds of false
statements unlawful. Those prohibitions, however, tend to
be narrower than the statute before us, in that they limit
the scope of their application, sometimes by requiring
proof of specific harm to identifiable victims; sometimes by
specifying that the lies be made in contexts in which a
tangible harm to others is especially likely to occur; and
sometimes by limiting the prohibited lies to those that are
particularly likely to produce harm.
Fraud statutes, for example, typically require proof of a
misrepresentation that is material, upon which the victim
relied, and which caused actual injury. See Restatement
(Second) of Torts §525 (1976). Defamation statutes focus
upon statements of a kind that harm the reputation of
another or deter third parties from association or dealing
with the victim. See id., §§558, 559. Torts involving the
6 UNITED STATES v. ALVAREZ
BREYER, J., concurring in judgment
intentional infliction of emotional distress (like torts in-
volving placing a victim in a false light) concern falsehoods
that tend to cause harm to a specific victim of an emotional-,
dignitary-, or privacy-related kind. See id., §652E.
Perjury statutes prohibit a particular set of false state-
ments—those made under oath—while requiring a show-
ing of materiality. See, e.g., 18 U.S. C. §1621. Statutes
forbidding lying to a government official (not under oath)
are typically limited to circumstances where a lie is likely
to work particular and specific harm by interfering with
the functioning of a government department, and those
statutes also require a showing of materiality. See, e.g.,
§1001.
Statutes prohibiting false claims of terrorist attacks, or
other lies about the commission of crimes or catastrophes,
require proof that substantial public harm be directly
foreseeable, or, if not, involve false statements that are
very likely to bring about that harm. See, e.g., 47 CFR
§73.1217 (2011) (requiring showing of foreseeability and
actual substantial harm); 18 U.S. C. §1038(a)(1) (prohibit-
ing knowing false statements claiming that terrorist at-
tacks have taken, are taking, or will take, place).
Statutes forbidding impersonation of a public official
typically focus on acts of impersonation, not mere speech,
and may require a showing that, for example, someone
was deceived into following a “course [of action] he would
not have pursued but for the deceitful conduct.” United
States v. Lepowitch, 318 U.S. 702, 704 (1943); see, e.g.,
§912 (liability attaches to “[w]hoever falsely assumes or
pretends to be an officer or employee acting under the
authority of the United States . . . and acts as such” (em-
phasis added)).
Statutes prohibiting trademark infringement present,
perhaps, the closest analogy to the present statute.
Trademarks identify the source of a good; and infringe-
ment causes harm by causing confusion among potential
Cite as: 567 U. S. ____ (2012) 7
BREYER, J., concurring in judgment
customers (about the source) and thereby diluting the
value of the mark to its owner, to consumers, and to the econ-
omy. Similarly, a false claim of possession of a medal
or other honor creates confusion about who is entitled to
wear it, thus diluting its value to those who have earned
it, to their families, and to their country. But trademark
statutes are focused upon commercial and promotional
activities that are likely to dilute the value of a mark.
Indeed, they typically require a showing of likely confu-
sion, a showing that tends to assure that the feared harm
will in fact take place. See 15 U.S. C. §1114(1)(a); KP
Permanent Make-Up, Inc. v. Lasting Impression I, Inc.,
543 U.S. 111, 117 (2004); see also San Francisco Arts &
Athletics, Inc. v. United States Olympic Comm., 483 U.S.
522, 539–540, 548 (1987) (upholding statute giving the
United States Olympic Committee the right to prohibit
certain commercial and promotional uses of the word
“Olympic”).
While this list is not exhaustive, it is sufficient to show
that few statutes, if any, simply prohibit without limita-
tion the telling of a lie, even a lie about one particular
matter. Instead, in virtually all these instances limita-
tions of context, requirements of proof of injury, and the
like, narrow the statute to a subset of lies where specific
harm is more likely to occur. The limitations help to make
certain that the statute does not allow its threat of liabil-
ity or criminal punishment to roam at large, discouraging
or forbidding the telling of the lie in contexts where harm
is unlikely or the need for the prohibition is small.
The statute before us lacks any such limiting features.
It may be construed to prohibit only knowing and inten-
tional acts of deception about readily verifiable facts with-
in the personal knowledge of the speaker, thus reducing
the risk that valuable speech is chilled. Supra, at 3–4.
But it still ranges very broadly. And that breadth means
that it creates a significant risk of First Amendment
8 UNITED STATES v. ALVAREZ
BREYER, J., concurring in judgment
harm. As written, it applies in family, social, or other
private contexts, where lies will often cause little harm. It
also applies in political contexts, where although such lies
are more likely to cause harm, the risk of censorious se-
lectivity by prosecutors is also high. Further, given the
potential haziness of individual memory along with the
large number of military awards covered (ranging from
medals for rifle marksmanship to the Congressional Medal
of Honor), there remains a risk of chilling that is not com-
pletely eliminated by mens rea requirements; a speaker
might still be worried about being prosecuted for a careless
false statement, even if he does not have the intent re-
quired to render him liable. And so the prohibition may be
applied where it should not be applied, for example, to bar
stool braggadocio or, in the political arena, subtly but
selectively to speakers that the Government does not like.
