United States v. Alvarez, 567 U.S. 709 (2012) (2024)

NOTICE: This opinion is subject toformal revision before publication in the preliminary print of theUnited States Reports. Readers are requested to notify the Reporterof Decisions, Supreme Court of the United States, Washington,D.C. 20543, of any typographical or other formal errors, inorder that corrections may be made before the preliminary printgoes to press.SUPREME COURT OF THE UNITED STATES_________________No. 11–210_________________UNITED STATES, PETITIONER v. XAVIERALVAREZon writ of certiorari to the united statescourt of appeals for the ninth circuit[June 28, 2012]Justice Kennedy announced the judgment of theCourt and delivered an opinion, in which The Chief Justice, JusticeGinsburg, and Justice Sotomayor join.Lying was his habit. Xavier Alvarez, therespondent here, lied when he said that he played hockey for theDetroit Red Wings and that he once married a starlet from Mexico.But when he lied in announcing he held the Con-gressional Medal ofHonor, respondent ventured onto new ground; for that lie violates afederal criminal statute, the Stolen Valor Act of 2005. 18U.S.C. §704.In 2007, respondent attended his first publicmeeting as a board member of the Three Valley Water District Board.The board is a governmental entity with headquarters in Claremont,California. He introduced himself as follows: “I’m a retired marineof 25 years. I retired in the year 2001. Back in 1987, I wasawarded the Congressional Medal of Honor. I got wounded many timesby the same guy.” 617 F.3d 1198, 1201–1202 (CA9 2010). None of thiswas true. For all the record shows, respondent’s statements werebut a pathetic attempt to gain respect that eluded him. Thestatements do not seem to have been made to secure employment orfinancial benefits or admission to privileges reserved for thosewho had earned the Medal.Respondent was indicted under the Stolen ValorAct for lying about the Congressional Medal of Honor at themeeting. The United States District Court for the Central Districtof California rejected his claim that the statute is invalid underthe First Amendment. Respondent pleaded guilty to one count,reserving the right to appeal on his First Amendment claim. TheUnited States Court of Appeals for the Ninth Circuit, in a decisionby a divided panel, found the Act invalid under the First Amendmentand reversed the conviction. Id., at 1218. With furtheropinions on the issue, and over a dissent by seven judges,rehearing en banc was denied. 638 F.3d 666 (2011). This Courtgranted certiorari. 565 U.S. ___ (2011).After certiorari was granted, and in anunrelated case, the United States Court of Appeals for the TenthCircuit, also in a decision by a divided panel, found the Actconstitutional. United States v. Strandlof, 667 F.3d1146 (2012). So there is now a conflict in the Courts of Appeals onthe question of the Act’s validity.This is the second case in two Terms requiringthe Court to consider speech that can disparage, or attempt tosteal, honor that belongs to those who fought for this Nation inbattle. See Snyder v. Phelps, 562 U.S. ___(2011) (hateful protests directed at the funeral of a servicemanwho died in Iraq). Here the statement that the speaker held theMedal was an intended, undoubted lie.It is right and proper that Congress, over acentury ago, established an award so the Nation can hold in itshigh- est respect and esteem those who, in the course of carryingout the “supreme and noble duty of contributing to the defense ofthe rights and honor of the nation,” Selective Draft LawCases, 245 U.S.366, 390(1918), have acted with extraordinary honor. And it should beuncontested that this is a legitimate Government objective, indeeda most valued national aspiration and purpose. This does not endthe inquiry, however. Fundamental constitutional principles requirethat laws enacted to honor the brave must be consistent with theprecepts of the Constitution for which they fought.The Government contends the criminal prohibitionis a proper means to further its purpose in creating and awardingthe Medal. When content-based speech regulation is in question,however, exacting scrutiny is required. Statutes suppressing orrestricting speech must be judged by the sometimes inconvenientprinciples of the First Amendment. By this measure, the statutoryprovisions under which respondent was convicted must be heldinvalid, and his conviction must be set aside.IRespondent’s claim to hold the CongressionalMedal of Honor was false. There is no room to argue aboutin-terpretation or shades of meaning. On this premise, respondentviolated §704(b); and, because the lie concerned the CongressionalMedal of Honor, he was subject to an enhanced penalty undersubsection (c). Those statutory provisions are as follows:“(b) False Claims About Receipt of MilitaryDecorations or Medals.––Whoever falsely represents himself orherself, verbally or in writing, to have been awarded anydecoration or medal authorized by Congress for the Armed Forces ofthe United States ... shall be fined under this title,imprisoned not more than six months, or both.“(c) Enhanced Penalty for Offenses InvolvingCongressional Medal of Honor.––“(1) In General.––If a decoration or medalinvolved in an offense under subsection (a) or (b) is aCongressional Medal of Honor, in lieu of the punishment provided inthat subsection, the offender shall be fined under this title,imprisoned not more than 1 year, or both.”Respondent challenges the statute as acontent-based suppression of pure speech, speech not falling withinany of the few categories of expression where content-basedregulation is permissible. The Government defends the statute asnecessary to preserve the integrity and purpose of the Medal, anintegrity and purpose it contends are compromised and frustrated bythe false statements the statute prohibits. It argues that falsestatements “have no First Amendment value in themselves,” and thus“are protected only to the extent needed to avoid chilling fullyprotected speech.” Brief for United States 18, 20. Al-though thestatute covers respondent’s speech, the Government argues that itleaves breathing room for pro-tected speech, for example speechwhich might criticize the idea of the Medal or the importance ofthe military. The Government’s arguments cannot suffice to save thestatute.II“[A]s a general matter, the First Amendmentmeans that government has no power to restrict expression becauseof its message, its ideas, its subject matter, or its content.”Ashcroft v. American Civil Liberties Union, 535 U.S.564, 573 (2002) (internal quotation marks omitted). As aresult, the Constitution “demands that content-based restrictionson speech be presumed invalid ... and that theGovernment bear the burden of showing their constitutionality.”Ashcroft v. American Civil Liberties Union, 542 U.S.656, 660 (2004).In light of the substantial and expansivethreats to free expression posed by content-based restrictions,this Court has rejected as “startling and dangerous” a“free-floating test for First Amendment coverage ...