Splintered Supreme Court Shoots Down Stolen Valor Act Under First Amendment

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Originally published in The United States Law Week, 81 U.S.L.W. 9, 07/03/2012. Copyright 2012 by The Bureau of National Affairs, Inc.

Lies about having received military awards may be speech protected by the First Amendment, the U.S. Supreme Court held June 28 (United States v. Alvarez, U.S., No. 11-210, 6/28/12).

Without agreeing on the reasoning, six justices decided that the Stolen Valor Act, which criminalizes lying about receiving a military medal, violates the First Amendment rights of the liar.

Justice Anthony M. Kennedy, joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg and Sonia Sotomayor, applied strict scrutiny to the statute. Justice Stephen G. Breyer, joined by Justice Elena Kagan, concurred in the judgment but applied intermediate scrutiny and suggested that the statute can be rewritten to avoid its constitutional problems.

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