These considerations lead me to believe that the statute as
written risks significant First Amendment harm.
B
Like both the plurality and the dissent, I believe the
statute nonetheless has substantial justification. It seeks
to protect the interests of those who have sacrificed their
health and life for their country. The statute serves this
interest by seeking to preserve intact the country’s recog-
nition of that sacrifice in the form of military honors. To
permit those who have not earned those honors to claim
otherwise dilutes the value of the awards. Indeed, the
Nation cannot fully honor those who have sacrificed so
much for their country’s honor unless those who claim to
have received its military awards tell the truth. Thus, the
statute risks harming protected interests but only in order
to achieve a substantial countervailing objective.
C
We must therefore ask whether it is possible substan-
Cite as: 567 U. S. ____ (2012) 9
BREYER, J., concurring in judgment
tially to achieve the Government’s objective in less bur-
densome ways. In my view, the answer to this question is
“yes.” Some potential First Amendment threats can be
alleviated by interpreting the statute to require knowledge
of falsity, etc. Supra, at 3–4. But other First Amendment
risks, primarily risks flowing from breadth of coverage,
remain. Supra, at 4–5, 7–8. As is indicated by the limita-
tions on the scope of the many other kinds of statutes
regulating false factual speech, supra, at 5–7, it should
be possible significantly to diminish or eliminate these re-
maining risks by enacting a similar but more finely tai-
lored statute. For example, not all military awards are
alike. Congress might determine that some warrant
greater protection than others. And a more finely tailored
statute might, as other kinds of statutes prohibiting false
factual statements have done, insist upon a showing that
the false statement caused specific harm or at least was
material, or focus its coverage on lies most likely to be
harmful or on contexts where such lies are most likely to
cause harm.
I recognize that in some contexts, particularly political
contexts, such a narrowing will not always be easy to
achieve. In the political arena a false statement is more
likely to make a behavioral difference (say, by leading the
listeners to vote for the speaker) but at the same time
criminal prosecution is particularly dangerous (say, by
radically changing a potential election result) and conse-
quently can more easily result in censorship of speakers
and their ideas. Thus, the statute may have to be signifi-
cantly narrowed in its applications. Some lower courts
have upheld the constitutionality of roughly comparable
but narrowly tailored statutes in political contexts. See,
e.g., United We Stand America, Inc. v. United We Stand,
America New York, Inc., 128 F.3d 86, 93 (CA2 1997)
(upholding against First Amendment challenge applica-
tion of Lanham Act to a political organization); Treasure of
10 UNITED STATES v. ALVAREZ
BREYER, J., concurring in judgment
the Committee to Elect Gerald D. Lostracco v. Fox, 150
Mich. App. 617, 389 N.W.2d 446 (1986) (upholding under
First Amendment statute prohibiting campaign material
falsely claiming that one is an incumbent). Without ex-
pressing any view on the validity of those cases, I would
also note, like the plurality, that in this area more accu-
rate information will normally counteract the lie. And an
accurate, publicly available register of military awards,
easily obtainable by political opponents, may well ade-
quately protect the integrity of an award against those
who would falsely claim to have earned it. See ante, at
17–18. And so it is likely that a more narrowly tailored
statute combined with such information-disseminating
devices will effectively serve Congress’ end.
The Government has provided no convincing explana-
tion as to why a more finely tailored statute would not
work. In my own view, such a statute could significantly
reduce the threat of First Amendment harm while permit-
ting the statute to achieve its important protective objec-
tive. That being so, I find the statute as presently drafted
works disproportionate constitutional harm. It conse-
quently fails intermediate scrutiny, and so violates the
First Amendment.
For these reasons, I concur in the Court’s judgment.
Cite as: 567 U. S. ____ (2012) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–210
_________________
UNITED STATES, PETITIONER v. XAVIER ALVAREZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 28, 2012]
JUSTICE ALITO, with whom JUSTICE SCALIA and JUS-
TICE THOMAS join, dissenting.
Only the bravest of the brave are awarded the Congres-
sional Medal of Honor, but the Court today holds that
every American has a constitutional right to claim to have
received this singular award. The Court strikes down the
Stolen Valor Act of 2005, which was enacted to stem an
epidemic of false claims about military decorations. These
lies, Congress reasonably concluded, were undermining
our country’s system of military honors and inflicting real
harm on actual medal recipients and their families.
Building on earlier efforts to protect the military awards
system, Congress responded to this problem by crafting a
narrow statute that presents no threat to the freedom of
speech. The statute reaches only knowingly false state-
ments about hard facts directly within a speaker’s per-
sonal knowledge. These lies have no value in and of
themselves, and proscribing them does not chill any
valuable speech.