[based on] an adhoc balancing of relative social costs andbenefits.” United States v. Stevens, 559 U.S.___, ___ (2010) (slip op., at 7). Instead, content-basedrestrictions on speech have been permitted, as a general matter,only when confined to the few “‘historic and traditionalcategories [of expression] long familiar to the bar,’”Id., at ___ (slip op., at 5) (quoting Simon &Schuster, Inc. v. Members of N. Y. State Crime VictimsBd., 502 U.S.105, 127 (1991) (Kennedy, J., concurring in judgment)). Amongthese categories are advocacy intended, and likely, to inciteimminent lawless action, see Brandenburg v. Ohio,395 U.S.444 (1969) (per curiam); obscenity, see, e.g.,Miller v. California, 413 U.S.15 (1973); defamation, see, e.g., New York Times Co. v.Sullivan, 376 U.S.254 (1964) (providing substantial protection for speech aboutpublic figures); Gertz v. Robert Welch, Inc.,418 U.S.323 (1974) (imposing some limits on liability for defaming aprivate figure); speech integral to criminal conduct, see,e.g., Giboney v. Empire Storage & Ice Co.,336 U.S.490 (1949); so-called “fighting words,” see Chaplinskyv. New Hampshire, 315 U.S.568 (1942); child p*rnography, see New York v.Ferber, 458 U.S.747 (1982); fraud, see Virginia Bd. of Pharmacy v.Virginia Citizens Consumer Council, Inc., 425 U.S.748, 771 (1976); true threats, see Watts v. UnitedStates, 394 U.S.705 (1969) (per curiam); and speech presenting somegrave and imminent threat the government has the power to prevent,see Near v. Minnesota ex rel. Olson, 283 U.S.697, 716 (1931), although a restriction under the last categoryis most difficult to sustain, see New York Times Co. v.United States, 403 U.S.713 (1971) (per curiam). These categories have ahistorical foundation in the Court’s free speech tradition. Thevast realm of free speech and thought always protected in ourtradition can still thrive, and even be furthered, by adherence tothose categories and rules.Absent from those few categories where the lawallows content-based regulation of speech is any general exceptionto the First Amendment for false statements. This comports with thecommon understanding that some false statements are inevitable ifthere is to be an open and vigorous expression of views in publicand private con-versation, expression the First Amendment seeks toguarantee. See Sullivan, supra, at 271 (“Th[e] erroneousstatement is inevitable in free debate”).The Government disagrees with this proposition.It cites language from some of this Court’s precedents to supportit* contention that false statements have no value and hence noFirst Amendment protection. See also Brief for Eugene Volokh et al.as Amici Curiae 2–11. These isolated statements in someearlier decisions do not support the Government’s submission thatfalse statements, as a general rule, are beyond constitutionalprotection. That conclusion would take the quoted language far fromits proper context. For instance, the Court has stated “[f]alsestatements of fact are particularly valueless [because] theyinterfere with the truth-seeking function of the marketplace ofideas,” Hustler Magazine, Inc. v. Falwell, 485 U.S.46, 52 (1988), and that false statements “are not protected bythe First Amendment in the same manner as truthful statements,”Brown v. Hartlage, 456 U.S.45, 60–61 (1982). See also, e.g., Virginia Bd. ofPharmacy, supra, at 771 (“Untruthful speech, commercialor otherwise, has never been protected for its own sake”);Herbert v. Lando, 441 U.S.153, 171 (1979) (“Spreading false information in and of itselfcarries no First Amendment credentials”); Gertz,supra, at 340 (“[T]here is no constitutional value in falsestatements of fact”); Garrison v. Louisiana,379 U.S.64, 75 (1964) (“[T]he knowingly false statement and the falsestatement made with reckless disregard of the truth, do not enjoyconstitutional protection”).These quotations all derive from casesdiscussing def-amation, fraud, or some other legally cognizableharm associated with a false statement, such as an invasion ofprivacy or the costs of vexatious litigation. See Brief for UnitedStates 18–19. In those decisions the falsity of the speech at issuewas not irrelevant to our analysis, but neither was itdeterminative. The Court has never endorsed the categorical rulethe Government advances: that false statements receive no FirstAmendment protection. Our prior decisions have not confronted ameasure, like the Stolen Valor Act, that targets falsity andnothing more.Even when considering some instances ofdefamation and fraud, moreover, the Court has been careful toinstruct that falsity alone may not suffice to bring the speechoutside the First Amendment. The statement must be a knowing orreckless falsehood. See Sullivan, supra, at 280(prohibiting recovery of damages for a defamatory falsehood madeabout a public official unless the statement was made “withknowledge that it was false or with reckless disregard of whetherit was false or not”); see also Garrison, supra, at73 (“[E]ven when the utterance is false, the great principles ofthe Constitution which secure freedom of expression ...preclude attaching adverse consequences to any except the knowingor reckless falsehood”); Illinois ex rel. Madigan v.Telemarketing Associates, Inc., 538U.S. 600, 620 (2003) (“False statement alone does not subject afundraiser to fraud liability”).The Government thus seeks to use this principlefor a new purpose. It seeks to convert a rule that limits liabilityeven in defamation cases where the law permits recovery fortortious wrongs into a rule that expands liability in a different,far greater realm of discourse and expression. That inverts therationale