TOPICS > Politics

Supreme Court Hears Free Speech Case Over Stolen Valor Act

February 22, 2012 at 12:00 AM EDT
Falsely claiming a Congressional Medal of Honor could land you in jail according to the Stolen Valor Act, a federal law making it a crime to lie about a military decoration. Margaret Warner and Marcia Coyle discuss a case involving that law under review by the Supreme Court plus a case involving ownership of Montana riverbeds.

JUDY WOODRUFF: And to the Supreme Court, where the question today was, when does lying cross the line and become a crime?

Margaret Warner has that story.

MARGARET WARNER: Today’s case stems from a claim made in 2007 by Xavier Alvarez, an elected member of a California water district board. He introduced himself at a public meeting by saying he was a retired Marine, and adding:

XAVIER ALVAREZ, Three Valleys Municipal Water District Board Member: Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”

MARGARET WARNER: None of it was true. Alvarez was charged with violating the 2006 Stolen Valor Act, which makes it a crime to lie about having received a military decoration.

Alvarez was fined and sentenced to probation and community service. He appealed, arguing the law violated the First Amendment. And the Ninth Circuit ruled in his favor.

Also today, in a case widely watched in the American West, the court ruled unanimously in favor of a Montana power company in a dispute over who owns the riverbeds of three Montana rivers. The justices threw out a state court order that the PPL Montana company pay the state some $50 million for using the riverbeds for hydroelectric plants and dams.

For more on both cases, we are joined by Marcia Coyle of The National Law Journal.

And welcome back, Marcia Coyle.

MARCIA COYLE, The National Law Journal: Thanks, Margaret.

MARGARET WARNER: So, first of all, let’s do the Alvarez case, the Stolen Valor Act.


MARGARET WARNER: Give us a little context here. When is lying a crime, and when is lying protected speech?

MARCIA COYLE: Well, lies are speech. The First Amendment protects speech, but it doesn’t protect all lies.

For example, perjury, fraud, those are crimes. The First Amendment doesn’t protect defamation and libel. There are some exceptions, but it doesn’t protect them. But, in all cases in which the First Amendment doesn’t protect a lie, it’s because there’s been a requirement that there be an intent to do harm or harm has occurred.

That brings us to the problem with the Stolen Valor Act.

MARGARET WARNER: So, tell us how it unfolded today. The government would have been gone first here, because they would have been appealing the Ninth Circuit decision.


The federal law doesn’t have a requirement of harm. So the arguments here focus really on two issues. The justices were very focused on, one, what harm is there from someone lying about having gotten a medal, and, two, if the government can make this type of lie a crime, where does the government’s police powers stop? What other lies can it make a crime?

The justices peppered the government’s chief lawyer, Don Verrilli, who is the solicitor general, with a number of hypotheticals. Chief Justice Roberts said, well, what about someone who lies about having a high school diploma? Congress could say we want people to finish high school, and so makes a law that makes it a crime to lie about that.

Other justices said, what about lies about extramarital affairs? Mr. Verrilli stressed that this law is narrow, it’s pointed. It requires a false — a knowing false statement of fact about the person himself or herself.

He also faced a series of questions about harm. Justice Sotomayor said, you know, is this law really getting at the fact that we are upset? There’s an emotional reaction when someone lies about having received a medal. She said, I get upset when someone lies to me on a date, makes a claim about something that isn’t true.


MARCIA COYLE: But what is the harm?

And, again, Mr. Verrilli had to respond and say, even though it’s not written in the law that there be harm, the harm is that there’s been a misappropriation of the esteem that goes along with these awards. He said, very bluntly, the government’s saying, when we give these awards, it’s a big deal. Then, if the government stands by and lets some charlatan misappropriate that, that’s harm, and it’s harm to the courageous men and women who have earned these medals.

MARGARET WARNER: Now, what did the lawyer for Mr. Alvarez say? After all, they won in the Ninth Circuit.

MARCIA COYLE: Well, he actually struggled today with the questions from the justices.

He started out by saying, this law criminalizes pure speech, regardless of whether there is harm. And the justices asked him, well — Justice Kagan in particular said, well, what truthful speech does this law chill? And he made a rather amazing concession.

MARGARET WARNER: Which is a test for a First Amendment case.

MARCIA COYLE: Absolutely.

He say, it may be that this law doesn’t chill any speech, which he thought — she said, that’s a big concession. But then he sort of backed down and he said he felt that this law could cover things such as satire, parodies, other performances.

MARGARET WARNER: You mean he thought that, actually, this law could make those a crime?

MARCIA COYLE: Yes, yes, that if — because satire isn’t truthful. Neither is parody.

He was also pressed on, was there another way the Congress could get at this problem? And he said, yes, the military could redouble its efforts in assuring that the awards match the person who received them. There were other ways.

MARGARET WARNER: Then let’s go to — they actually had a ruling today in this Montana power company vs. state of Montana case.

These dams, some of them, I gather, have been on these rivers 100 years. Why did this arise now?

MARCIA COYLE: It’s fascinating that title to the riverbeds in a number of states just has not been disputed in court for, in Montana’s case, over 100 years.

But this actually came up because a group of parents of schoolchildren concerned about state funding of education brought a lawsuit raising, who should really be getting rent from, for example, PPL Montana, for using these riverbeds? Up to this point, the United States was getting the rent.

So the court had to deal with, how do you determine who has title? It has to be determined at the point of statehood for Montana. That’s 1889. And the state gets title to the riverbed if the river is navigable. The Supreme Court today — it was a unanimous opinion by Justice Kennedy — said the Montana Supreme Court used the wrong test.

Justice Kennedy said, you’ve got to look at the river segment by segment. These rivers had segments that were not navigable.

MARGARET WARNER: At the time they. . .


MARGARET WARNER: . . . became a state.

MARCIA COYLE: Right, and still probably are not, Great Falls on the Missouri River.

Because they were not navigable, the United States had title. The utility is paying the rent to the United States, not Montana.

MARGARET WARNER: Now, there was something like 26 other states weighed in on this case on Montana’s side.


MARGARET WARNER: What are they worried about? And what are the implications of this?

MARCIA COYLE: They’re very concerned about a test like this that looks at a river segment by segment.

They have, literally, thousands of leases out for public uses of their rivers. And the concern now is, if you can take a segment away from state control, it can go to private control. They lose the lease money, and they’re put in the awkward position of maybe having to negotiate with private owners.

MARGARET WARNER: Why doesn’t it just go to the federal government?

MARCIA COYLE: It will go to the federal government, but the state may try in some way to have an arrangement for public use.

MARGARET WARNER: All right, well, Marcia, thank you.

I guess this is going to be widely watched, as I said, in the American West certainly.

MARCIA COYLE: And, certainly, the Stolen Valor case also. That drew a lot of attention from veterans groups and civil liberties groups, on opposite sides.

MARGARET WARNER: And when is a ruling expected in that?

MARCIA COYLE: Probably by June, late June.

MARGARET WARNER: Well, we w’ll be watching, with you.


MARGARET WARNER: Thanks, Marcia.

MARCIA COYLE: You’re welcome.