By holding that the First Amendment nevertheless
shields these lies, the Court breaks sharply from a long
line of cases recognizing that the right to free speech does
not protect false factual statements that inflict real harm
and serve no legitimate interest. I would adhere to that
principle and would thus uphold the constitutionality of
this valuable law.
2 UNITED STATES v. ALVAREZ
ALITO, J., dissenting
I
The Stolen Valor Act makes it a misdemeanor to “falsely
represen[t]” oneself as having been awarded a medal,
decoration, or badge for service in the Armed Forces of the
United States. 18 U.S. C. §704(b). Properly construed,
this statute is limited in five significant respects. First,
the Act applies to only a narrow category of false represen-
tations about objective facts that can almost always be
proved or disproved with near certainty. Second, the Act
concerns facts that are squarely within the speaker’s
personal knowledge. Third, as the Government main-
tains, see Brief for United States 1517, and both the
plurality, see ante, at 7, and the concurrence, see ante, at 3
(BREYER, J., concurring in judgment), seemingly accept, a
conviction under the Act requires proof beyond a reasona-
ble doubt that the speaker actually knew that the repre-
sentation was false.1 Fourth, the Act applies only to
statements that could reasonably be interpreted as com-
municating actual facts; it does not reach dramatic per-
formances, satire, parody, hyperbole, or the like.2 Finally,
——————
1 Although the Act does not use the term “knowing” or “knowingly,”
we have explained that criminal statutes must be construed “in light of
the background rules of the common law . . . in which the requirement
of some mens rea for a crime is firmly embedded.” Staples v. United
States, 511 U.S. 600, 605 (1994). The Act’s use of the phrase “falsely
represents,” moreover, connotes a knowledge requirement. See Black’s
Law Dictionary 1022 (8th ed. 2004) (defining a “misrepresentation” or
“false representation” to mean “[t]he act of making a false or misleading
assertion about something, usu. with the intent to deceive” (emphasis
added)).
2 See Black’s Law Dictionary, supra, at 1327 (defining “representation”
to mean a “presentation of fact”); see also Milkovich v. Lorain Journal
Co., 497 U.S. 1, 20 (1990) (explaining that the Court has protected
“statements that cannot ‘reasonably [be] interpreted as stating actual
facts’ about an individual” so that “public debate will not suffer for lack of
‘imaginative expression’ or the ‘rhetorical hyperbole’ which has tradition-
ally added much to the discourse of our Nation” (quoting Hustler Maga-
zine, Inc. v. Falwell, 485 U.S. 46, 50 (1988); alteration in original)).
Cite as: 567 U. S. ____ (2012) 3
ALITO, J., dissenting
the Act is strictly viewpoint neutral. The false statements
proscribed by the Act are highly unlikely to be tied to
any particular political or ideological message. In the rare
cases where that is not so, the Act applies equally to all
false statements, whether they tend to disparage or com-
mend the Government, the military, or the system of mil-
itary honors.
The Stolen Valor Act follows a long tradition of efforts to
protect our country’s system of military honors. When
George Washington, as the commander of the Continental
Army, created the very first “honorary badges of distinc-
tion” for service in our country’s military, he established
a rigorous system to ensure that these awards would be
received and worn by only the truly deserving. See Gen-
eral Orders of George Washington Issued at Newburgh
on the Hudson, 1782–1783, p. 35 (E. Boynton ed. 1883)
(reprint 1973) (requiring the submission of “incontest-
ible proof ” of “singularly meritorious action” to the Com-
mander in Chief). Washington warned that anyone with the
“insolence to assume” a badge that had not actually been
earned would be “severely punished.” Id., at 34.
Building on this tradition, Congress long ago made it a
federal offense for anyone to wear, manufacture, or sell
certain military decorations without authorization. See
Act of Feb. 24, 1923, ch. 110, 42 Stat. 1286 (codified as
amended at 18 U.S. C. §704(a)). Although this Court has
never opined on the constitutionality of that particular
provision, we have said that §702, which makes it a crime
to wear a United States military uniform without authori-
zation, is “a valid statute on its face.” Schacht v. United
States, 398 U.S. 58, 61 (1970).
Congress passed the Stolen Valor Act in response to a
proliferation of false claims concerning the receipt of
military awards. For example, in a single year, more than
600 Virginia residents falsely claimed to have won the
4 UNITED STATES v. ALVAREZ
ALITO, J., dissenting
Medal of Honor.3 An investigation of the 333 people listed
in the online edition of Who’s Who as having received a
top military award revealed that fully a third of the claims
could not be substantiated.4 When the Library of Con-
gress compiled oral histories for its Veterans History
Project, 24 of the 49 individuals who identified themselves
as Medal of Honor recipients had not actually received
that award.5 The same was true of 32 individuals who
claimed to have been awarded the Distinguished Service
Cross and 14 who claimed to have won the Navy Cross.6
Notorious cases brought to Congress’ attention included
the case of a judge who falsely claimed to have been
awarded two Medals of Honor and displayed counterfeit
medals in his courtroom;7 a television network’s military
consultant who falsely claimed that he had received the
Silver Star;8 and a former judge advocate in the Marine
Corps who lied about receiving the Bronze Star and a
Purple Heart.9
——————
3 Colimore, Pinning Crime on Fake Heroes: N. J. Agent Helps Expose
and Convict Those with Bogus U. S. Medals, Philadelphia Inquirer,
Feb. 11, 2004, http://articles.philly.com/2004-02-11/news/25374213_1_
medals-military-imposters-distinguished-flying-cross (all Internet mate-
rials as visited June 25, 2012, and available in Clerk of Court’s case
file).