for the exception. The requirements of a knowingfalsehood or reckless disregard for the truth as the condition forrecovery in certain defamation cases exists to allow more speech,not less. A rule designed to tolerate certain speech ought notblossom to become a rationale for a rule restricting it.The Government then gives three examples ofregulations on false speech that courts generally have foundper-missible: first, the criminal prohibition of a false statementmade to a Government official, 18 U.S.C. §1001; second,laws punishing perjury; and third, prohibi-tions on the falserepresentation that one is speaking as a Government official or onbehalf of the Government, see, e.g., §912; §709. Theserestrictions, however, do not establish a principle that allproscriptions of false statements are exempt from exacting FirstAmendment scrutiny.The federal statute prohibiting false statementsto Government officials punishes “whoever, in any matter within thejurisdiction of the executive, legislative, or judicial branch ofthe Government ... makes any mate-rially false,fictitious, or fraudulent statement or repre-sentation.” §1001.Section 1001’s prohibition on false statements made to Governmentofficials, in communications concerning official matters, does notlead to the broader proposition that false statements areunprotected when made to any person, at any time, in anycontext.The same point can be made about what the Courthas confirmed is the “unquestioned constitutionality of perjurystatutes,” both the federal statute, §1623, and its state-lawequivalents. United States v. Grayson, 438 U.S.41, 54 (1978). See also Konigsberg v. State Bar ofCal., 366 U.S.36, 51, n.10 (1961). It is not simply because perjuredstatements are false that they lack First Amendment protection.Perjured testimony “is at war with justice” because it can cause acourt to render a “judgment not resting on truth.” In reMichael, 326 U.S.224, 227 (1945). Perjury undermines the function and provinceof the law and threatens the integrity of judgments that are thebasis of the legal system. See United States v.Dunnigan, 507 U.S.87, 97 (1993) (“To uphold the integrity of our trial system... the constitutionality of perjury statutes isunquestioned”). Unlike speech in other contexts, testi-mony underoath has the formality and gravity necessary to remind the witnessthat his or her statements will be the basis for officialgovernmental action, action that often affects the rights andliberties of others. Sworn testimony is quite distinct from liesnot spoken under oath and sim-ply intended to puff up oneself.Statutes that prohibit falsely representing thatone is speaking on behalf of the Government, or that prohibitim-personating a Government officer, also protect the integrity ofGovernment processes, quite apart from merely restricting falsespeech. Title 18 U.S.C. §912, for ex-ample, prohibitsimpersonating an officer or employee of the United States. Even ifthat statute may not require proving an “actual financial orproperty loss” resulting from the deception, the statute is itselfconfined to “maintain[ing] the general good repute and dignity of... government ... service itself.”United States v. Lepowitch, 318U.S. 702, 704 (1943) (internal quotation marks omitted). Thesame can be said for prohibitions on the unauthorized use of thenames of federal agencies such as the Federal Bureau ofInvestigation in a manner calculated to convey that thecommunication is approved, see §709, or using words such as“Federal” or “United States” in the collection of private debts inorder to convey that the communication has official authorization,see §712. These examples, to the extent that they implicate fraudor speech integral to criminal conduct, are inapplicable here.As our law and tradition show, then, there areinstances in which the falsity of speech bears upon whether it isprotected. Some false speech may be prohibited even if analogoustrue speech could not be. This opinion does not imply that any ofthese targeted prohibitions are somehow vulnerable. But it alsorejects the notion that false speech should be in a generalcategory that is presumptively unprotected.Although the First Amendment stands against any“freewheeling authority to declare new categories of speech outsidethe scope of the First Amendment,” Stevens, 559 U.S.,at ___ (slip op., at 9), the Court has acknowledged that perhapsthere exist “some categories of speech that have been historicallyunprotected ... but have not yet been specificallyidentified or discussed ... in our case law.”Ibid. Before exempting a category of speech from the normalprohibition on content-based re-strictions, however, the Court mustbe presented with “per-suasive evidence that a novel restriction oncontent is part of a long (if heretofore unrecognized) tradition ofproscription,” Brown v. Entertainment MerchantsAssn., 564 U.S. ___, ___ (2011) (slip op., at 4). TheGovernment has not demonstrated that false statements generallyshould constitute a new category of unprotected speech on thisbasis.IIIThe probable, and adverse, effect of the Acton free- dom of expression illustrates, in a fundamental way, thereasons for the Law’s distrust of content-based speechprohibitions.The Act by its plain terms applies to a falsestatement made at any time, in any place, to any person. It can beassumed that it would not apply to, say, a theatrical performance.See Milkovich v. Lorain Journal Co., 497 U.S.1, 20 (1990) (recognizing that some statements nominallypurporting to contain false facts in reality “cannot reasonably beinterpreted as stating actual facts about an individual” (internalquotation marks and brackets omitted)). Still, the sweeping, quiteunprecedented reach of the statute puts it in conflict with theFirst Amendment. Here the lie was made in a public meeting, but thestatute would apply with equal force to personal, whisperedconversations within a home. The statute seeks to control andsuppress all false statements on this one subject in almostlimitless times and settings. And it does so en-tirely withoutregard to whether the lie was made for the purpose of materialgain. See San Francisco Arts & Athletics, Inc. v.United States Olympic Comm., 483 U.S.522, 539–540 (1987) (prohibiting a nonprofit corporation fromexploiting the “commercial magnetism” of the word “Olym-pic” whenorganizing