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SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[June 28, 2012]
Justice Kennedy announced the judgment of the
Court and delivered an opinion, in which The Chief Justice, Justice
Ginsburg, and Justice Sotomayor join.
Lying was his habit. Xavier Alvarez, the
respondent here, lied when he said that he played hockey for the
Detroit Red Wings and that he once married a starlet from Mexico.
But when he lied in announcing he held the Con-gressional Medal of
Honor, respondent ventured onto new ground; for that lie violates a
federal criminal statute, the Stolen Valor Act of 2005. 18
U. S. C. §704.
In 2007, respondent attended his first public
meeting as a board member of the Three Valley Water District Board.
The board is a governmental entity with headquarters in Claremont,
California. He introduced himself as follows: “I’m a
retired marine of 25 years. I retired in the year 2001. Back in
1987, I was awarded the Congressional Medal of Honor. I got wounded
many times by the same guy.” 617 F.3d 1198, 1201–1202
(CA9 2010). None of this was true. For all the record shows,
respondent’s statements were but a pathetic attempt to gain
respect that eluded him. The statements do not seem to have been
made to secure employment or financial benefits or admission to
privileges reserved for those who had earned the Medal.
Respondent was indicted under the Stolen Valor
Act for lying about the Congressional Medal of Honor at the
meeting. The United States District Court for the Central District
of California rejected his claim that the statute is invalid under
the First Amendment. Respondent pleaded guilty to one count,
reserving the right to appeal on his First Amendment claim. The
United States Court of Appeals for the Ninth Circuit, in a decision
by a divided panel, found the Act invalid under the First Amendment
and reversed the conviction. Id.
, at 1218. With further
opinions on the issue, and over a dissent by seven judges,
rehearing en banc was denied. 638 F.3d 666 (2011). This Court
granted certiorari. 565 U. S. ___ (2011).
After certiorari was granted, and in an
unrelated case, the United States Court of Appeals for the Tenth
Circuit, also in a decision by a divided panel, found the Act
constitutional. United States
, 667 F.3d
1146 (2012). So there is now a conflict in the Courts of Appeals on
the question of the Act’s validity.
This is the second case in two Terms requiring
the Court to consider speech that can disparage, or attempt to
steal, honor that belongs to those who fought for this Nation in
battle. See Snyder
, 562 U. S. ___
(2011) (hateful protests directed at the funeral of a serviceman
who died in Iraq). Here the statement that the speaker held the
Medal was an intended, undoubted lie.
It is right and proper that Congress, over a
century ago, established an award so the Nation can hold in its
high- est respect and esteem those who, in the course of carrying
out the “supreme and noble duty of contributing to the
defense of the rights and honor of the nation,” Selective
Draft Law Cases, 245 U.S.
(1918), have acted with extraordinary honor. And it should be
uncontested that this is a legitimate Government objective, indeed
a most valued national aspiration and purpose. This does not end
the inquiry, however. Fundamental constitutional principles require
that laws enacted to honor the brave must be consistent with the
precepts of the Constitution for which they fought.
The Government contends the criminal prohibition
is a proper means to further its purpose in creating and awarding
the Medal. When content-based speech regulation is in question,
however, exacting scrutiny is required. Statutes suppressing or
restricting speech must be judged by the sometimes inconvenient
principles of the First Amendment. By this measure, the statutory
provisions under which respondent was convicted must be held
invalid, and his conviction must be set aside.
Respondent’s claim to hold the
Congressional Medal of Honor was false. There is no room to argue
about in-terpretation or shades of meaning. On this premise,
respondent violated §704(b); and, because the lie concerned
the Congressional Medal of Honor, he was subject to an enhanced
penalty under subsection (c). Those statutory provisions are as
“(b) False Claims About Receipt of
Military Decorations or Medals.––Whoever falsely
represents himself or herself, verbally or in writing, to have been
awarded any decoration or medal authorized by Congress for the
Armed Forces of the United States . . . shall be fined
under this title, imprisoned not more than six months, or both.
“(c) Enhanced Penalty for Offenses
Involving Congressional Medal of Honor.––
“(1) In General.––If a
decoration or medal involved in an offense under subsection (a) or
(b) is a Congressional Medal of Honor, in lieu of the punishment
provided in that subsection, the offender shall be fined under this
title, imprisoned not more than 1 year, or both.”
