Thursday, June 28, 2012

Commentary on the Court's Decision Finding the Stolen Valor Act Unconstitutional

It is important to honor those who served our country and received medals.  It is especially important for us to recognize those few who received the Congressional Medal of Honor.  These individuals are our heroes and there are not enough words to say thanks to them. It is also important to note that those who did not receive these medals and who lie about having received them have committed despicable acts. 

But the question here is whether these acts of lying are criminal.

Congress thought it should be criminal.  The Supreme Court in Alverez says otherwise, in light of the First Amendment.  The opinion and a summary of that decision are here. What does this case mean for other criminal cases, especially white collar ones -

The Court is clear to distinguish this decision from lies like those occurring when one violates the false statement statute (s 1001) or perjury (s 1623).  But could other statutes be implicated by the decision?  And can other conduct be implicated?  It would seem so.  

This opinion, although not stated, reminds us that it is important for criminal defense counsel to remember the First Amendment when evaluating a case.  Under the test used by the plurality in Alvarez, if the First Amendment is implicated one needs to ask whether there is "a direct causal link between the restriction imposed and the injury to be prevented."  If the government argues that a statement is false and therefore it is criminal, it would seem that under this decision that would be insufficient.  But if it were a false statement under oath, that would be different because it affects the "rights and liberties of others."

One also needs to ask, per the concurrence, whether there is a less restrictive way to achieve the government's goal.


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