an athletic competition (internal quotation marksomitted)).Permitting the government to decree this speechto be a criminal offense, whether shouted from the rooftops or madein a barely audible whisper, would endorse government authority tocompile a list of subjects about which false statements arepunishable. That governmental power has no clear limitingprinciple. Our constitutional tradition stands against the ideathat we need Oceania’s Ministry of Truth. See G. Orwell, NineteenEighty-Four (1949) (Centennial ed. 2003). Were this law to besustained, there could be an endless list of subjects the NationalGovernment or the States could single out. Where false claims aremade to effect a fraud or secure moneys or other valuableconsiderations, say offers of employment, it is well establishedthat the Government may restrict speech without affronting theFirst Amendment. See, e.g., Virginia Bd. of Pharmacy, 425U.S., at 771 (noting that fraudulent speech generally fallsoutside the protections of the First Amendment). But the StolenValor Act is not so limited in its reach. Were the Court to holdthat the interest in truthful discourse alone is sufficient tosustain a ban on speech, absent any evidence that the speech wasused to gain a material advantage, it would give government a broadcensorial power unprecedented in this Court’s cases or in ourconstitutional tradition. The mere potential for the exercise ofthat power casts a chill, a chill the First Amendment cannot permitif free speech, thought, and discourse are to remain a foundationof our freedom.IVThe previous discussion suffices to show thatthe Act conflicts with free speech principles. But even whenexamined within its own narrow sphere of operation, the Act cannotsurvive. In assessing content-based restrictions on protectedspeech, the Court has not adopted a free-wheeling approach, seeStevens, 559 U.S., at ___ (slip op., at 7) (“The FirstAmendment’s guarantee of free speech does not extend only tocategories of speech that survive an adhoc balancing ofrelative social costs and benefits”), but rather has applied the“most exacting scrutiny.” Turner Broadcasting System, Inc.v. FCC, 512 U.S.622, 642 (1994). Although the objectives the Government seeksto further by the statute are not without significance, the Courtmust, and now does, find the Act does not satisfy exactingscrutiny.The Government is correct when it statesmilitary medals “serve the important public function of recognizingand expressing gratitude for acts of heroism and sacrifice inmilitary service,” and also “‘foste[r] morale, missionaccomplishment and esprit de corps’ among service members.” Brieffor United States 37, 38. General George Washington observed thatan award for valor would “cherish a virtuous ambition in... soldiers, as well as foster and encourage everyspecies of military merit.” General Orders of George WashingtonIssued at Newburgh on the Hudson, 1782–1783 (Aug. 7, 1782),p.30 (E. Boynton ed. 1883). Time has not diminished thisidea. In periods of war and peace alike public recognition of valorand noble sacrifice by men and women in uniform reinforces thepride and national resolve that the military relies upon to fulfillits mission.These interests are related to the integrity ofthe military honors system in general, and the Congressional Medalof Honor in particular. Although millions have served with braveresolve, the Medal, which is the highest military award for valoragainst an enemy force, has been given just 3,476 times.Established in 1861, the Medal is reserved for those who havedistinguished themselves “conspicuously by gallantry andintrepidity at the risk of his life above and beyond the call ofduty.” 10 U.S.C. §§3741 (Army), 6241 (Navy and MarineCorps), 8741 (Air Force), 14 U.S.C. §491 (Coast Guard).The stories of those who earned the Medal inspire and fascinate,from Dakota Meyer who in 2009 drove five times into the midst of aTaliban ambush to save 36 lives, see Curtis, President Obama AwardsMedal of Honor to Dakota Meyer, The White House Blog (Sept. 15,2011) (all Internet materials as visited June 25, 2012, andavailable in Clerk of Court’s case file); to Desmond Doss whoserved as an army medic on Okinawa and on June 5, 1945, rescued 75fellow soldiers, and who, after being wounded, gave up his ownplace on a stretcher so others could be taken to safety, seeAmerica’s Heroes 88–90 (J. Willbanks ed. 2011); to William Carneywho sustained multiple gunshot wounds to the head, chest, legs, andarm, and yet carried the flag to ensure it did not touch the groundduring the Union army’s assault on Fort Wagner in July 1863,id., at 44–45. The rare acts of courage the Medal celebratesled President Truman to say he would “rather have that medal roundmy neck than ... be president of the United States.”Truman Gives No. 1 Army Medal to 15 Heroes, Washington Post,Oct. 13, 1945, p.5. The Government’s interest in protectingthe integrity of the Medal of Honor is beyond question.But to recite the Government’s compellinginterests is not to end the matter. The First Amendment requiresthat the Government’s chosen restriction on the speech at issue be“actually necessary” to achieve its interest. En-tertainmentMerchants Assn., 564 U.S., at ___ (slip op., at 12).There must be a direct causal link between the restriction imposedand the injury to be prevented. See ibid. The link betweenthe Government’s interest in protecting the integrity of themilitary honors system and the Act’s restriction on the falseclaims of liars like respondent has not been shown. Althoughappearing to concede that “an isolated misrepresentation by itselfwould not tarnish the meaning of military honors,” the Governmentasserts it is “common sense that false representations have thetendency to dilute the value and meaning of military awards,” Brieffor United States 49, 54. It must be acknowledged that when apretender claims the Medal to be his own, the lie might harm theGovernment by demeaning the high purpose of the award, diminishingthe honor it confirms, and creating the appearance that the Medalis awarded more often than is true. Furthermore, the lie may offendthe true holders of the Medal. From one perspective it in-sultstheir bravery and high principles when falsehood puts them in theunworthy company of a pretender.Yet these interests do not satisfy