Respondent challenges the statute as a
content-based suppression of pure speech, speech not falling within
any of the few categories of expression where content-based
regulation is permissible. The Government defends the statute as
necessary to preserve the integrity and purpose of the Medal, an
integrity and purpose it contends are compromised and frustrated by
the false statements the statute prohibits. It argues that false
statements “have no First Amendment value in
themselves,” and thus “are protected only to the extent
needed to avoid chilling fully protected speech.” Brief for
United States 18, 20. Al-though the statute covers
respondent’s speech, the Government argues that it leaves
breathing room for pro-tected speech, for example speech which
might criticize the idea of the Medal or the importance of the
military. The Government’s arguments cannot suffice to save
“[A]s a general matter, the First
Amendment means that government has no power to restrict expression
because of its message, its ideas, its subject matter, or its
v. American Civil Liberties
, 535 U.S.
, 573 (2002) (internal quotation marks omitted). As a
result, the Constitution “demands that content-based
restrictions on speech be presumed invalid . . . and that
the Government bear the burden of showing their
v. American Civil
, 542 U.S.
, 660 (2004).
In light of the substantial and expansive
threats to free expression posed by content-based restrictions,
this Court has rejected as “startling and dangerous” a
“free-floating test for First Amendment coverage
. . . [based on] an ad hoc balancing of relative
social costs and benefits.” United States
, 559 U. S. ___, ___ (2010) (slip op., at 7).
Instead, content-based restrictions on speech have been permitted,
as a general matter, only when confined to the few
“ ‘historic and traditional categories [of
expression] long familiar to the bar,’ ”
at ___ (slip op., at 5) (quoting Simon &
v. Members of N. Y. State Crime Victims
, 502 U.S.
, 127 (1991) (Kennedy, J., concurring in judgment)). Among
these categories are advocacy intended, and likely, to incite
imminent lawless action, see Brandenburg
(1969) (per curiam);
obscenity, see, e.g.,
, 413 U.S.
(1973); defamation, see, e.g., New York Times Co.
, 376 U.S.
(1964) (providing substantial protection for speech about
public figures); Gertz
v. Robert Welch, Inc.
(1974) (imposing some limits on liability for defaming a
private figure); speech integral to criminal conduct, see,
v. Empire Storage & Ice Co.
(1949); so-called “fighting words,” see
v. New Hampshire
(1942); child pornography, see New York
, 458 U.S.
(1982); fraud, see Virginia Bd. of Pharmacy
Virginia Citizens Consumer Council, Inc.
, 425 U.S.
, 771 (1976); true threats, see Watts
, 394 U.S.
(1969) (per curiam);
and speech presenting some
grave and imminent threat the government has the power to prevent,
v. Minnesota ex rel. Olson
, 283 U.S.
, 716 (1931), although a restriction under the last category
is most difficult to sustain, see New York Times Co.
, 403 U.S.
(1971) (per curiam)
. These categories have a
historical foundation in the Court’s free speech tradition.
The vast realm of free speech and thought always protected in our
tradition can still thrive, and even be furthered, by adherence to
those categories and rules.
Absent from those few categories where the law
allows content-based regulation of speech is any general exception
to the First Amendment for false statements. This comports with the
common understanding that some false statements are inevitable if
there is to be an open and vigorous expression of views in public
and private con-versation, expression the First Amendment seeks to
guarantee. See Sullivan, supra,
at 271 (“Th[e]
erroneous statement is inevitable in free debate”).
The Government disagrees with this proposition.
It cites language from some of this Court’s precedents to
support its contention that false statements have no value and
hence no First Amendment protection. See also Brief for Eugene
Volokh et al. as Amici Curiae
2–11. These isolated
statements in some earlier decisions do not support the
Government’s submission that false statements, as a general
rule, are beyond constitutional protection. That conclusion would
take the quoted language far from its proper context. For instance,
the Court has stated “[f]alse statements of fact are
particularly valueless [because] they interfere with the
truth-seeking function of the marketplace of ideas,”
Hustler Magazine, Inc.
, 485 U.S.
, 52 (1988), and that false statements “are not
protected by the First Amendment in the same manner as truthful
, 456 U.S.
, 60–61 (1982). See also, e.g., Virginia Bd. of
, at 771 (“Untruthful speech,
commercial or otherwise, has never been protected for its own
, 441 U.S.
, 171 (1979) (“Spreading false information in and of
itself carries no First Amendment credentials”);
, at 340 (“[T]here is no
constitutional value in false statements of fact”);
, 379 U.S.
, 75 (1964) (“[T]he knowingly false statement and the
false statement made with reckless disregard of the truth, do not
enjoy constitutional protection”).
