Epstein on United States v. Alvarez

The Supreme Court’s Other Bogus Ruling
Richard A. Epstein
Defining Ideas
July 10, 2012

The nonstop debate over the constitutionality of the Patient Protection and Affordable Care Act has regrettably drawn attention away from the Supreme Court’s 6–3 decision in United States v. Alvarez, which struck down the 2005 Stolen Valor Act (SVA) on First Amendment grounds. The operative provision of that statute reads:

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.

The statute increases the maximum penalty for the offense to one year when the misrepresentation applies to the Congressional Medal of Honor.

The SVA was not passed on a whim. As Justice Samuel Alito noted in his dissent, in the run up to the bill’s passage, many individuals had falsely claimed to have received a Congressional Medal of Honor, listing that accolade in public places like the Veterans History Project and Who’s Who. The passage of the SVA was in response to a clear breakdown in the set of social norms against making false claims for personal advantage.

A quick look at the statute reveals some modest flaws in its drafting. Quite properly, the SVA applies only to false claims of receiving a military honor. But the statute does not require the claim made to be knowingly false, which is surely correct for criminal prosecutions. The omission in this case, however, counts for little, because it is hard to imagine that any person could make an innocent mistake about whether he or she has received the medal in question.

Faculty: 
Richard A. Epstein