theGovernment’s heavy burden when it seeks to regulate protectedspeech. See United States v. Playboy Entertainment Group,Inc., 529 U.S.803, 818 (2000). The Government points to no evidence tosupport its claim that the public’s general perception of militaryawards is diluted by false claims such as those made by Alvarez.Cf. Entertainment Merchants Assn., supra, at ___–___ (slipop., at 12–13) (analyzing and rejecting the findings of researchpsychologists demonstrating the causal link between violent videogames and harmful effects on children). As one of the Government’samici notes “there is nothing that charlatans such as XavierAlvarez can do to stain [the Medal winners’] honor.” Brief forVeterans of Foreign Wars of the United States etal. asAmici Curiae 1. This general proposition is sound, even iftrue holders of the Medal might experience anger andfrustration.The lack of a causal link between theGovernment’s stated interest and the Act is not the only way inwhich the Act is not actually necessary to achieve the Government’sstated interest. The Government has not shown, and cannot show, whycounterspeech would not suffice to achieve its interest. The factsof this case indicate that the dynamics of free speech, ofcounterspeech, of refutation, can overcome the lie. Respondent liedat a public meeting. Even before the FBI began investigating himfor his false statements “Alvarez was perceived as a phony,” 617F.3d, at 1211. Once the lie was made public, he was ridiculedonline, see Brief for Respondent 3, his actions were reported inthe press, see Ortega, Alvarez Again Denies Claim, Ontario, CA,Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow boardmember called for his resignation, see, e.g., Bigham, WaterDistrict Rep Requests Alvarez Resign in Wake of False Medal Claim,San Bernardino Cty., CA, The Sun (May 21, 2008). There is goodreason to believe that a similar fate would befall other falseclaimants. See Brief for Reporters Committee for Freedom of thePress et al. as Amici Curiae 30–33 (listing numerousexamples of public exposure of false claimants). Indeed, theoutrage and contempt expressed for respondent’s lies can serve toreawaken and reinforce the public’s respect for the Medal, itsrecipients, and its high purpose. The acclaim that recipients ofthe Congressional Medal of Honor receive also casts doubt on theproposition that the public will be misled by the claims ofcharlatans or become cynical of those whose heroic deeds earnedthem the Medal by right. See, e.g., Well Done, WashingtonPost, Feb. 5, 1943, p.8 (reporting on Pres-identRoosevelt’s awarding the Congressional Medal of Honor to Maj. Gen.Alexander Vandegrift); Devroy, Medal of Honor Given to 2 Killed inSomalia, Washington Post, May 24, 1994, p.A6(reporting on President Clinton’s awarding the Congressional Medalof Honor to two special forces soldiers killed during operations inSomalia).The remedy for speech that is false is speechthat is true. This is the ordinary course in a free society. Theresponse to the unreasoned is the rational; to the uninformed, theenlightened; to the straight-out lie, the simple truth. SeeWhitney v. California, 274 U.S.357, 377 (1927) (Brandeis, J., concurring) (“If there be timeto expose through discussion the falsehood and fallacies, to avertthe evil by the processes of education, the remedy to be ap-pliedis more speech, not enforced silence”). The theory of ourConstitution is “that the best test of truth is the power of thethought to get itself accepted in the competition of the market,”Abrams v. United States, 250U.S. 616, 630 (1919) (Holmes, J., dissenting). The FirstAmendment itself ensures the right to respond to speech we do notlike, and for good reason. Freedom of speech and thought flows notfrom the beneficence of the state but from the inalienable rightsof the person. And suppression of speech by the government can makeexposure of falsity more difficult, not less so. Society has theright and civic duty to engage in open, dynamic, rationaldiscourse. These ends are not well served when the government seeksto orchestrate public discussion through content-basedmandates.Expressing its concern that counterspeech isinsuf- ficient, the Government responds that because “some militaryrecords have been lost ... some claims [are]un-verifiable,” Brief for United States 50. This proves little,however; for without verifiable records, successful criminalprosecution under the Act would be more difficult in any event. So,in cases where public refutation will not serve the Government’sinterest, the Act will not either. In addition, the Governmentclaims that “many [false claims] will remain unchallenged.”Id., at 55. The Government provides no support for thecontention. And in any event, in order to show that publicrefutation is not an adequate alternative, the Government mustdemonstrate that unchallenged claims undermine the public’sperception of the military and the integrity of its awards system.This showing has not been made.It is a fair assumption that any true holders ofthe Medal who had heard of Alvarez’s false claims would have beenfully vindicated by the community’s expression of outrage, showingas it did the Nation’s high regard for the Medal. The same can besaid for the Government’s interest. The American people do not needthe assistance of a government prosecution to express their highregard for the special place that military heroes hold in ourtradi-tion. Only a weak society needs government protection orintervention before it pursues its resolve to preserve the truth.Truth needs neither handcuffs nor a badge for its vindication.In addition, when the Government seeks toregulate protected speech, the restriction must be the “leastrestrictive means among available, effective alternatives.”Ashcroft, 542 U.S., at 666. There is, however, atleast one less speech-restrictive means by which the Governmentcould likely protect the integrity of the military awards system. AGovernment-created database could list Congressional Medal of Honorwinners. Were a database accessible through the Internet, it wouldbe easy to verify and expose false claims. It appears some privateindividuals have already created databases similar to this, seeBrief for Respondent 25, and at least one data- base of pastwinners is online and fully searchable, see Congressional Medal ofHonor Society, Full Archive,http://www.cmohs.org/recipient-archive.php. The Solicitor Generalresponds that although Congress and the Department of Defenseinvestigated the feasibility of establishing a database in 2008,the Government “concluded that such a database would beimpracticable and insuf-ficiently comprehensive.” Brief for UnitedStates 55. Without more explanation, it is difficult to assess theGov-ernment’s claim, especially when at least one database ofCongressional Medal of Honor winners already exists.The Government may have responses to some ofthese criticisms, but there has been no clear showing of thenecessity of the statute, the necessity required by exactingscrutiny.