These quotations all derive from cases
discussing def-amation, fraud, or some other legally cognizable
harm associated with a false statement, such as an invasion of
privacy or the costs of vexatious litigation. See Brief for United
States 18–19. In those decisions the falsity of the speech at
issue was not irrelevant to our analysis, but neither was it
determinative. The Court has never endorsed the categorical rule
the Government advances: that false statements receive no First
Amendment protection. Our prior decisions have not confronted a
measure, like the Stolen Valor Act, that targets falsity and
Even when considering some instances of
defamation and fraud, moreover, the Court has been careful to
instruct that falsity alone may not suffice to bring the speech
outside the First Amendment. The statement must be a knowing or
reckless falsehood. See Sullivan
, at 280
(prohibiting recovery of damages for a defamatory falsehood made
about a public official unless the statement was made “with
knowledge that it was false or with reckless disregard of whether
it was false or not”); see also Garrison
, at 73 (“[E]ven when the utterance is false, the
great principles of the Constitution which secure freedom of
expression . . . preclude attaching adverse consequences
to any except the knowing or reckless falsehood”);
Illinois ex rel. Madigan
v. Telemarketing Associates,
, 538 U.S.
, 620 (2003) (“False statement alone does not subject
a fundraiser to fraud liability”).
The Government thus seeks to use this principle
for a new purpose. It seeks to convert a rule that limits liability
even in defamation cases where the law permits recovery for
tortious wrongs into a rule that expands liability in a different,
far greater realm of discourse and expression. That inverts the
rationale for the exception. The requirements of a knowing
falsehood or reckless disregard for the truth as the condition for
recovery in certain defamation cases exists to allow more speech,
not less. A rule designed to tolerate certain speech ought not
blossom to become a rationale for a rule restricting it.
The Government then gives three examples of
regulations on false speech that courts generally have found
per-missible: first, the criminal prohibition of a false statement
made to a Government official, 18 U. S. C. §1001;
second, laws punishing perjury; and third, prohibi-tions on the
false representation that one is speaking as a Government official
or on behalf of the Government, see, e.g.,
§709. These restrictions, however, do not establish a
principle that all proscriptions of false statements are exempt
from exacting First Amendment scrutiny.
The federal statute prohibiting false statements
to Government officials punishes “whoever, in any matter
within the jurisdiction of the executive, legislative, or judicial
branch of the Government . . . makes any mate-rially
false, fictitious, or fraudulent statement or
repre-sentation.” §1001. Section 1001’s
prohibition on false statements made to Government officials, in
communications concerning official matters, does not lead to the
broader proposition that false statements are unprotected when made
to any person, at any time, in any context.
The same point can be made about what the Court
has confirmed is the “unquestioned constitutionality of
perjury statutes,” both the federal statute, §1623, and
its state-law equivalents. United States
, 54 (1978). See also Konigsberg
v. State Bar of
, 366 U.S.
, 51, n. 10 (1961). It is not simply because perjured
statements are false that they lack First Amendment protection.
Perjured testimony “is at war with justice” because it
can cause a court to render a “judgment not resting on
truth.” In re Michael
, 326 U.S.
, 227 (1945). Perjury undermines the function and province
of the law and threatens the integrity of judgments that are the
basis of the legal system. See United States
, 507 U.S.
, 97 (1993) (“To uphold the integrity of our trial
system . . . the constitutionality of perjury statutes is
unquestioned”). Unlike speech in other contexts, testi-mony
under oath has the formality and gravity necessary to remind the
witness that his or her statements will be the basis for official
governmental action, action that often affects the rights and
liberties of others. Sworn testimony is quite distinct from lies
not spoken under oath and sim-ply intended to puff up oneself.
Statutes that prohibit falsely representing that
one is speaking on behalf of the Government, or that prohibit
im-personating a Government officer, also protect the integrity of
Government processes, quite apart from merely restricting false
speech. Title 18 U. S. C. §912, for ex-ample,
prohibits impersonating an officer or employee of the United
States. Even if that statute may not require proving an
“actual financial or property loss” resulting from the
deception, the statute is itself confined to “maintain[ing]
the general good repute and dignity of . . . government
. . . service itself.” United States
, 318 U.S.
