Memorandum

To: Head of Public Relations From: Kara Brenholt Date: October 7, 2012 Re: The Stolen Valor Act: Patriotic Symbolism vs. The Freedom to Lie ________________________________________________________________________ Issue Summary I. Facts of the Case When Xavier Alvarez deceitfully announced at a Three Valley Water District Board meeting in 2007 that he was the recipient of the prestigious Congressional Medal of Honor military award, he violated a federal lawThe Stolen Valor Act (18 U. S. C. 704 (b), (c)). After being convicted, he appealed to The United States Court of Appeals for the Ninth Circuit stating that the conviction was a violation of his First Amendment right to free speech. While the Ninth Circuit found The Stolen Valor Act unconstitutional, the Tenth Circuit found it constitutional in a similar case (United States v. Strandlof, 667 F. 3d 1146 (2012). The U.S. Supreme Court granted certiorari to the Alvarez case. This case questions the boundaries of the First Amendment right to free speech in the context of military honor. The plurality, Justices Kennedy, Ginsburg, and Sotomayor (along with the concurring justices), assert that there are highly specific and categorical exceptions to the right to free speech, and that this case does not fall under any of the categories. They represent a common viewpoint championing individuality and the free flow of ideas in democracy. The dissent, Justices Alito, Scalia, and Thomas, argue that preserving the sacredness of military

honors is an important governmental objective, and The Stolen Valor Act is accordingly appropriate. I side with the plurality. II. Plurality vs. Dissent: Arguments and Counter-Arguments Content-Based Speech At heart of the pluralitys argument was that the government has no power to restrict speech based on its content unless the government can prove the constitutionality of the restriction (per the precedent set in Ashcroft v. American Civil Liberties Union, 553 U.S. 564, 573 (2002)). The plurality rested its opinion on strict scrutiny of the law in question. They recognized that throughout history, the court has allowed some restriction on content-based speech. These instances arose because the forms of speech analyzed in the cases could actually cause harm to others. This list includes speech that may incite imminent lawless action, obscenity, defamation, speech integral to criminal conduct, fighting words, child pornography, fraud, true threats, and speech presenting an imminent threat to the government. False statements are purposely excluded from this list, for reasons that will be discussed later. Challengers of this argument, including the government and dissenting justices in this case, refute that false statements that have no value and are too isolated or specific to chill fully protected speech deserve no protection under the First Amendment. Chilling of Free Speech and The Marketplace of Ideas According to N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964), which involved a false advertisement criticizing police officers, reprimanding individuals for getting

facts slightly wrong or making false statements that do not cause direct harm to others chills the flow of free speech. If citizens are afraid that making an accidental or silly false statement could get them in trouble with the government, they are much less likely to express their opinions. A prominent counter-argument to this idea is that The Slippery Slope Argument A third point the plurality makes is that allowing a statute like this would open a door for the government to continue to make broad content-based speech restrictions. As Kennedy eloquently points out, 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 government authority to compile a list of subjects about which false statements are punishable. This would set a precedent to allow the government to pinpoint any subject matter it deems appropriate to restrict and prohibit speech on that subject completely. This is precisely what the First Amendment was made to prevent. However, some argue that Causal Link Argument Finally, the government asserts that, even if the government were allowed to make laws restricting speech when it involves the military honors system, the statute in question would still be inpermissible. The First Amendment specifically says that the restriction must be actually necessary to achieve the objective at hand, which in this case is preserving the integrity of the military honors. This means there must be a DIRECT link between the government objective and the law.

The government did not put forth any evidence that the publics perception of the award was tarnished by Alvarezs proclamation. In fact, he was thoroughly ridiculed and shamed by the public. The dissenting opinion argues that III. A More Moderate Perspective: The Concurring Opinion The concurring justices, using a more moderate method (which they refer to as intermediate scrutiny) to decide of the constitutionality of the law, found that the law restricted content-based speech much too broadly to be outside the reach of the First Amendment. Unlike the plurality, however, the concurrence left room for a similar law with the same objective to be drafted if it can be more specific. My Opinion To me, the most important concept that is present in this case is the courts tradition of encouraging a marketplace of ideas. I find this to be, by far, the most convincing argument of any of the opinions. While it is almost ubiquitous in the U.S. to have utmost respect for the defenders of our country, I think it is important to note that these people, by defending our country, are defending the tradition of our Constitution, a document that is so sacred because of its themes of freedom and individuality. (INCLUDE COUNTERARGUMENTS) I. Implications a. Majority i. Flag burning example

ii. Two different viewpoints on societyintegrity of symbols and respect for country vs. complete freedom of speech iii. Emphasis on education/free thinking/no set guidelines for right vs. wrong b. Concurring c. Dissenting