*  *  *The Nation well knows that one of the costs ofthe First Amendment is that it protects the speech we detest aswell as the speech we embrace. Though few might find respondent’sstatements anything but contemptible, his right to make thosestatements is protected by the Constitution’s guarantee of freedomof speech and expression. The Stolen Valor Act infringes uponspeech protected by the First Amendment.The judgment of the Court of Appeals isaffirmed.It is so ordered.

SUPREME COURT OF THE UNITED STATES_________________No. 11–210_________________UNITED STATES, PETITIONER v. XAVIERALVAREZon writ of certiorari to the united statescourt of appeals for the ninth circuit[June 28, 2012]Justice Breyer, with whom Justice Kagan joins,con- curring in the judgment.I agree with the plurality that the Stolen ValorAct of 2005 violates the First Amendment. But I do not rest myconclusion upon a strict categorical analysis. Ante, at4–10. Rather, I base that conclusion upon the fact that the statuteworks First Amendment harm, while the Government can achieve itslegitimate objectives in less restrictive ways.IIn determining whether a statute violates theFirst Amendment, this Court has often found it appropriate toexamine the fit between statutory ends and means. In doing so, ithas examined speech-related harms, justifications, and potentialalternatives. In particular, it has taken account of theseriousness of the speech-related harm the provision will likelycause, the nature and importance of the provision’s countervailingobjectives, the extent to which the provision will tend to achievethose objectives, and whether there are other, less restrictiveways of doing so. Ultimately the Court has had to determine whetherthe statute works speech-related harm that is out of proportion toits justifications.Sometimes the Court has referred to thisapproach as “intermediate scrutiny,” sometimes as “proportionality”review, sometimes as an examination of “fit,” and sometimes it hasavoided the application of any label at all. See, e.g., TurnerBroadcasting System, Inc. v. FCC, 512 U.S.622, 641–652 (1994) (intermediate scrutiny); Randall v.Sorrell, 548 U.S.230, 249 (2006) (plurality opinion) (proportionality); Boardof Trustees of State Univ. of N.Y. v. Fox,492 U.S.469, 480 (1989) (requiring a “fit” be- tween means and endsthat is “‘in proportion to the in- terest served’”);In re R. M. J., 455 U.S.191, 203 (1982) (“[I]nterference with speech must be inproportion to the [substantial governmental] interest served”);Pickering v. Board of Ed. of Township High School Dist.205, Will Cty., 391 U.S.563, 568 (1968).Regardless of the label, some such approach isnecessary if the First Amendment is to offer proper protection inthe many instances in which a statute adversely affectsconstitutionally protected interests but warrants neithernear-automatic condemnation (as “strict scrutiny” implies) nornear-automatic approval (as is implicit in “rational basis”review). See, e.g., Turner Broadcasting System, Inc.,supra, at 641–652 (“must-carry” cable regulations);Central Hudson Gas & Elec. Corp. v. Public Serv.Comm’n of N.Y., 447 U.S.557, 566 (1980) (nonmisleading commercial speech);Burdick v. Takushi, 504 U.S.428, 433–434 (1992) (election regulation); Pickering,supra, at 568 (government employee speech); UnitedStates v. O’Brien, 391 U.S.367, 377 (1968) (application of generally appli- cable laws toexpressive conduct). I have used the term “proportionality” todescribe this approach. Thompson v. Western StatesMedical Center, 535 U.S.357, 388 (2002) (dissenting opinion); see also Bartnickiv. Vopper, 532 U.S.514, 536 (2001) (concurring opinion); Nixon v. ShrinkMissouri Government PAC, 528 U.S.377, 402–403 (2000) (concurring opinion). But in this case, theCourt’s term “intermediate scrutiny” describes what I think weshould do.As the dissent points out, “there are broadareas in which any attempt by the state to penalize purportedlyfalse speech would present a grave and unacceptable dan- ger ofsuppressing truthful speech.” Post, at 14. Laws restrictingfalse statements about philosophy, religion, history, the socialsciences, the arts, and the like raise such concerns, and in manycontexts have called for strict scrutiny. But this case does notinvolve such a law. The dangers of suppressing valuable ideas arelower where, as here, the regulations concern false statementsabout easily verifiable facts that do not concern such subjectmatter. Such false factual statements are less likely than are truefactual statements to make a valuable contribution to themarketplace of ideas. And the government often has good reasons toprohibit such false speech. See infra, at 5–7 (listingexamples of statutes and doctrines regulating false factualspeech). But its regulation can nonetheless threaten speech-relatedharms. Those circ*mstances lead me to apply what the Court hastermed “intermediate scrutiny” here.IIAThe Stolen Valor Act makes it a crime“falsely” to “represen[t]” oneself “to have been awarded anydecoration or medal authorized by Congress for the Armed Forces ofthe United States.” 