, 704 (1943) (internal quotation marks omitted). The same
can be said for prohibitions on the unauthorized use of the names
of federal agencies such as the Federal Bureau of Investigation in
a manner calculated to convey that the communication is approved,
see §709, or using words such as “Federal” or
“United States” in the collection of private debts in
order to convey that the communication has official authorization,
see §712. These examples, to the extent that they implicate
fraud or speech integral to criminal conduct, are inapplicable
As our law and tradition show, then, there are
instances in which the falsity of speech bears upon whether it is
protected. Some false speech may be prohibited even if analogous
true speech could not be. This opinion does not imply that any of
these targeted prohibitions are somehow vulnerable. But it also
rejects the notion that false speech should be in a general
category that is presumptively unprotected.
Although the First Amendment stands against any
“freewheeling authority to declare new categories of speech
outside the scope of the First Amendment,” Stevens
559 U. S., at ___ (slip op., at 9), the Court has acknowledged
that perhaps there exist “some categories of speech that have
been historically unprotected . . . but have not yet been
specifically identified or discussed . . . in our case
. Before exempting a category of speech from
the normal prohibition on content-based re-strictions, however, the
Court must be presented with “per-suasive evidence that a
novel restriction on content is part of a long (if heretofore
unrecognized) tradition of proscription,” Brown
Entertainment Merchants Assn.,
564 U. S. ___, ___
(2011) (slip op., at 4). The Government has not demonstrated that
false statements generally should constitute a new category of
unprotected speech on this basis.
The probable, and adverse, effect of the Act
on free- dom of expression illustrates, in a fundamental way, the
reasons for the Law’s distrust of content-based speech
The Act by its plain terms applies to a false
statement made at any time, in any place, to any person. It can be
assumed that it would not apply to, say, a theatrical performance.
v. Lorain Journal Co.
, 497 U.S.
, 20 (1990) (recognizing that some statements nominally
purporting to contain false facts in reality “cannot
reasonably be interpreted as stating actual facts about an
individual” (internal quotation marks and brackets omitted)).
Still, the sweeping, quite unprecedented reach of the statute puts
it in conflict with the First Amendment. Here the lie was made in a
public meeting, but the statute would apply with equal force to
personal, whispered conversations within a home. The statute seeks
to control and suppress all false statements on this one subject in
almost limitless times and settings. And it does so en-tirely
without regard to whether the lie was made for the purpose of
material gain. See San Francisco Arts & Athletics, Inc.
v. United States Olympic Comm.
, 539–540 (1987) (prohibiting a nonprofit
corporation from exploiting the “commercial magnetism”
of the word “Olym-pic” when organizing an athletic
competition (internal quotation marks omitted)).
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. That governmental power has no clear limiting
principle. Our constitutional tradition stands against the idea
that we need Oceania’s Ministry of Truth. See G. Orwell,
Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to
be sustained, there could be an endless list of subjects the
National Government or the States could single out. Where false
claims are made to effect a fraud or secure moneys or other
valuable considerations, say offers of employment, it is well
established that the Government may restrict speech without
affronting the First Amendment. See, e.g., Virginia Bd. of
, 425 U. S., at 771 (noting that fraudulent speech
generally falls outside the protections of the First Amendment).
But the Stolen Valor Act is not so limited in its reach. Were the
Court to hold that the interest in truthful discourse alone is
sufficient to sustain a ban on speech, absent any evidence that the
speech was used to gain a material advantage, it would give
government a broad censorial power unprecedented in this
Court’s cases or in our constitutional tradition. The mere
potential for the exercise of that power casts a chill, a chill the
First Amendment cannot permit if free speech, thought, and
discourse are to remain a foundation of our freedom.
The previous discussion suffices to show that
the Act conflicts with free speech principles. But even when
examined within its own narrow sphere of operation, the Act cannot
survive. In assessing content-based restrictions on protected
speech, the Court has not adopted a free-wheeling approach, see
, 559 U. S., at ___ (slip op., at 7) (“The
First Amendment’s guarantee of free speech does not extend
only to categories of speech that survive an ad hoc balancing
of relative social costs and benefits”), but rather has
applied the “most exacting scrutiny.” Turner
Broadcasting System, Inc.
, 512 U.S.
, 642 (1994). Although the objectives the Government seeks
to further by the statute are not without significance, the Court
must, and now does, find the Act does not satisfy exacting
The Government is correct when it states
military medals “serve the important public function of
recognizing and expressing gratitude for acts of heroism and
sacrifice in military service,” and also
“ ‘foste[r] morale, mission accomplishment and
esprit de corps’ among service members.” Brief for
United States 37, 38. General George Washington observed that an
award for valor would “cherish a virtuous ambition in
. . . soldiers, as well as foster and encourage every
species of military merit.” General Orders of George
Washington Issued at Newburgh on the Hudson, 1782–1783 (Aug.
