Like many Supreme Court decisions, United States v. Alvarez (1) answered many questions. Can the government proscribe false statements solely because they are false? (No.) What must the government establish before regulating or proscribing speech? (Likely or actual harm.) Also like many Supreme Court decisions, Alvarez created (or resurrected) at least as many questions as it answered. How much harm is required before the government can regulate speech? How do courts and lawmakers discern the holding when no opinion garnered a majority of Justices?
Both judges and lawmakers look to the Court for guidance. While judges have the advantage of actual parties and concrete facts, legislators must gaze into the future to craft legislation that comports with the Court's decision while meeting the needs of their constituents. This challenging task is made all the more difficult when the Court's decision is fractured, with no single legal theory attracting the votes of five Justices. This article attempts to shed some light on the path forward for the legislative branch, bifurcating (as does the Alvarez decision) to address the harms posed by false claims of military awards. This article starts by examining the pre-Alvarez legal landscape of proscribing content-based speech, (2) then examines how the Court treated its own precedent in Alvarez, including an analysis of Justice Breyer's concurrence and its application of intermediate scrutiny to content-based speech. (3) Of particular note is the emphasis on--and the differing treatments of--counterspeech, and its effect on the constitutional analysis. (4) Finally, both approaches to false statements of fact are applied to various approaches to addressing the harm of false claims of military valor: the plurality's approach as applied to the Stolen Valor Act of 2012 (which recently passed the House by a vote of 410 to 3), and Justice Breyer's intermediate scrutiny as applied to a statute designed to protect the reputation of military awards. (5)
I. PROHIBITING LYING IS CONTENT-BASED REGULATION
Everyone agrees: proscribing falsehoods is a content-based regulation of speech. (6) Because content-based restrictions are presumptively invalid (7) this fact presented problems for Craig Missakian, (8) the Assistant United States Attorney defending the Stolen Valor Act (SVA or the Act) before the Ninth Circuit. To successfully defend the SVA, Mr. Missakian had to establish that either the First Amendment didn't apply to false statements of fact, or, if the First Amendment protected those falsehoods, the SVA either satisfied the rigors of strict scrutiny or fell into a "well-defined" exception. (9)
The Ninth Circuit majority--Judges Milan D. Smith, Jr. (l0) and the late Thomas Nelson (11)--started by "presumptively protect[ing] all speech against government interference," (12) including false statements of fact. The majority also rejected the contention that the SVA was the least restrictive means to achieve the government's ends, (13) a point conceded (14) by the lone dissenter, Judge Jay Bybee. (15)
Thus, the only remaining avenue to save the Act was to construe it as a member of a "well-defined and narrowly limited class of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." (16) The Supreme Court enumerated these "narrow classes" in United States v. Stevens, and indicated that while the list was not finite, discovery of additional classes of unprotected speech would be rare. (17)
Although Stevens had not been decided when Alvarez was argued at the Ninth Circuit on November 4, 2009, Xavier Alvarez's attorney, Assistant Federal Public Defender Jonathan Libby (who would also represent Alvarez before the Supreme Court), (18) successfully argued that the SVA did not fall into any of the categorical exceptions later collected by the Stevens Court. (19) The Ninth Circuit's decision, handed down just over four months after Stevens, was one of the first applications of Stevens's categorical approach. …