18 U.S.C. §704(b). I would read thestatute favorably to the Government as criminalizing only falsefactual statements made with knowledge of their fal- sity and withthe intent that they be taken as true. See Staples v.United States, 511 U.S.600, 605 (1994) (courts construe statutes “in light of thebackground rules of the common law, ... in which therequirement of some mens rea for a crime is firmlyembedded”); cf. New York Times Co. v. Sullivan,376 U.S.254, 279–280 (1964) ( First Amendment allows a public officialto recover for defamation only upon a showing of “‘actualmalice’”). As so interpreted the statute covers only lies.But although this interpretation diminishes the extent to which thestatute endangers First Amendment values, it does not eliminate thethreat.I must concede, as the Government points out,that this Court has frequently said or implied that false factualstatements enjoy little First Amendment protection. See,e.g., BE&K Constr. Co. v. NLRB, 536 U.S.516, 531 (2002) (“[F]alse statements may be unprotected fortheir own sake”); Hustler Magazine, Inc. v. Falwell,485 U.S.46, 52 (1988) (“False statements of fact are particularlyvalueless”); Gertz v. Robert Welch, Inc., 418 U.S.323, 340 (1974) (“[T]he erroneous statement of fact is notworthy of constitutional protection”).But these judicial statements cannot be read tomean “no protection at all.” False factual statements can serveuseful human objectives, for example: in social contexts, wherethey may prevent embarrassment, protect privacy, shield a personfrom prejudice, provide the sick with comfort, or preserve achild’s innocence; in public contexts, where they may stop a panicor otherwise preserve calm in the face of danger; and even intechnical, philosophical, and scientific contexts, where (asSocrates’ methods suggest) examination of a false statement (evenif made deliberately to mislead) can promote a form of thought thatultimately helps realize the truth. See, e.g., 638 F.3d 666,673–675 (CA9 2011) (Kozinski, J., concurring in denial of rehearingen banc) (providing numerous examples); S. Bok, Lying: Moral Choicein Public and Private Life (1999) (same); New York TimesCo., supra, at 279, n.19 (“Even a false statementmay be deemed to make a valuable contribution to public debate,since it brings about ‘the clearer perception and livelierimpression of truth, produced by its collision with error’”(quoting J. Mill, On Liberty 15 (Blackwell ed. 1947))).Moreover, as the Court has often said, thethreat of criminal prosecution for making a false statement caninhibit the speaker from making true statements, thereby “chilling”a kind of speech that lies at the First Amendment’s heart. See,e.g., Gertz, supra, at 340–341. Hence, the Courtemphasizes mens rea requirements that provide “breathingroom” for more valuable speech by reducing an honest speaker’s fearthat he may accidentally incur liability for speaking.Further, the pervasiveness of false statements,made for better or for worse motives, made thoughtlessly or de-liberately, made with or without accompanying harm, provides aweapon to a government broadly empowered to prosecute falsitywithout more. And those who are unpopular may fear that thegovernment will use that weapon selectively, say by prosecuting apacifist who sup- ports his cause by (falsely) claiming to havebeen a war hero, while ignoring members of other political groupswho might make similar false claims.I also must concede that many statutes andcommon-law doctrines make the utterance of certain kinds of falsestatements unlawful. Those prohibitions, however, tend to benarrower than the statute before us, in that they limit the scopeof their application, sometimes by requiring proof of specific harmto identifiable victims; sometimes by specifying that the lies bemade in contexts in which a tangible harm to others is especiallylikely to occur; and sometimes by limiting the prohibited lies tothose that are particularly likely to produce harm.Fraud statutes, for example, typically requireproof of a misrepresentation that is material, upon which thevictim relied, and which caused actual injury. See Restatement(Second) of Torts §525 (1976). Defamation statutes focus uponstatements of a kind that harm the reputation of another or deterthird parties from association or dealing with the victim. Seeid., §§558, 559. Torts involving the intentional inflictionof emotional distress (like torts involving placing a victim in afalse light) concern falsehoods that tend to cause harm to aspecific victim of an emotional-, dignitary-, or privacy-relatedkind. See id., §652E.Perjury statutes prohibit a particular set offalse statements—those made under oath—while requiring a showing ofmateriality. See, e.g., 18 U.S.C. §1621.Statutes forbidding lying to a government official (not under oath)are typically limited to circ*mstances where a lie is likely towork particular and specific harm by interfering with thefunctioning of a government department, and those statutes alsorequire a showing of materiality. See, e.g., §1001.Statutes prohibiting false claims of terroristattacks, or other lies about the commission of crimes orcatastrophes, require proof that substantial public harm bedirectly foreseeable, or, if not, involve false statements that arevery likely to bring about that harm. See, e.g., 47 CFR§73.1217 (2011) (requiring showing of foreseeability and actualsubstantial harm); 18 U.S.C. §1038(a)(1) (prohibitingknowing false statements claiming that terrorist attacks havetaken, are taking, or will take, place).Statutes forbidding impersonation of a publicofficial typically focus on acts of impersonation, not merespeech, and may require a showing that, for example, someone wasdeceived into following a “course [of action] he would not havepursued but for the deceitful conduct.” United States v.Lepowitch, 318 U.S.702, 704 (1943); see, e.g., §912 (liability attaches to“[w]hoever falsely assumes or pretends to be an officer or employeeacting under the authority of the United States ... andacts as such” (emphasis added)).Statutes prohibiting trademark infringementpresent, perhaps, the closest analogy to the present statute.Trademarks identify the source of a good; and infringement causesharm by causing confusion among potential customers (about thesource) and thereby diluting the value of the mark to its owner, toconsumers, and to the econ- omy. Similarly, a false claim ofpossession of a medal or other honor creates confusion about who isentitled to wear it, thus diluting its value to those who haveearned it, to their families, and to their country. But trademarkstatutes are focused upon commercial and promotional activitiesthat are likely to dilute the value of a mark. Indeed, theytypically require a showing of likely confusion, a showing thattends to assure that the feared harm will in fact take place. See15 U.S.C. §1114(1)(a); KP Permanent Make-Up,Inc. v. Lasting