“Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”

— Justice Anthony Kennedy

Concurring Opinion by Justice Breyer

Justice Stephen Breyer, joined by Justice Kagan in his concurrence, employs an intermediate scrutiny review of the Stolen Valor Act. Breyer explained that he used the less stringent intermediate scrutiny instead of strict scrutiny because “the dangers of suppressing valuable ideas are lower where, as here, the regulations concern false statements about easily verifiable facts that do not concern such subject matter.” Under this standard, the Court considers the following:

1. The seriousness of the speech-related harm caused by the provision.

2. The nature and importance of the government’s objective.

3. he extent that the provision will achieve the government’s objective.

4. Whether there are less restrictive options available

While Breyer gave more weight to the government’s interest in defending military honors than the plurality’s opinion did, Breyer ultimately agreed with them that the effects of the Stolen Valor Act could be chilling on free speech. He wrote, “the pervasiveness of false statements. . . provides a weapon to a government broadly empowered to prosecute falsity without more. And those who are unpopular may fear that the government will use that weapon selectively, say, by prosecuting a pacifist who supports his cause by (falsely) claiming to have been a war hero, while ignoring members of other political groups who might make similar false claims.” After pointing to several alternative methods for the government to use to achieve their goal, Breyer concluded that the Stolen Valor Act was unconstitutional under the First Amendment.

In his dissenting opinion, Justice Samuel Alito defended the constitutionality of the Stolen Valor Act, arguing that it was narrowly tailored enough to only target the false speech deemed harmful to the honor and dignity of the armed forced. He explained that the act is strictly viewpoint neutral and rooted in historical tradition, pointing to George Washington’s warning that “anyone with the ‘insolence to assume’ a badge that had not actually been earned would be ‘severely punished.’”

Alito asserted that the government has a legitimate and tangible interest achieved by the act in protecting military families from substantial emotional harm and preventing fraud at the Department of Veterans Affairs. He explained that simple “counter speech” is not enough to remedy the damage inflicted by the false statements the Court is dealing with, writing “[s]urely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country’s top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags.”

Alito also wrote that “[t]ime and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value.” He argued that since the statements targeted by the narrow scope of the act are only ones that are false, it is not offensive to the First Amendment. In response to fears that the scope of the act is too broad and may give legislatures permission to extend their regulations on speech, Alito explained, “[t]he objection to this hypothetical law would be the same as the objection to a law making it a crime to eat potato chips during the graduation ceremony at which the high school valedictorian is recognized. The safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional.”