4 Crewdson, Claims of Medals Amount to Stolen Valor, Chicago Trib-
une, Oct. 26, 2008, http://www.chicagotribune.com/news/local/chi-valor-
oct25,0,4301227.story?page=1.
5 Half of MOH Entries in Oral History Project Are Incorrect, Marine
Corps Times, Oct. 1, 2007, 2007 WLNR 27917486.
6 Ibid.
7 Young, His Honor Didn’t Get Medal of Honor, Chicago Tribune, Oct.
21, 1994, http://articles.chicagotribune.com/1994-10-21/news/941021031
8_1_congressional-medal-highest-fritz.
8 Rutenberg, At Fox News, the Colonel Who Wasn’t, N. Y. Times, Apr.
29, 2002, http://www.nytimes.com/2002/04/29/business/at-fox-news-the-
colonel-who-wasn-t.html?pagewanted=all&src=pm.
9 B. Burkett & G. Whitley, Stolen Valor: How the Vietnam Generation
Was Robbed of Its Heroes and Its History 179 (1998).
Cite as: 567 U. S. ____ (2012) 5
ALITO, J., dissenting
As Congress recognized, the lies proscribed by the Sto-
len Valor Act inflict substantial harm. In many instances,
the harm is tangible in nature: Individuals often falsely
represent themselves as award recipients in order to
obtain financial or other material rewards, such as lucra-
tive contracts and government benefits.10 An investigation
of false claims in a single region of the United States, for
example, revealed that 12 men had defrauded the De-
partment of Veterans Affairs out of more than $1.4 million
in veteran’s benefits.11 In other cases, the harm is less
tangible, but nonetheless significant. The lies proscribed
by the Stolen Valor Act tend to debase the distinctive
honor of military awards. See Stolen Valor Act of 2005,
§2, 120 Stat. 3266, note following 18 U.S. C. §704 (finding
that “[f]raudulent claims surrounding the receipt of [mili-
tary decorations and medals] damage the reputation and
meaning of such decorations and medals”). And legitimate
award recipients and their families have expressed the
harm they endure when an imposter takes credit for he-
roic actions that he never performed. One Medal of Honor
recipient described the feeling as a “ ‘slap in the face
of veterans who have paid the price and earned their
medals.’ ”12
It is well recognized in trademark law that the prolifera-
tion of cheap imitations of luxury goods blurs the “ ‘signal’
——————
10 Indeed, the first person to be prosecuted under the Stolen Valor
Act apparently “parlayed his medals into lucrative security consulting
contracts.” Zambito, War Crime: FBI Targets Fake Heroes, New York
Daily News, May 6, 2007, http://www.nydailynews.com/news/crime/
war-crime-fbi-targets-fake-heroes-article-1.249168.
11 Dept. of Justice, Northwest Crackdown on Fake Veterans in “Oper-
ation Stolen Valor,” Sept. 21, 2007, http://www.justice.gov/usao/waw/
press/2007/sep/operationstolenvalor.html.
12 Cato, High Court Tussles With False Heroics: Free Speech or Fel-
ony? Pittsburg Tribune Review, Feb. 23, 2012, http://triblive.com/
usworld / nation / 1034434-85 / court - military - law-false-medals-supreme-
valor-act-federal-free.
6 UNITED STATES v. ALVAREZ
ALITO, J., dissenting
given out by the purchasers of the originals.” Landes &
Posner, Trademark Law: An Economic Perspective, 30 J.
Law & Econ. 265, 308 (1987). In much the same way, the
proliferation of false claims about military awards blurs
the signal given out by the actual awards by making them
seem more common than they really are, and this diluting
effect harms the military by hampering its efforts to foster
morale and esprit de corps. Surely it was reasonable for
Congress to conclude that the goal of preserving the in-
tegrity of our country’s top military honors is at least as
worthy as that of protecting the prestige associated with
fancy watches and designer handbags. Cf. San Francisco
Arts & Athletics, Inc. v. United States Olympic Comm., 483
U.S. 522, 539541 (1987) (rejecting First Amendment
challenge to law prohibiting certain unauthorized uses of
the word “Olympic” and recognizing that such uses harm
the U. S. Olympic Committee by “lessening the distinc-
tiveness” of the term).
Both the plurality and JUSTICE BREYER argue that
Congress could have preserved the integrity of military
honors by means other than a criminal prohibition, but
Congress had ample reason to believe that alternative
approaches would not be adequate. The chief alternative
that is recommended is the compilation and release of a
comprehensive list or database of actual medal recipients.
