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Alvarez Decision - June 28, 2012

Posted By Barbara Jones, FTRF Executive Director, Thursday, June 28, 2012
Updated: Friday, July 27, 2012

FTRF Counsel Theresa Chmara’s provides this concise summary of the meaning of the SCOTUS decision on Alvarez, June 28, 2012. The Freedom to Read Foundation joined an amicus brief that was, in my view, brilliantly written because this was a difficult case.  We won one! 


The Supreme Court held today that the Stolen Valor Act is unconstitutional.  The Stolen Valor Act was a federal statute that criminalized false statements about receiving military honors. The case arose when Xavier Alvarez falsely claimed to be a recipient of the Congressional Medal of Honor.  The Freedom to Read Foundation joined an amicus brief arguing that the Act violated the First Amendment because all speech is presumptively protected by the First Amendment against content-based regulation, subject only to specific traditional historic exceptions and that false speech does not fit within any of these historical exceptions.  Six justices agreed that the Act was unconstitutional.  Justice Kennedy wrote a plurality opinion in which he was joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor holding that some false speech may be criminalized but his opinion "rejects the notion that false speech should be in a general category that is presumptively unprotected.”  Justice Kennedy summed up the reasoning for his opinion: 


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.


Justice Breyer, joined by Justice Kagan, concurred in the judgment but wrote separately to argue that the Act should be held unconstitutional because "the statute works First Amendment harm, while the Govern­ment can achieve its legitimate objectives in less restric­tive ways.”  Justices Alito, Scalia and Thomas dissented.

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