January 21, 2012

Partners Julie M. Carpenter, Katherine A. Fallow and Paul M. Smith and Associate Christopher Deal recently published the January 2012 article for the “Courtside” column that appears regularly in the American Bar Association’s Communications Lawyer.  The article discusses United States v. Alvarez, a First Amendment case on the Supreme Court’s docket this Term.  The case involves a challenge to the Stolen Valor Act, a federal statute that makes it a crime to “falsely represent…verbally or in writing, to have been awarded” any congressionally authorized military award or medal.  In 2007, Xavier Alvarez, a newly seated director of a California water district board, was indicted for violating the statute after he falsely claimed to have been awarded the Congressional Medal of Honor, while introducing himself to a neighboring board at a public meeting.  In reviewing the District Court’s denial of Mr. Alvarez’ motion to dismiss the indictment, a divided panel of the Ninth Circuit struck down the statute, holding that merely false factual speech is entitled to First Amendment protection.  The full Ninth Circuit denied rehearing en banc, over the vote of seven dissenters.  The article’s authors comment that, in its Petition for Certiorari, the United States then “took a slightly different tack.”  While conceding that factually false statements as a class have not been recognized as unprotected speech, the government asserted that knowingly false statements of fact may be subject to content-based restrictions “supported by a government interest as long as the restrictions provide adequate breathing space for fully protected speech.”  Argument in the case is scheduled for February 22.