If the public could readily access such a resource, it is
argued, imposters would be quickly and easily exposed,
and the proliferation of lies about military honors would
come to an end.
This remedy, unfortunately, will not work. The De-
partment of Defense has explained that the most that it
can do is to create a database of recipients of certain top
military honors awarded since 2001. See Office of Under-
secretary of Defense, Report to the Senate and House
Armed Services Committees on a Searchable Military
Cite as: 567 U. S. ____ (2012) 7
ALITO, J., dissenting
Valor Decorations Database 45 (2009).13
Because a sufficiently comprehensive database is not
practicable, lies about military awards cannot be remedied
by what the plurality calls “counterspeech.” Ante, at 15.
Without the requisite database, many efforts to refute
false claims may be thwarted, and some legitimate award
recipients may be erroneously attacked. In addition, a
steady stream of stories in the media about the exposure
of imposters would tend to increase skepticism among
members of the public about the entire awards system.
This would only exacerbate the harm that the Stolen Valor
Act is meant to prevent.
The plurality and the concurrence also suggest that
Congress could protect the system of military honors by
enacting a narrower statute. The plurality recommends a
law that would apply only to lies that are intended to
“secure moneys or other valuable considerations.” Ante, at
11. In a similar vein, the concurrence comments that “a
more finely tailored statute might . . . insist upon a show-
ing that the false statement caused specific harm.” Ante,
at 9 (opinion of BREYER, J.). But much damage is caused,
both to real award recipients and to the system of mili-
tary honors, by false statements that are not linked to
any financial or other tangible reward. Unless even a
small financial loss—say, a dollar given to a homeless man
falsely claiming to be a decorated veteran—is more im-
portant in the eyes of the First Amendment than the
damage caused to the very integrity of the military awards
system, there is no basis for distinguishing between the
Stolen Valor Act and the alternative statutes that the
plurality and concurrence appear willing to sustain.
——————
13 Inaddition, since the Department may not disclose the Social Secu-
rity numbers or birthdates of recipients, this database would be of
limited use in ascertaining the veracity of a claim involving a person
with a common name. Office of Undersecretary of Defense, Report, at
34.
8 UNITED STATES v. ALVAREZ
ALITO, J., dissenting
JUSTICE BREYER also proposes narrowing the statute so
that it covers a shorter list of military awards, ante, at 9
(opinion concurring in judgment), but he does not provide
a hint about where he thinks the line must be drawn.
Perhaps he expects Congress to keep trying until it even-
tually passes a law that draws the line in just the right
place.
II
A
Time and again, this Court has recognized that as a
general matter false factual statements possess no intrin-
sic First Amendment value. See Illinois ex rel. Madigan v.
Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003)
(“Like other forms of public deception, fraudulent charita-
ble solicitation is unprotected speech”); BE&K Constr. Co.
v. NLRB, 536 U.S. 516, 531 (2002) (“[F]alse statements
may be unprotected for their own sake”); Hustler Maga-
zine, Inc. v. Falwell, 485 U.S. 46, 52 (1988) (“False state-
ments of fact are particularly valueless; they interfere
with the truth-seeking function of the marketplace of
ideas, and they cause damage to an individual’s reputation
that cannot easily be repaired by counterspeech, however
persuasive or effective”); Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 776 (1984) (“There is ‘no constitutional
value in false statements of fact’ ” (quoting Gertz v. Robert
Welch, Inc., 418 U.S. 323, 340 (1974))); Bill John-
son’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983)
(“[F]alse statements are not immunized by the First
Amendment right to freedom of speech”); Brown v.
Hartlage, 456 U.S. 45, 60 (1982) (“Of course, demonstra-
ble falsehoods are not protected by the First Amendment
in the same manner as truthful statements”); Herbert v.
Lando, 441 U.S. 153, 171 (1979) (“Spreading false infor-
mation in and of itself carries no First Amendment cre-
dentials”); Virginia Bd. of Pharmacy v. Virginia Citizens
Cite as: 567 U. S. ____ (2012) 9
ALITO, J., dissenting
Consumer Council, Inc., 425 U.S. 748, 771 (1976) (“Un-
truthful speech, commercial or otherwise, has never been
protected for its own sake”); Gertz, supra, at 340 (“[T]he
erroneous statement of fact is not worthy of constitutional
protection”); Time, Inc. v. Hill, 385 U.S. 374, 389 (1967)
(“[T]he constitutional guarantees [of the First Amend-
ment] can tolerate sanctions against calculated falsehood
without significant impairment of their essential func-
tion”); Garrison v. Louisiana, 379 U.S. 64, 75 (1964)
(“[T]he knowingly false statement and the false statement
made with reckless disregard of the truth, do not enjoy
constitutional protection”).
Consistent with this recognition, many kinds of false
factual statements have long been proscribed without
“ ‘rais[ing] any Constitutional problem.’ ” United States v.