Impression I, Inc., 543 U.S.111, 117 (2004); see also San Francisco Arts &Athletics, Inc. v. United States Olympic Comm.,483 U.S.522, 539–540, 548 (1987) (upholding statute giving the UnitedStates Olympic Committee the right to prohibit certaincommercial and promotional uses of the word “Olympic”).While this list is not exhaustive, it issufficient to show that few statutes, if any, simply prohibitwithout limitation the telling of a lie, even a lie about oneparticular matter. Instead, in virtually all these instanceslimitations of context, requirements of proof of injury, and thelike, narrow the statute to a subset of lies where specific harm ismore likely to occur. The limitations help to make certain that thestatute does not allow its threat of liability or criminalpunishment to roam at large, discouraging or forbidding the tellingof the lie in contexts where harm is unlikely or the need for theprohibition is small.The statute before us lacks any such limitingfeatures. It may be construed to prohibit only knowing andintentional acts of deception about readily verifiable facts withinthe personal knowledge of the speaker, thus reducing the risk thatvaluable speech is chilled. Supra, at 3–4. But it stillranges very broadly. And that breadth means that it creates asignificant risk of First Amendment harm. As written, it applies infamily, social, or other private contexts, where lies will oftencause little harm. It also applies in political contexts, wherealthough such lies are more likely to cause harm, the risk ofcensorious se- lectivity by prosecutors is also high. Further,given the potential haziness of individual memory along with thelarge number of military awards covered (ranging from medals forrifle marksmanship to the Congressional Medal of Honor), thereremains a risk of chilling that is not completely eliminated bymens rea requirements; a speaker might still be worriedabout being prosecuted for a careless false statement, evenif he does not have the intent required to render him liable. Andso the prohibition may be applied where it should not be applied,for example, to bar stool braggadocio or, in the political arena,subtly but selectively to speakers that the Government does notlike. These considerations lead me to believe that the statute aswritten risks significant First Amendment harm.BLike both the plurality and the dissent, Ibelieve the statute nonetheless has substantial justification. Itseeks to protect the interests of those who have sacrificed theirhealth and life for their country. The statute serves this interestby seeking to preserve intact the country’s recognition of thatsacrifice in the form of military honors. To permit those who havenot earned those honors to claim otherwise dilutes the value of theawards. Indeed, the Nation cannot fully honor those who havesacrificed so much for their country’s honor unless those who claimto have received its military awards tell the truth. Thus, thestatute risks harming protected interests but only in order toachieve a substantial countervailing objective.CWe must therefore ask whether it is possiblesubstantially to achieve the Government’s objective in lessburdensome ways. In my view, the answer to this question is “yes.”Some potential First Amendment threats can be alleviated byinterpreting the statute to require knowledge of falsity, etc.Supra, at 3–4. But other First Amendment risks, primarilyrisks flowing from breadth of coverage, remain. Supra, at4–5, 7–8. As is indicated by the limitations on the scope of themany other kinds of statutes regulating false factual speech,supra, at 5–7, it should be possible significantly todiminish or eliminate these re- maining risks by enacting a similarbut more finely tailored statute. For example, not all militaryawards are alike. Congress might determine that some warrantgreater protection than others. And a more finely tailored statutemight, as other kinds of statutes prohibiting false factualstatements have done, insist upon a showing that the falsestatement caused specific harm or at least was material, or focusits coverage on lies most likely to be harmful or on contexts wheresuch lies are most likely to cause harm.I recognize that in some contexts, particularlypolitical contexts, such a narrowing will not always be easy toachieve. In the political arena a false statement is more likely tomake a behavioral difference (say, by leading the listeners to votefor the speaker) but at the same time criminal prosecution isparticularly dangerous (say, by radically changing a potentialelection result) and consequently can more easily result incensorship of speakers and their ideas. Thus, the statute may haveto be significantly narrowed in its applications. Some lower courtshave upheld the constitutionality of roughly comparable butnarrowly tailored statutes in political contexts. See, e.g.,United We Stand America, Inc. v. United We Stand, AmericaNew York, Inc., 128 F.3d 86, 93 (CA2 1997) (upholding against First Amendmentchallenge application of Lanham Act to a political organization);Treasure of the Committee to Elect Gerald D. Lostracco v.Fox, 150 Mich. App. 617, 389 N.W.2d 446 (1986) (upholdingunder First Amendment statute prohibiting campaign material falselyclaiming that one is an incumbent). Without expressing any view onthe validity of those cases, I would also note, like the plurality,that in this area more accurate information will normallycounteract the lie. And an accurate, publicly available register ofmilitary awards, easily obtainable by political opponents, may welladequately protect the integrity of an award against those whowould falsely claim to have earned it. See ante, at 17–18.And so it is likely that a more narrowly tailored statute combinedwith such information-disseminating devices will effectively serveCongress’ end.The Government has provided no convincingexplanation as to why a more finely tailored statute would notwork. In my own view, such a statute could significantly reduce thethreat of First Amendment harm while permitting the statute toachieve its important protective objective. That being so, I findthe statute as presently drafted works disproportionateconstitutional harm. It consequently fails intermediate scrutiny,and so violates the First Amendment.For these reasons, I concur in the Court’sjudgment.