Scalia Versus the First Amendment

Right before the Supreme Court announced the Sebelius ruling, it struck down the Stolen Valor Act. Now that it’s dead, it may go down as one of the great, politicized, busybody laws. The DOD and veterans’ groups had complained, for some time, that people who lied and claimed military awards and heroism were ruining it for the real heroes. Democrats – Rep. John Salazar and Sen. Kent Conrad – introduced a law that made bogus heroism a federal misdemeanor.

Justice Kennedy, writing for the majority, yesterday, nuked this on speech grounds. Tthe remedy for speech that is false is speech that is true,” he wrote. “This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” And:

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 interest. 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 tradition. 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.

That was the court’s swing vote. Antonin Scalia, who’s a free speech libertarian when it comes to campaign finance, drew the line on this one.

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 instrumental purpose that the First Amendment might protect.  Tellingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none.

There’s data in the Scalia dissent, but it seems like a heavy carry – why wouldn’t a checkable database of military heroes shame fake veterans, all on its own? Why criminalize the fraud even further?