Stevens, 559 U.S. ___, ___ (2010) (slip op., at 6) (quoting
Chaplinsky v. New Hampshire, 315 U.S. 568, 571572
(1942)). Laws prohibiting fraud, perjury, and defamation,
for example, were in existence when the First Amendment
was adopted, and their constitutionality is now beyond
question. See, e.g., Donaldson v. Read Magazine, Inc., 333
U.S. 178, 190 (1948) (explaining that the government’s
power “to protect people against fraud” has “always been
recognized in this country and is firmly established”);
United States v. Dunnigan, 507 U.S. 87, 97 (1993) (ob-
serving that “the constitutionality of perjury statutes is
unquestioned”); Beauharnais v. Illinois, 343 U.S. 250, 256
(1952) (noting that the “prevention and punishment” of
libel “have never been thought to raise any Constitutional
problem”).
We have also described as falling outside the First
Amendment’s protective shield certain false factual state-
ments that were neither illegal nor tortious at the time of
the Amendment’s adoption. The right to freedom of
speech has been held to permit recovery for the intentional
infliction of emotional distress by means of a false state-
10 UNITED STATES v. ALVAREZ
ALITO, J., dissenting
ment, see Falwell, supra, at 56, even though that tort did
not enter our law until the late 19th century, see W. Keeton,
D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton
on Law of Torts §12, p. 60, and n. 47. (5th ed. 1984) (here-
inafter Prosser and Keeton). And in Hill, supra, at 390,
the Court concluded that the free speech right allows
recovery for the even more modern tort of false-light inva-
sion of privacy, see Prosser and Keeton §117, at 863.
In line with these holdings, it has long been assumed
that the First Amendment is not offended by prominent
criminal statutes with no close common-law analog. The
most well known of these is probably 18 U.S. C. §1001,
which makes it a crime to “knowingly and willfully” make
any “materially false, fictitious, or fraudulent statement or
representation” in “any matter within the jurisdiction of
the executive, legislative, or judicial branch of the Gov-
ernment of the United States.” Unlike perjury, §1001
is not limited to statements made under oath or before
an official government tribunal. Nor does it require any
showing of “pecuniary or property loss to the government.”
United States v. Gilliland, 312 U.S. 86, 93 (1941). In-
stead, the statute is based on the need to protect “agencies
from the perversion which might result from the deceptive
practices described.” Ibid. (emphasis added).
Still other statutes make it a crime to falsely represent
that one is speaking on behalf of, or with the approval of,
the Federal Government. See, e.g., 18 U.S. C. §912 (mak-
ing it a crime to falsely impersonate a federal officer); §709
(making it a crime to knowingly use, without authoriza-
tion, the names of enumerated federal agencies, such as
“Federal Bureau of Investigation,” in a manner reasonably
calculated to convey the impression that a communication
is approved or authorized by the agency). We have recog-
nized that §912, like §1001, does not require a showing of
pecuniary or property loss and that its purpose is to
“ ‘maintain the general good repute and dignity’ ” of Gov-
Cite as: 567 U. S. ____ (2012) 11
ALITO, J., dissenting
ernment service. United States v. Lepowitch, 318 U.S.
702, 704 (1943) (quoting United States v. Barnow, 239
U.S. 74, 80 (1915)). All told, there are more than 100
federal criminal statutes that punish false statements
made in connection with areas of federal agency concern.
See United States v. Wells, 519 U.S. 482, 505507, and
nn. 810 (1997) (Stevens, J., dissenting) (citing “at least
100 federal false statement statutes” in the United States
Code).
These examples amply demonstrate that false state-
ments of fact merit no First Amendment protection in
their own right.14 It is true, as JUSTICE BREYER notes,
——————
14 The plurality rejects this rule. Although we have made clear that
“[u]ntruthful speech . . . has never been protected for its own sake,”
Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748, 771 (1976), the most the plurality is willing to concede is
that “the falsity of speech bears upon whether it is protected,” ante, at
9. This represents a dramatic—and entirely unjustified—departure
from the sound approach taken in past cases.
Respondent and his supporting amici attempt to limit this rule to
certain subsets of false statements, see, e.g., Brief for Respondent 53
(asserting that, at most, only falsity that is proved to cause specific
harm is stripped of its First Amendment protection), but the examples
described above belie that attempt. These examples show that the rule
at least applies to (1) specific types of false statements that were
neither illegal nor tortious in 1791 (the torts of intentional infliction of
emotional distress and false-light invasion of privacy did not exist when
the First Amendment was adopted); (2) false speech that does not cause
pecuniary harm (the harm remedied by the torts of defamation, inten-
tional infliction of emotional distress, and false-light invasion of privacy
is often nonpecuniary in nature, as is the harm inflicted by statements
that are illegal under §§912 and 1001); (3) false speech that does not
cause detrimental reliance (neither perjury laws nor many of the
federal false statement statutes require that anyone actually rely on
the false statement); (4) particular false statements that are not shown
in court to have caused specific harm (damages can be presumed in
defamation actions involving knowing or reckless falsehoods, and no
showing of specific harm is required in prosecutions under many of the
federal false statement statutes); and (5) false speech that does not
cause harm to a specific individual (the purpose of many of the federal
12 UNITED STATES v. ALVAREZ
ALITO, J., dissenting
that many in our society either approve or condone certain
discrete categories of false statements, including false
statements made to prevent harm to innocent victims and
so-called “white lies.” See ante, at 4. But respondent’s
false claim to have received the Medal of Honor did not
fall into any of these categories. His lie did not “prevent
embarrassment, protect privacy, shield a person from
prejudice, provide the sick with comfort, or preserve a
child’s innocence.” Ibid. Nor did his lie “stop a panic or
otherwise preserve calm in the face of danger” or further
philosophical or scientific debate. Ibid. Respondent’s
claim, like all those covered by the Stolen Valor Act,
served no valid purpose.
