ABFFE Among Groups Urging Supreme Court to Hold Stolen Valor Act Unconstitutional

Stating that “the integrity of the military award system relies more on a free press than on the threat of prosecution,” writers, performers, and media organizations, including the American Booksellers Foundation for Free Expression [1], are urging the Supreme Court to hold that a federal law making it a crime to lie about having received a military medal violates the free speech protections of the First Amendment.

In oral arguments on Wednesday, February 22, the federal government asked the Supreme Court to reverse an appeals court decision that held the Stolen Valor Act unconstitutional. The media groups contend that, in doing so, the government is seeking to strip First Amendment protection from and criminalize factually false speech even when the speaker does not defame or defraud anyone, whenever the government says there is a strong governmental interest in the “truth.”

In an amicus curiae brief, coordinated by Media Coalition [2], the groups argue that while defamation and fraud are recognized historic exceptions to the First Amendment, there has never been an exception for false speech.

“It is dangerous to suggest that the government can punish false speech as long as there is a strong governmental interest,” David Horowitz, executive director of Media Coalition, said. “There are many areas where there is a strong governmental interest — such as whether there were weapons of mass destruction in Iraq in 2002 and the causes of climate change — where vigorous public dialogue should be encouraged, not chilled by criminal penalties.”

“Obviously, we do not believe that people should lie about receiving the Medal of Honor or any other military honor,” said ABFFE President Chris Finan. “The defendant in this case was exposed by the press and richly deserved the public ridicule he received.  But it is dangerous to criminalize even false speech.  The government could make it a crime for a blogger to deny that the president was born in the United States or to punish an environmentalist for ‘lying’ about the danger posed by ‘fracking’ to produce natural gas.”

The amicus curiae brief also notes that the title of the federal law, the Stolen Valor Act, is misleading. “The Act actually covers not only valor awards but also any decoration or medal” awarded to members of the military, the brief states. While the case before the Supreme Court involves a false boast of having received the Congressional Medal of Honor, if the Stolen Valor Act were reinstated, the brief says, the court would need to be “prepared to sustain the conviction of a veteran who falsely told a grandchild of having won the Navy Expert Rifleman Medal with a motive no more malicious than to interest the child in riflery.”

During Wednesday’s oral arguments, the Supreme Court justices expressed sympathy for the aims of the Stolen Valor Act, but had concerns about how far the government could go in punishing liars of all stripes, as  reported by the Wall Street Journal [3]. However, the paper noted, “Some justices appeared to be looking for ways to uphold the Stolen Valor Act while making clear that they wouldn’t approve of criminalizing other types of lies.”

Other parties in the amicus brief are the American Federation of Television and Radio Artists, Association of American Publishers, Comic Book Legal Defense Fund, Entertainment Merchants Association, Freedom to Read Foundation, PEN American Center, Village Voice Media Holdings, and Writers Guild of America, West, Inc.

The media groups are represented by Michael A. Bamberger and Richard M. Zuckerman of SNR Denton US LLP and Jonathan Bloom of Weil Gotshal & Manges.