Can the government proscribe the right to lie about one’s own past, particularly where there is no individualized harm? The U.S. Court of Appeals for the Ninth Circuit recently said “no,” declaring the Stolen Valor Act – a federal law criminalizing lies about military honors – an unconstitutional restriction on free speech under the First Amendment.

One of the highest honors an American military service member can achieve is the Congressional Medal of Honor, an award recognizing those who risked their lives beyond the call of duty. For decades, laws have prohibited the sale and use of the medal, including the imposition of criminal penalties, in order to preserve the prestige for its deserving recipients. In 2005, Congress passed the Stolen Valor Act of 2005, stating that “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.”

In July 2007, Xavier Alvarez, a member of a local water board, stated at a public meeting: “I’m a retired Marine of 25 years ... I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” Unfortunately Alvarez had never spent a single day as a Marine or in active military service. Instead, Alvarez had a reputation as a liar, also claiming to have played for the Detroit Red Wings and having been secretly married to a Mexican starlet. After the FBI obtained a recording of the meeting, Alvarez was charged with violating the Stolen Valor Act, to which he pled guilty, but challenged the law as unconstitutional.

In a 2-1 decision, the Ninth Circuit held that the law was a facially unconstitutional content-based restriction on speech, which could not pass strict scrutiny, and did not fall within one of the narrowly limited traditionally unprotected classes of speech (i.e., libel, obscenity and fighting words). While the government and dissenting judge argued that the Supreme Court’s statement in the influential defamation case Gertz v. Welch that “the erroneous statement of fact is not worthy of constitutional protection,” the Ninth Circuit panel’s majority disagreed, finding instead that Gertz stood for the idea that “the First Amendment requires that we protect some falsehood in order to protect speech that matters.”

The Ninth Circuit failed to find that false factual speech fell within the historical classes of speech that can be prohibited without constitutional problem. For example, it did not create a “clear and present danger” of imminent harm. It did not constitute fraud or even perjury, because without context, Alvarez was simply prosecuted for saying something that was not true, failing to cause any harm to anyone else. Finally, it did not fall within the defamation context, because such jurisprudence requires proof that the speaker make a defamatory statement with some degree of “fault,” whereas the Act punished even the innocent violator. Moreover, statements about matters of public concern, can only be punished by showing some degree of malice, rather than simple negligence. Accordingly, the court found that because the Stolen Valor Act failed to have any “scienter” element, the statute raised serious constitutional concerns because the First Amendment prohibits punishing negligent speech about matters of public concern.

While the Ninth Circuit did not recognize a constitutional right to lie, such prohibitions on speech, even lies, must still be subject to strict scrutiny. The court noted that adopting the government’s view would “turn First Amendment analysis on its head,” wrongly placing the burden on the speaker to prove his false statement should be protected from criminal prosecution. The court noted the impossibility of distinguishing between the relative value of lies about military decoration from the relative value of any other false statement of fact. In the end, it declared the Act facially invalid under the First Amendment as it was “applied to make a criminal out of a man who was proven to be nothing more than a liar, without more.”