Respondent and others who join him in attacking the
Stolen Valor Act take a different view. Respondent’s brief
features a veritable paean to lying. According to respond-
ent, his lie about the Medal of Honor was nothing out of
the ordinary for 21st-century Americans. “Everyone lies,”
he says. Brief for Respondent 10. “We lie all the time.”
Ibid. “[H]uman beings are constantly forced to choose the
persona we present to the world, and our choices nearly
always involve intentional omissions and misrepresenta-
tions, if not outright deception.” Id., at 39. An academic
amicus tells us that the First Amendment protects the
right to construct “self-aggrandizing fabrications such as
having been awarded a military decoration.” Brief for
Jonathan D. Varat as Amicus Curiae 5.
This radical interpretation of the First Amendment is
not supported by any precedent of this Court. The lies
covered by the Stolen Valor Act have no intrinsic value
and thus merit no First Amendment protection unless
their prohibition would chill other expression that falls
within the Amendment’s scope. I now turn to that question.
——————
false statement statutes is to protect government processes).
Cite as: 567 U. S. ____ (2012) 13
ALITO, J., dissenting
B
While we have repeatedly endorsed the principle that
false statements of fact do not merit First Amendment
protection for their own sake, we have recognized that it is
sometimes necessary to “exten[d] a measure of strategic
protection” to these statements in order to ensure suffi-
cient “ ‘breathing space’ ” for protected speech. Gertz, 418
U. S., at 342 (quoting NAACP v. Button, 371 U.S. 415, 433
(1963)). Thus, in order to prevent the chilling of truthful
speech on matters of public concern, we have held that
liability for the defamation of a public official or figure
requires proof that defamatory statements were made
with knowledge or reckless disregard of their falsity. See
New York Times Co. v. Sullivan, 376 U.S. 254, 279280
(1964) (civil liability); Garrison, 379 U. S., at 7475 (crim-
inal liability). This same requirement applies when public
officials and figures seek to recover for the tort of inten-
tional infliction of emotional distress. See Falwell, 485
U. S., at 5556. And we have imposed “[e]xacting proof
requirements” in other contexts as well when necessary to
ensure that truthful speech is not chilled. Madigan, 538
U. S., at 620 (complainant in a fraud action must show
that the defendant made a knowingly false statement of
material fact with the intent to mislead the listener and
that he succeeded in doing so); see also BE&K Constr., 536
U. S., at 531 (regulation of baseless lawsuits limited to
those that are both “objectively baseless and subjectively
motivated by an unlawful purpose”); Hartlage, 456 U. S.,
at 61 (sustaining as-applied First Amendment challenge to
law prohibiting certain “factual misstatements in the
course of political debate” where there had been no show-
ing that the disputed statement was made “other than in
good faith and without knowledge of its falsity, or . . . with
reckless disregard as to whether it was false or not”). All
of these proof requirements inevitably have the effect of
14 UNITED STATES v. ALVAREZ
ALITO, J., dissenting
bringing some false factual statements within the protec-
tion of the First Amendment, but this is justified in order
to prevent the chilling of other, valuable speech.
These examples by no means exhaust the circumstances
in which false factual statements enjoy a degree of in-
strumental constitutional protection. On the contrary,
there are broad areas in which any attempt by the state to
penalize purportedly false speech would present a grave
and unacceptable danger of suppressing truthful speech.
Laws restricting false statements about philosophy, reli-
gion, history, the social sciences, the arts, and other mat-
ters of public concern would present such a threat. The
point is not that there is no such thing as truth or falsity
in these areas or that the truth is always impossible to
ascertain, but rather that it is perilous to permit the state
to be the arbiter of truth.
Even where there is a wide scholarly consensus concern-
ing a particular matter, the truth is served by allowing
that consensus to be challenged without fear of reprisal.
Today’s accepted wisdom sometimes turns out to be mis-
taken. And in these contexts, “[e]ven a false statement
may be deemed to make a valuable contribution to public
debate, since it brings about ‘the clearer perception and
livelier impression of truth, produced by its collision with
error.’ ” Sullivan, supra, at 279, n. 19 (quoting J. Mill, On
Liberty 15 (R. McCallum ed. 1947)).
