In United States v. Alvarez
(No. 11-210), the Supreme Court today held that the Stolen Valor Act (18 U.S.C. Sections 704 (b), (c)) infringes upon speech protected by the First Amendment.
The Court's majority opinion, authored by Justice Kennedy and joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor, holds under an "exacting scrutiny" test that falsity and nothing more does not fall under recognized exceptions to First Amendment protections and has no clear limiting principle (such as lying for material gain). Justices Breyer and Kagan would hold that the Act works disproportionate constitutional harm to the First Amendment and therefore fails intermediate scrutiny. Justices Alito, Scalia, and Thomas were in the dissent. The Court's decision leaves open the possibility for the Act to survive review if amended to apply more narrowly.