Document Type

Article

Publication Date

2012

Abstract

Later this term the Supreme Court will decide the constitutionality of the Stolen Valor Act, which punishes anyone who falsely represents themselves to have been awarded certain military medals. Although the Court declared the crime of seditious libel inconsistent with the First Amendment long ago, the Act revives something very like that crime. The connection between the two crimes is not immediately obvious but the government’s underlying reasoning is nearly identical in both. Officials justified seditious libel prosecutions by claiming, without proof, that criticism of the government undermined its authority and reduced the public’s respect for it, ultimately threatening national security. Contemporary government officials argue, without proof, that the Act is necessary because lies dilute the “prestige and honor” of military medals, undermining the reputations of those who receive them and military readiness. The Court’s rejection of seditious libel suggests that the Stolen Valor Act is similarly unconstitutional. The Court’s low value speech jurisprudence, which was at the core of lower court disputes over the Act, evolved in response to the government’s pursuit of seditious libel prosecutions. That jurisprudence requires a tight causal nexus between speech and harm, which is completely lacking in the government’s justification of the Stolen Valor Act. The Court has also rejected the government’s interest in protecting it’s own “honor” or “dignity”, the core interest the Act seeks to protect. Laws based in such interests compel respect for government and establish government orthodoxy, which is inconsistent with the Court’s jurisprudence.

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