In case you missed it, the Supreme Court struck down the so-called “Stolen Valor” act in UNITED STATES v. ALVAREZ. We discussed this case briefly earlier on this blog.

The text of the ruling can be found here. Obviously the issues concern the threat to free speech, the value of lying in relation to what it is that makes free speech valuable in the first place, and the nature of the harm of this particular type of lie. In this post, I’d like to briefly summarize the rationale for the ruling and the dissent. Then I’d like to raise for discussion the way the “harm” of stolen valor is treated by the Court.

SUMMARY:

Kennedy, Roberts, Ginsburg, and Sotomayor argue (as far as I can tell from my first reading) basically as so: whether speech is a lie is orthogonal to whether it is protected; lying about medals doesn’t fall within one of the traditional categories of limited speech (e.g., incitement, fighting words, etc.); lying about medals doesn’t consistently represent a material harm; finally, there are other ways of maintaining the honor of true recipients: counter-speech/denunciation.

Kennedy and Kagan, in a concurring opinion, are more sympathetic with the law but argue that it is too sweeping. It applies to all medals. It applies to lies one might tell one’s grandchild. Many such lies don’t jeopardize any interest enough to warrant limiting speech. A narrower law might past muster for them.

Alito, Scalia, and Thomas dissented. They argued that the lies involved here concern obvious, viewpoint-neutral matters of fact known to the speaker, and the Act specifically excludes unknowingly-spoken falsehoods and falsehoods uttered in dramatic performance or satire, etc. So the Act is limited enough. Second, Alito points to a real proliferation of false claims (spoken and in print, among private persons and media) about winning medals. So this sort of thing is a real problem. Third, “counter-speech” is not practicable because the military claims it cannot publish a comprehensive list of all awardees. Finally, stories in the media concerning stolen valor will tend to “create skepticism about the entire award system.” Finally, in general they see lies as being less protected by the Constitution than do the other Justices.

WHAT’S THE HARM?

Turning to the question of harm, all sides acknowledge that lying about receipt of medals is somehow bad for a) actual recipients and b) the medal system. As we have seen, the Justices disagreed about the legally permissible remedy for this. Although Kennedy’s ruling bends over backwards to stress the importance of maintaining the prestige surrounding military medals, one cannot help but to detect a suspicion in Alito’s dissent that the Court isn’t valuing honor as much as they should. Here’s the most passionate passage in the entire ruling:

It is well recognized in trademark law that the prolifera­tion of cheap imitations of luxury goods blurs the “‘signal’ given out by the purchasers of the originals.” […] In much the same way, the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are, and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps. Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country’s top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags.

I was surprised that the dissent didn’t bring up obscenity. After all, obscenity is still a category of content that may be prohibited, even according to Kennedy:

[C]ontent-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.” Among these categories are advocacy intended, and likely, to incite imminent lawless action, obscenity, defamation,  speech integral to criminal conduct, so-called “fighting words,” child pornography, true threats, and speech presenting some grave and imminent threat the government has the power to prevent. 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. (References omitted.)

It would have been fun to hear the dissent talk about the oddness of countenancing limitations on speech to prevent obscenity, but not to prevent jeopardizing a system of honor. The argument can be made that the Court seems to care about money and “decency,” but not honor.

In sum, I think this case raises excellent questions about how and whether a liberal society can value honor, and what a liberal society can recognize as true “harm.” As Laurie Johnson (an honorethics.org contributor) has suggested in Thomas Hobbes: Turning Point For Honor, liberalism historically puts a premium on material well-being (life, property, health, etc.), and Hobbes had to denigrate honor precisely because it devalued such things. As I would put it, liberalism sees these material well-being as the “good,” and the “right”—which liberalism sees in terms of justice—is about making sure we get these goods in the correct way. Honor really isn’t concerned about regulating such material goods, but rather is about regulating the pursuit and distribution of prestige. If that’s right, then the more purely liberal the laws of a society, the less likely those laws are to recognize injuries to honor and distortions of prestige rankings as intrinsically important. So the prestige of a handbag is important because the wrong people will make money off of phony handbag, whereas the material loss of stolen military honor is indirect at best.

That all makes sense to me. What doesn’t make sense is limiting free speech for the sake of “decency” when that sort of concern is at least as illiberal as prestige. Granted, indecency laws are rarely enforced (especially when it comes to pornography). Still, its undeniable pedigree is something Kennedy cannot ignore, and its presence undermines his more liberal rationale for striking down Stolen Valor.