7, 1782), p. 30 (E. Boynton ed. 1883). Time has not diminished
this idea. In periods of war and peace alike public recognition of
valor and noble sacrifice by men and women in uniform reinforces
the pride and national resolve that the military relies upon to
fulfill its mission.
These interests are related to the integrity of
the military honors system in general, and the Congressional Medal
of Honor in particular. Although millions have served with brave
resolve, the Medal, which is the highest military award for valor
against an enemy force, has been given just 3,476 times.
Established in 1861, the Medal is reserved for those who have
distinguished themselves “conspicuously by gallantry and
intrepidity at the risk of his life above and beyond the call of
duty.” 10 U. S. C. §§3741 (Army), 6241
(Navy and Marine Corps), 8741 (Air Force), 14 U. S. C.
§491 (Coast Guard). The stories of those who earned the Medal
inspire and fascinate, from Dakota Meyer who in 2009 drove five
times into the midst of a Taliban ambush to save 36 lives, see
Curtis, President Obama Awards Medal of Honor to Dakota Meyer, The
White House Blog (Sept. 15, 2011) (all Internet materials as
visited June 25, 2012, and available in Clerk of Court’s case
file); to Desmond Doss who served as an army medic on Okinawa and
on June 5, 1945, rescued 75 fellow soldiers, and who, after being
wounded, gave up his own place on a stretcher so others could be
taken to safety, see America’s Heroes 88–90 (J.
Willbanks ed. 2011); to William Carney who sustained multiple
gunshot wounds to the head, chest, legs, and arm, and yet carried
the flag to ensure it did not touch the ground during the Union
army’s assault on Fort Wagner in July 1863, id.,
44–45. The rare acts of courage the Medal celebrates led
President Truman to say he would “rather have that medal
round my neck than . . . be president of the United
States.” Truman Gives No. 1 Army Medal to 15 Heroes,
Oct. 13, 1945, p. 5. The
Government’s interest in protecting the integrity of the
Medal of Honor is beyond question.
But to recite the Government’s compelling
interests is not to end the matter. The First Amendment requires
that the Government’s chosen restriction on the speech at
issue be “actually necessary” to achieve its interest.
En-tertainment Merchants Assn.
, 564 U. S., at ___ (slip
op., at 12). There must be a direct causal link between the
restriction imposed and the injury to be prevented. See
. The link between the Government’s interest in
protecting the integrity of the military honors system and the
Act’s restriction on the false claims of liars like
respondent has not been shown. Although appearing to concede that
“an isolated misrepresentation by itself would not tarnish
the meaning of military honors,” the Government asserts it is
“common sense that false representations have the tendency to
dilute the value and meaning of military awards,” Brief for
United States 49, 54. It must be acknowledged that when a pretender
claims the Medal to be his own, the lie might harm the Government
by demeaning the high purpose of the award, diminishing the honor
it confirms, and creating the appearance that the Medal is awarded
more often than is true. Furthermore, the lie may offend the true
holders of the Medal. From one perspective it in-sults their
bravery and high principles when falsehood puts them in the
unworthy company of a pretender.
Yet these interests do not satisfy the
Government’s heavy burden when it seeks to regulate protected
speech. See United States
v. Playboy Entertainment Group,
, 529 U.S.
, 818 (2000). The Government points to no evidence to
support its claim that the public’s general perception of
military awards is diluted by false claims such as those made by
Alvarez. Cf. Entertainment Merchants Assn., supra,
___–___ (slip op., at 12–13) (analyzing and rejecting
the findings of research psychologists demonstrating the causal
link between violent video games and harmful effects on children).
As one of the Government’s amici
notes “there is
nothing that charlatans such as Xavier Alvarez can do to stain [the
Medal winners’] honor.” Brief for Veterans of Foreign
Wars of the United States et al. as Amici Curiae
This general proposition is sound, even if true holders of the
Medal might experience anger and frustration.
The lack of a causal link between the
Government’s stated interest and the Act is not the only way
in which the Act is not actually necessary to achieve the
Government’s stated interest. The Government has not shown,
and cannot show, why counterspeech would not suffice to achieve its
interest. The facts of this case indicate that the dynamics of free
speech, of counterspeech, of refutation, can overcome the lie.