Allowing the state to proscribe false statements in these
areas also opens the door for the state to use its power for
political ends. Statements about history illustrate this
point. If some false statements about historical events
may be banned, how certain must it be that a statement is
false before the ban may be upheld? And who should
make that calculation? While our cases prohibiting view-
point discrimination would fetter the state’s power to some
degree, see R. A. V. v. St. Paul, 505 U.S. 377, 384390
(1992) (explaining that the First Amendment does not
Cite as: 567 U. S. ____ (2012) 15
ALITO, J., dissenting
permit the government to engage in viewpoint discrimina-
tion under the guise of regulating unprotected speech), the
potential for abuse of power in these areas is simply too
great.
In stark contrast to hypothetical laws prohibiting false
statements about history, science, and similar matters,
the Stolen Valor Act presents no risk at all that valuable
speech will be suppressed. The speech punished by the
Act is not only verifiably false and entirely lacking in
intrinsic value, but it also fails to serve any instrumen-
tal purpose that the First Amendment might protect. Tell-
ingly, when asked at oral argument what truthful speech
the Stolen Valor Act might chill, even respondent’s counsel
conceded that the answer is none. Tr. of Oral Arg. 36.
C
Neither of the two opinions endorsed by Justices in the
majority claims that the false statements covered by the
Stolen Valor Act possess either intrinsic or instrumental
value. Instead, those opinions appear to be based on the
distinct concern that the Act suffers from overbreadth.
See ante, at 10 (plurality opinion) (the Act applies to “per-
sonal, whispered conversations within a home”); ante, at 8
(BREYER, J., concurring in judgment) (the Act “applies in
family, social, or other private contexts” and in “political
contexts”). But to strike down a statute on the basis that
it is overbroad, it is necessary to show that the statute’s
“overbreadth [is] substantial, not only in an absolute
sense, but also relative to [its] plainly legitimate sweep.”
United States v. Williams, 553 U.S. 285, 292 (2008); see
also ibid. (noting that this requirement has been “vigor-
ously enforced”). The plurality and the concurrence do not
even attempt to make this showing.
The plurality additionally worries that a decision sus-
taining the Stolen Valor Act might prompt Congress and
the state legislatures to enact laws criminalizing lies
16 UNITED STATES v. ALVAREZ
ALITO, J., dissenting
about “an endless list of subjects.” Ante, at 11. The plu-
rality apparently fears that we will see laws making it a
crime to lie about civilian awards such as college degrees
or certificates of achievement in the arts and sports.
This concern is likely unfounded. With very good rea-
son, military honors have traditionally been regarded as
quite different from civilian awards. Nearly a century ago,
Congress made it a crime to wear a military medal with-
out authorization; we have no comparable tradition re-
garding such things as Super Bowl rings, Oscars, or Phi
Beta Kappa keys.
In any event, if the plurality’s concern is not entirely
fanciful, it falls outside the purview of the First Amend-
ment. The problem that the plurality foresees—that
legislative bodies will enact unnecessary and overly intru-
sive criminal laws—applies regardless of whether the laws
in question involve speech or nonexpressive conduct. If
there is a problem with, let us say, a law making it a
criminal offense to falsely claim to have been a high school
valedictorian, the problem is not the suppression of speech
but the misuse of the criminal law, which should be re-
served for conduct that inflicts or threatens truly serious
societal harm. The objection to this hypothetical law
would be the same as the objection to a law making it a
crime to eat potato chips during the graduation ceremony
at which the high school valedictorian is recognized. The
safeguard against such laws is democracy, not the First
Amendment. Not every foolish law is unconstitutional.
The Stolen Valor Act represents the judgment of the
people’s elected representatives that false statements
about military awards are very different from false state-
ments about civilian awards. Certainly this is true with
respect to the high honor that respondent misappropri-
ated. Respondent claimed that he was awarded the Medal of
Honor in 1987 for bravery during the Iran hostage crisis.
This singular award, however, is bestowed only on those
Cite as: 567 U. S. ____ (2012) 17
ALITO, J., dissenting
members of the Armed Forces who “distinguis[h] [them-
selves] conspicuously by gallantry and intrepidity at the
risk of [their lives] above and beyond the call of duty.” 10
U.S. C. §3741; see also §§6241, 8741. More than half of
the heroic individuals to have been awarded the Medal of
Honor after World War I received it posthumously.15
Congress was entitled to conclude that falsely claiming to
have won the Medal of Honor is qualitatively different
from even the most prestigious civilian awards and that
the misappropriation of that honor warrants criminal
sanction.
* * *
The Stolen Valor Act is a narrow law enacted to address
an important problem, and it presents no threat to free-
dom of expression. I would sustain the constitutionality of
the Act, and I therefore respectfully dissent.
——————
15 See U. S. Army Center of Military History, Medal of Honor Statis-
tics, http://www.history.army.mil/html/moh/mohstats.html.