Respondent lied at a public meeting. Even before the FBI began
investigating him for his false statements “Alvarez was
perceived as a phony,” 617 F. 3d, at 1211. Once the lie
was made public, he was ridiculed online, see Brief for Respondent
3, his actions were reported in the press, see Ortega, Alvarez
Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin
(Sept. 27, 2007), and a fellow board member called for his
resignation, see, e.g.,
Bigham, Water District Rep Requests
Alvarez Resign in Wake of False Medal Claim, San Bernardino Cty.,
CA, The Sun (May 21, 2008). There is good reason to believe that a
similar fate would befall other false claimants. See Brief for
Reporters Committee for Freedom of the Press et al. as Amici
30–33 (listing numerous examples of public
exposure of false claimants). Indeed, the outrage and contempt
expressed for respondent’s lies can serve to reawaken and
reinforce the public’s respect for the Medal, its recipients,
and its high purpose. The acclaim that recipients of the
Congressional Medal of Honor receive also casts doubt on the
proposition that the public will be misled by the claims of
charlatans or become cynical of those whose heroic deeds earned
them the Medal by right. See, e.g.,
Well Done, Washington
Feb. 5, 1943, p. 8 (reporting on Pres-ident
Roosevelt’s awarding the Congressional Medal of Honor to Maj.
Gen. Alexander Vandegrift); Devroy, Medal of Honor Given to 2
Killed in Somalia, Washington Post,
May 24, 1994, p. A6
(reporting on President Clinton’s awarding the Congressional
Medal of Honor to two special forces soldiers killed during
operations in Somalia).
The remedy for speech that is false is speech
that is true. 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. See
, 274 U.S.
, 377 (1927) (Brandeis, J., concurring) (“If there be
time to expose through discussion the falsehood and fallacies, to
avert the evil by the processes of education, the remedy to be
ap-plied is more speech, not enforced silence”). The theory
of our Constitution is “that the best test of truth is the
power of the thought to get itself accepted in the competition of
the market,” Abrams
v. United States
, 250 U.S.
, 630 (1919) (Holmes, J., dissenting). The First Amendment
itself ensures the right to respond to speech we do not like, and
for good reason. Freedom of speech and thought flows not from the
beneficence of the state but from the inalienable rights of the
person. And suppression of speech by the government can make
exposure of falsity more difficult, not less so. Society has the
right and civic duty to engage in open, dynamic, rational
discourse. These ends are not well served when the government seeks
to orchestrate public discussion through content-based
Expressing its concern that counterspeech is
insuf- ficient, the Government responds that because “some
military records have been lost . . . some claims [are]
un-verifiable,” Brief for United States 50. This proves
little, however; for without verifiable records, successful
criminal prosecution under the Act would be more difficult in any
event. So, in cases where public refutation will not serve the
Government’s interest, the Act will not either. In addition,
the Government claims that “many [false claims] will remain
at 55. The Government provides no
support for the contention. And in any event, in order to show that
public refutation is not an adequate alternative, the Government
must demonstrate that unchallenged claims undermine the
public’s perception of the military and the integrity of its
awards system. This showing has not been made.
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 tradi-tion. 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.
In addition, when the Government seeks to
regulate protected speech, the restriction must be the “least
restrictive means among available, effective alternatives.”
, 542 U. S., at 666. There is, however, at
least one less speech-restrictive means by which the Government
could likely protect the integrity of the military awards system. A
Government-created database could list Congressional Medal of Honor
winners. Were a database accessible through the Internet, it would
be easy to verify and expose false claims. It appears some private
individuals have already created databases similar to this, see
Brief for Respondent 25, and at least one data- base of past
winners is online and fully searchable, see Congressional Medal of
Honor Society, Full Archive,
http://www.cmohs.org/recipient-archive.php. The Solicitor General
responds that although Congress and the Department of Defense
investigated the feasibility of establishing a database in 2008,
the Government “concluded that such a database would be
impracticable and insuf-ficiently comprehensive.” Brief for
United States 55. Without more explanation, it is difficult to
assess the Gov-ernment’s claim, especially when at least one
database of Congressional Medal of Honor winners already
The Government may have responses to some of
these criticisms, but there has been no clear showing of the
necessity of the statute, the necessity required by exacting
* * *
The Nation well knows that one of the costs of
the First Amendment is that it protects the speech we detest as
well as the speech we embrace. Though few might find
respondent’s statements anything but contemptible, his right
to make those statements is protected by the Constitution’s
guarantee of freedom of speech and expression. The Stolen Valor Act
infringes upon speech protected by the First Amendment.
The judgment of the Court of Appeals is
It is so ordered.